Miller v. Pacific County

Dolliver, J.

This matter comes to us on direct appeal from the Superior Court of Pacific County.

The chronology of events is of particular importance in this case. In 1972, plaintiff, the Prosecuting Attorney for Pacific County, got into a dispute with the Commissioners of Pacific County relative to the location by plaintiff of an office in Raymond, outside the county seat of South Bend, and the refusal of the commissioners to approve the claim of plaintiff for expenditures incurred in connection with this office.

In April 1973, plaintiff applied for a writ of mandamus to direct the commissioners to approve and allow the claim for expense for the Raymond office. The writ was denied in the Pacific County Superior Court. The matter then came to the Court of Appeals, and in Miller v. Pacific County, 9 Wn. App. 177, 509 P.2d 377 (1973), the court held that, absent a formal revision of the prosecutor's budget under the provisions of RCW 36.40.100 — which was not done — the county commissioners did not have the power to refuse to approve the expenses for the Raymond office and their refusal to do so was arbitrary.

The matter was remanded to the Superior Court for Pacific County with instructions to issue the writ of mandamus sought by the prosecutor. This writ was issued on February 4, 1974. It commanded the county commissioners to:

forthwith approve and allow payment of all claims submitted by the Pacific County Prosecuting Attorney to defendant county to the extent that county funds have been appropriated within the classification for which said claims have been, or shall be made, for the Office of the *746Pacific County Prosecuting Attorney, and without regard to where said funds are expended.

Even with the issuance of the writ, however, it appears from the record that the commissioners and the prosecutor were unable to resolve their differences.

Subsequently, in the Democratic primary for prosecuting attorney in 1974, plaintiff was defeated by a margin of 1,363 to 3,606 votes. In the general election, plaintiff received as a write-in candidate, 25 votes as a Republican and 3 as a Democrat. The winner received 4,614 votes.

On March 14, 1975, following his rejection by the people of Pacific County, plaintiff amended his application for a writ of mandate and now asks damages of nearly $300,000 from the same electorate which removed him from office. Subsequently, on December 5, 1975, the trial judge issued a pretrial order prohibiting plaintiff from recovering for damages other than "special monetary expenses or outlays directly resulting from the delay in obtaining payment of his vouchers and those incurred in obtaining the writ of mandamus." The amount of such expenses was stipulated and on May 13, 1976, the trial judge entered judgment for plaintiff in the sum of $231.

From the extensive briefs, memoranda, statements and testimony, it is evident the conflict between plaintiff and the commissioners was of a political nature. As is usual and proper in such cases, the final determination of the dispute was by the voters. In this instance, the voters inflicted a massive defeat on plaintiff.

Plaintiff now asks the courts to elevate this political controversy between elected officials out of the realm of ordinary political dialogue and into the realm of an intentional tort. This we refuse to do.

If the formal procedures of RCW 36.40.100 had been followed, the refusal to approve the expenses for the Raymond office — a discretionary act — would not have been tortious. Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965); King v. Seattle, 84 Wn.2d 239, 525 P.2d 228 (1974). The crucial question thus becomes *747whether, in taking an action not subject to tort recovery, the defendants became liable in tort because they failed to follow proper procedure.

In King v. Seattle, supra, which involved arbitrary administrative actions by nonelected officials, we held " [I]t is improper to extend the discretionary activity analysis to those cases where employees do not render a considered decision or render decisions that no reasonable official would have adopted." King, at 247. To extend this standard, however, to legislative activities of elected officials, no matter how misconceived or misexecuted such activities might be, would render the legislative process inoperable and involve this court in a flagrant invasion of the prerogatives of the legislative branch of government.

It is clear the action taken by the commissioners, however maladroitly, was in their legislative capacity. No contention is made by plaintiff to the contrary. It is one thing to require state and county legislative bodies to follow constitutional and statutory requirements (see, e.g., Barde v. State, 90 Wn.2d 470, 584 P.2d 390 (1978); State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 492 P.2d 1012 (1972); Miller v. Pacific County, supra; State ex rel. King County v. Superior Court, 33 Wn.2d 76, 204 P.2d 514 (1949)); it is quite another matter to countenance the bringing by dissatisfied constituents of an action in tort against a legislative body whose actions are alleged to be or are in fact neither "considered" nor "reasonable". Although these virtues are eminently desirable and to be hoped for on the part of all legislative bodies, they are neither required nor always apparent.

Plaintiff has supplied the court with no authority holding elected legislators liable for unreasonableness, lack of consideration, bad faith or improper motivations — other than the events of a subsequent election — and we will not by this case supply such authority. See Shellburne, Inc. v. Roberts, 43 Del. Ch. 485, 238 A.2d 331 (1968); R. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev. 303, 318 (1959).

*748Even, however, if it were to be conceded for the sake of argument that the action of defendants was tortious, should this plaintiff be allowed to recover?

This is not the usual case of an ordinary citizen confronting the wrongful and arbitrary actions of government. Rather, the parties here are volunteers who sought and gained public elective office. The possibility of defeat at the next election and the expectation the relationships among elected officials may not always reflect the highest and purest motives are well known concomitants of public office. This being so, the passions of political controversy between elected officials, as represented in this case, should not be assuaged by recovery in tort. New things would be more destructive of our political system than for the courts to intervene in the political process in the manner herein urged by plaintiff.

The defendants have been required to pay the rent for the Raymond office as well as the costs occasioned by delay and those incurred in obtaining the writ of mandamus. This is as far as the plaintiff should be able to go. Neither public policy nor the law of torts requires any further recovery and none is allowed.

Affirmed.

Rosellini, Stafford, Wright, and Brachtenbach, JJ., concur.