(dissenting) — The majority gratuitously comments on a moot statute. Because I disagree both as to the propriety of reaching the question of this financing statute's validity and with the majority's discussion of its validity, I dissent.
I
A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights. Hansen v. West Coast Wholesale Drug Co., 47 Wn.2d 825, 827, 289 P.2d 718 (1955). In federal article 3 courts, mootness is related to the jurisdiction of the court. U.S. Const, art. 3, § 2 has been read to limit the jurisdiction of these *250courts to actual cases or controversies. See Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 11 L. Ed. 2d 347, 84 S. Ct. 391 (1964). A federal ruling that a case is moot, by denying the presence of a controversy, thus destroys the court's jurisdiction.
The Supreme Court has at times, however, been willing to relax this rigid rule. For instance, in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), the Court ruled on the merits of the case despite its apparent mootness. There, the Court observed that pregnancy provided a classic conclusion of nonmootness because it could be "'capable of repetition, yet evading review". Roe, at 125 (quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911)).
Washington courts have not emphasized the jurisdictional aspect of mootness. Instead, the courts have reviewed otherwise moot cases when the matters were of continuing and substantial public interest. See, e.g., Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 54, 615 P.2d 440 (1980). In Hartman v. State Game Comm'n, 85 Wn.2d 176, 177-78, 532 P.2d 614 (1975), we developed the following criteria. In deciding whether to hear such a case, the court looks to the public nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.
A fourth criterion, the likelihood that the issue will escape review because the facts of the controversy are short-lived, is also evident in our cases. For example, in Kurtz we addressed the propriety of a trial court's closure order. The order closed a public courtroom to the public and press during a suppression hearing. At the time the case was decided, the suppression hearing and trial were long over and the transcript unsealed. Given the nature of criminal procedure and the mandate of the speedy trial rule, a controversy relating to closure would almost always have passed by the time an appellate court could review the case. Thus, our decision in Kurtz is similar to Roe v. Wade, *251supra. We reached the merits there because the issue was "capable of repetition, yet evading review".
The majority's opinion makes no reference to these traditional tests for mootness. Instead, it takes notice that the mayor plans to resubmit the ordinance for enactment at a later date and then boldly asserts that "[t]he issue of the legality of the money received by some candidates would undoubtedly be tested at that time." Majority opinion, at 237. This conclusion is based on the assumption that merely because the mayor resubmits the proposal, it will be approved by the city council. Neither this assumption nor the subsequent assertion that because it will be passed it will "undoubtedly" be challenged follow from the fact that the mayor will resubmit the ordinance. Any conclusion as to the future of this ordinance is thus highly speculative. Furthermore, even if an ordinance were resubmitted, this court has no way of knowing what form it may take. Subtle changes in the new law might reverse our opinion as to its constitutionality.
Finally, had the majority applied the traditional mootness analysis set out above, the wisdom of holding that this case is moot would be obvious. First, the issue is not of current public interest because the ordinance is no longer in effect. Any interest previously generated by the statute has become academic by virtue of the city council's failure to renew it. Although reenactment of the ordinance may make it the subject of future public interest, it cannot support the inference that it is of current interest. Second, although a decision on the merits may provide some guidance to public officials, the need for that guidance cannot be shown because the issue is not now being considered. If the mayor resubmits the same ordinance and if he can secure enough votes, some guidance may be needed. Until such time, however, the public officials simply want advice. Also, the issue is not one that is likely to escape review. Unlike pregnancy or closure of suppression hearings, an appeal may be taken under any new statute before it expires. Thus, there is no need to reach the merits now. No judicial efficiency is *252guaranteed by the majority's decision to do so, since reaching the merits may not foreclose an additional future appeal under a new ordinance. Unless the subsequent ordinance is identical, a new appeal would have to be taken because a different ordinance presents different constitutional questions. Therefore, I conclude that the majority's decision to reach the merits of this case is both inappropriate and unwise.
II
Since the majority chooses to address the merits, however, I must do likewise. Here, too, I disagree with my colleagues.
The majority first describes the beneficial effects of the financing statute and concludes that such statutes do not violate the candidates' First Amendment rights. With both of these propositions, I agree. But the majority then attempts to validate this statute's constitutionality under Const, art. 8, § 7 by asserting that the campaign funds are not for the private benefit of the candidate. The majority notes:
The electoral process belongs to the public and has no counterpart in the private sector. In such a context, the words "gift" and "subsidy" as conceived by the drafters of Const, art. 8, § 7 have no application. Section 13 of ordinance 107772, codified as Seattle Municipal Code 2.04.400-.480, provides that public campaign funds may be used only for direct campaign purposes. Such funds never leave the public arena; they never go into the private pockets of the candidate for his own personal purposes. The candidate holds the funds in a fiduciary capacity and can spend only to further the objectives of the ordinance. When the campaign is over, all public funds not spent for those limited purposes must be returned to the City.
(Footnote omitted.) Majority opinion, at 240-41. This argument is logically unsound. The fact that the electoral process is public does not establish that a private individual who seeks public office for his own private fulfillment or goals is acting in the public good. Although the process *253itself may be public, the campaign of any one individual is a private matter, as is how the candidate spends the money. The majority's allegation that the funds may be spent "only to further the objectives of the ordinance" is unfounded. Once the candidate agrees to accept the funds, the only restriction contained in the ordinance is that the candidate spend the monies on the campaign. This limitation is minimal. The candidate is free to engage in any legal method of campaigning, many of which, though legal, would run counter to the objectives of the ordinance. For instance, the candidate could use the funds to purchase needed time for spot commercials which alleged that his opponent was hostile to business or that his election would cost the city jobs. The candidate could thus secure the good wishes of business and special interest groups who could independently campaign for the candidate's election, spending — by the way — as much money as they chose for that purpose.7
Furthermore, I find the City's attempt to validate this ordinance through a contract analysis equally unpersuasive, because I find that no consideration supports this alleged contract.
The city council here may have believed that it was receiving adequate consideration for its campaign contributions. This cannot, however, control the court's decision whether the consideration was legally sufficient.
From a review of these cases, it will be seen that Const, art. 8, § 7, as it has been interpreted by this court, forbids subsidies to private individuals or entities, even though they are designed to serve a public purpose and are expected to result in benefits to the State or municipality and its people. Where transactions involving the transfer of public money or property are upheld, it is upon a finding that the transferor has received value in property, pecuni*254ary return, or services.8
Does the City receive value for the contributions which it makes, pursuant to ordinance 107772, to the campaigns of candidates for city offices? Obviously, the candidates benefited under this ordinance do not deliver to the City any property or goods for the money received, nor do they render or agree to render any services. It would seem apparent, therefore, that although intended for a laudable public purpose, these campaign subsidies are gifts within the meaning of Const, art. 8, § 7, permitting the giving away of public funds only for the necessary support of the poor and infirm.
The majority ignores the issue of whether consideration exists for these funds by attempting to characterize the program as "an entitlement". The statutes cited by the majority, however, have not been validated on such nebulous grounds as an entitlement theory. The majority cites no authority for this novel theory and the constitutionality of the cited statutes is not now before this court. Several of the provisions, however, could be justified under either the "poor or infirm" exception to Const, art. 8, § 7 or through some contract analysis. For instance, in return for benefits under the crime victims compensation act, the recipient's right to sue the State was abolished. Haddenham v. State, 87 Wn.2d 145, 151, 550 P.2d 9 (1976).
The legal right to sue the State is substantial consideration, unlike the conditions which the recipient agrees to under Seattle's ordinance. These conditions might be consideration if any of them involved the giving of value to the *255City. But they do not. Most of the conditions to which the recipient agrees are already imposed by law and apply alike to recipients and nonrecipients. The one to which the City points as constituting a "detriment" to the recipient is the agreement to limit campaign expenditures.
Whether waiving the right to be free of restrictions on the amount a candidate can spend in his campaign constitutes a detriment to the candidate depends, of course, upon the circumstances of the individual candidate. If one does not have available to him resources exceeding the minimum expenditure agreed to, he loses nothing by waiving his right. On the other hand, if a candidate's resources exceed that amount, he may well hesitate to accept the City's proffer of campaign funds in exchange for an agreement to limit spending. But whatever benefit may accrue to the City by reason of the limitations imposed on expenditures by beneficiaries of the subsidy, it is not of sufficient certainty and substance to convert what would otherwise be a gift to the payment of an obligation, either legal or moral.
It is argued that a candidate who accepts the City's offer enters into a binding contract as a result. The Auditor argues that the contract is illusory, but assuming that it does impose certain obligations on the recipient, it is not a contract which affords to the City a return of value for its money. The undertaking is one of gift, conditioned on the performance of certain conditions, which hopefully will benefit the City and its people. That benefit, however, is too remote and speculative to render this case materially different from those in which subsidies to private enterprises which benefit the public have been held invalid. To hold that this possible benefit creates an obligation of the City to make contributions provided in the ordinance would erode the protection of Const, art. 8, § 7.
If the people of the state believe that such a program is desirable and necessary, even though it involves a gift of public funds, the objective can be achieved by constitutional amendment.
In summary, I believe the majority errs by reaching a *256moot question concerning an ordinance that has expired. The validity of any future ordinance will depend on its content and limitations. Thus, the majority's decision to reach the merits probably will not forestall future litigation. Reaching the merits as to this ordinance is thus unnecessary and unwise.
As to the merits, I believe the ordinance in question runs afoul of our constitutional prohibition on gifts to private individuals. I therefore dissent.
Dolliver, J., concurs with Rosellini, J.
Note that any limitations on the amount such independent groups spent in the campaign would be an unconstitutional infringement on the First Amendment rights of those groups. See Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980).
The one case which might not appear to fit within this pattern is State ex rel. Madden v. PUD 1, 83 Wn.2d 219, 517 P.2d 585 (1973), cert. denied, 419 U.S. 808 (1974), where the PUD, having condemned land belonging to Madden and paid the agreed price for it, was ordered to reconvey to the seller a perpetual easement, which was provided for by statute. The validity of the statute was not attacked, but the PUD protested that, in the particular instance, it was required to convey the easement gratuitously. However, we held that the PUD had never acquired the right to refuse the easement, and consequently there was no gift. That holding was peculiar to the circumstances of the case and has no application here.