156 Wn.2d 469, In re Recall of Carkeek

[No. 77502-8. En Banc.]

Considered January 12, 2006. Decided February 16, 2006.

In the Matter of the Recall of ROBERT CARKEEK , Commissioner of Drainage Improvement District No. 8 .

[1] Elections - Recall - Petition - Court Review - Scope - Sufficiency of Charges. Courts serve a gateway function in the recall process, limited to protecting the process by ensuring that only legally and factually sufficient charges are referred to the voters.

[2] Elections - Recall - Petition - Court Review - Supreme Court - Standard of Review. The Supreme Court reviews the sufficiency of the charges in a recall petition de novo.

[3] Elections - Recall - Petition - Sufficiency - Statutory Requirements - Technical Violation - Effect. A charge in a recall petition will not be rejected on merely technical grounds.

[4] Elections - Recall - Petition - Sufficiency - Evidence Considered - Supporting Documentation. A court may look to supporting documentation when determining the legal and factual sufficiency of a charge in a recall petition.

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[5] Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Specificity. A charge in a recall petition is not factually sufficient unless the petitioner alleges specific facts that, as a whole, identify to the electors and to the official sought to be recalled the acts or failures to act that, without justification, would constitute a prima facie showing of misfeasance or malfeasance. Voters may draw reasonable inferences from the facts alleged. The fact that reasonable conclusions and inferences have been drawn by the petitioner is not fatal to the sufficiency of the allegations. On the whole, the facts must indicate an intent by the official to violate the law.

[6] Elections - Recall - Petition - Sufficiency - Factual Sufficiency - Violation of Law - Intent - Fear for Personal Safety. A charge in a recall petition does not indicate that the official's alleged wrongful conduct was committed with the intent to violate the law where the facts in the record indicate that the official's conduct was motivated by a sincere, if ultimately nonprevailing, fear for his or her personal safety.

[7] Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Legally Cognizable Justification for Conduct - In General. A charge in a recall petition is not legally sufficient if there is a legally cognizable justification for the official's conduct, even, under some circumstances, when the official actually violated the law.

[8] Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Legally Cognizable Justification for Conduct - Use of Antiharassment Procedure - Proper Motive. A public official who sincerely fears that another person will attack the official has a legally cognizable justification for seeking an antiharassment order against such other person. Without some concrete facts from which one can draw an inference of improper motive, the official's recourse to an antiharassment procedure is not recallable conduct.

Nature of Action: Action to determine the sufficiency of the charges in a petition to recall a drainage improvement district commissioner. One of the charges alleged that the commissioner sought to violate the free speech and petition rights of two neighbors against whom the commissioner had sought an antiharassment order that would have excluded the neighbors from drainage commission district meetings. The commissioner sought the antiharassment order based on his allegation that the two neighbors had attacked him.

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Superior Court: The Superior Court for Snohomish County, No. 05-2-09782-3, James H. Allendoerfer, J., on July 21, 2005, entered a judgment approving the petition after substantially revising the charge to specifically allege an intentional attempt to violate the constitutional rights of the neighbors and the Open Public Meetings Act of 1971 (chapter 42.30 RCW). The court rejected the other charges.

Supreme Court: Holding that the disputed charge is both factually and legally insufficient, the court reverses the judgment.

Daniel R. Johnson (of Adams, Johnson & Duncan, Inc., P.S. ), for appellant.

Leland G. Ripley ; and Janice E. Ellis , Prosecuting Attorney for Snohomish County, and Rebecca Ellen Lawson Wendling , Deputy, for respondent.

¶1 CHAMBERS, J. - Robert Carkeek is a Commissioner of Drainage Improvement District No. 8. Shortly after he unsuccessfully sought an antiharassment order that would have excluded two of his neighbors from drainage commission district meetings, a recall petition was filed against him. The trial judge found all but one of the many charges factually or legally insufficient, rewrote the only surviving charge, and approved that charge "as revised."

¶2 We find the allegation that Commissioner Carkeek committed misfeasance, malfeasance, or violation of the oath of office unsupported by the record. We also find that he had a legally cognizable justification for seeking the antiharassment order. Accordingly, we find that the charge is factually and legally insufficient and reverse.

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BACKGROUND

¶3 In May 2005, Commissioner Carkeek sought an antiharassment order after, he alleges, he was attacked by two of his neighbors. The trial court declined to grant Commissioner Carkeek an antiharassment order on the grounds he had not proved his case and dismissed his petition.

¶4 Shortly afterward, Leland Ripley, his neighbor, filed this recall petition against Commissioner Carkeek. The recall petition alleged, among other charges not before us, that Commissioner Carkeek should be recalled because he

[s]ought through the use of a claim of harassment to obtain a court order directing that Leland G. Ripley and Kathleen J. Ripley be prohibited from attending public Drainage District #8 meetings in violation of Leland G. Ripley's and Kathleen J. Ripley's rights to free speech and to petition the government as guaranteed by the First Amendment of the United States Constitution and Article 1 § 4 and § 5 of the Washington State Constitution, an act of malfeasance and[/]or misfeasance in office and a violation of his oath of office. A copy of his petition and the order dismissing his petition for an anti harassment order are attached.

Clerk's Papers (CP) at 53. After dismissing all the other charges brought by the petitioner, Judge James H. Allendoerfer substantially revised the charge (and not merely the ballot synopsis) to read:

Shall Robert Carkeek, Commissioner of Drainage Improvement District No. 8, be recalled from public office for acts of malfeasance, misfeasance, or violation of oath of office because of the following allegations:

On May 26, 2005, Robert Carkeek sought an anti-harassment order from Snohomish County District Court prohibiting constituents of Drainage Improvement District No. 8, Leland G. Ripley and Kathleen J. Ripley, from attending future public meetings of said District. These acts were an intentional attempt to violate the Ripleys' constitutional rights to free speech and to petition the government, and an intentional

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attempt to violate the Open Public Meetings Act, Chapter 42.30 RCW, and the Anti-Harassment Act, Chapter 10.14 RCW.

CP at 6. Thus, the superior court judge revised the charge to specifically allege an intentional attempt to violate the constitutional rights of the Ripleys and the statutory law of the state of Washington. Commissioner Carkeek sought review.

ANALYSIS

[1]¶5 Courts play a highly limited role in the recall process. RCW 29A.56.140 ; In re Recall of Kast , 144 Wn.2d 807 , 813, 31 P.3d 677 (2001). We are merely gatekeepers, limited to protecting the process by ensuring that only legally and factually sufficient charges are referred to the voters. Id.

[2-4]¶6 Commissioner Carkeek, like most Washington State elected officials, may be recalled by the people on legally and factually sufficient charges of malfeasance, misfeasance, or violation of the oath of office. CONST . art. I, §§ 33-34; RCW 29A.56.110 . We review the superior court's initial sufficiency determination de novo. See RCW 29A.56.140; Kast , 144 Wn.2d at 813 . We do not strike recall petitions on merely technical grounds, and we may consider supporting documentation in our sufficiency determinations. See id.

1. FACTUAL SUFFICIENCY

¶7 We now turn to whether the charge is factually sufficient. We hold that it is not.

[5, 6]¶8 To justify recall, petitioner must allege specific facts that, as a whole, "identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance." Chandler v. Otto , 103 Wn.2d 268 , 274, 693 P.2d 71 (1984). Voters may draw reasonable inferences from the facts alleged; the fact that reasonable conclusions and

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inferences have been drawn by the petitioner is not fatal to the sufficiency of the allegations. Id.

¶9 But while some inferences are permissible, "[o]n the whole, the facts must indicate an intention to violate the law." In re Recall of Feetham , 149 Wn.2d 860 , 865, 72 P.3d 741 (2003) (citing In re Recall of Ackerson, 143 Wn.2d 366 , 371, 20 P.3d 930 (2001)). There is nothing in the original statement of the charge or the supporting documentation provided by the learned counsel bringing the petition that states, or supports a reasonable inference that, Commissioner Carkeek intended to violate the law. Instead, the record indicates that Commissioner Carkeek was motivated by a sincere, if ultimately nonprevailing, fear for his personal safety.

¶10 We find the petition factually insufficient.

2. LEGAL SUFFICIENCY

¶11 Commissioner Carkeek also contends that the charge is legally insufficient because, among other reasons we need not reach, he had a legally cognizable justification for seeking the anti-harassment order: his justified fear. Because this appears to be the first time a public official's use of the antiharassment statute has been a basis for a recall petition, we will briefly address this argument.

[7]¶12 A "legally cognizable justification for an official's conduct renders a recall charge insufficient," even, under some circumstances, when the official actually violated the law. Ackerson, 143 Wn.2d at 371 (citing In re Recall of Wade, 115 Wn.2d 544 , 799 P.2d 1179 (1990)); Greco v. Parsons, 105 Wn.2d 669 , 717 P.2d 1368 (1986). So, for example, in Greco , this court dismissed a recall attempt against the Pierce County Auditor for failure to redraw the voter precincts within the 32 days required by the Pierce County Council's ordinance. Greco , 105 Wn.2d at 670 -71. Since it was undisputed that the Pierce County Council ordered the auditor to do an impossible task, we found there was a "legally cognizable justification" (in that case, an impossibility) for

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his failure to comply with the law. Greco , 105 Wn.2d at 672 . We found implicit in the requirement that the charge be legally sufficient and that there be no "legally cognizable justification" for the official's actions. Greco , 105 Wn.2d at 673 .

[8]¶13 In this case, Commissioner Carkeek had legally cognizable justification for his actions - he feared his neighbors would attack him. This is a proper basis to seek an antiharassment order. No one has questioned the sincerity of the belief, or come forth with facts tending to show that Commissioner Carkeek had an impermissible motive. Without some concrete facts from which we can draw an inference of such improper motive, a public official's recourse to an antiharassment procedure is not a recallable offense.

¶14 Therefore, we hold that this recall petition is both factually and legally insufficient, and reverse.

ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur. No. 76164-7. En Banc.]

Argued October 25, 2005. Decided February 23, 2006.

THE STATE OF WASHINGTON , Respondent , v. RICHARD L. COOPER , Petitioner .

[1] Statutes - Construction - Legislative Intent - In General. Statutory interpretation requires a court to give effect to the legislature's intent and purpose in passing a law.

[2] Statutes - Construction - Legislative Intent - Statutory Language - Unambiguous Language. When the plain language of a statute is unambiguous - i.e., when the statutory language admits of only one meaning - the legislative intent of the statute is apparent and there is no need to construe the statute.

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[3] Statutes - Construction - Omitted Language - In General. Where the legislature omits language from a statute, intentionally or inadvertently, a court will not read into the statute the language that it believes was omitted.

[4] Statutes - Construction - Meaning of Words - Nontechnical Term - Resort to Dictionary. A court may discern the plain meaning of a nontechnical statutory term from its dictionary definition.

[5] Controlled Substances - Methamphetamine - Endangerment of Dependent Child - "Dependent" - What Constitutes. For purposes of RCW 9A.42.100 , the child endangerment statute, which prohibits a person from knowingly or intentionally exposing a dependent child to methamphetamine or its ingredients, a "dependent child" is one who relies on any other person for the basic necessities of life.

[6] Controlled Substances - Methamphetamine - Endangerment of Dependent Child - Statutory Provisions - Scope - All Persons. RCW 9A.42.100 , the child endangerment statute, prohibits all persons - not just parents, caregivers, and custodians - from knowingly or intentionally exposing a dependent child to methamphetamine or its ingredients.

SANDERS , J., dissents by separate opinion.

Nature of Action: Prosecution for two counts of endangering a dependent child with a controlled substance and multiple counts of unlawful possession, manufacture, and delivery of a controlled substance.

Superior Court: The Superior Court for Columbia County, No. 03-1-00002-2, William D. Acey, J., on May 22, 2003, entered a judgment on a verdict of guilty.

Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 123 Wn. App. 1019 (2004).Supreme Court: Holding that the child endangerment statute applies to any person - not just a parent, caregiver, or custodian - who knowingly or intentionally exposes a child to methamphetamine or its ingredients, the court affirms the convictions of endangering a dependent child with a controlled substance but remands the case for resentencing consistent with the State's concession that the defendant received ineffective assistance of counsel by his

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trial attorney's failure to object to the untimely introduction of school zone enhancement evidence.

Dennis W. Morgan , for petitioner.

Colleen G. Fenn , Prosecuting Attorney, for respondent.

¶1 BRIDGE, J. - In addition to various counts involving manufacture, possession, and delivery, a jury found Richard Cooper guilty of endangering his girl friend's children by operating a methamphetamine manufacturing operation in the children's residence. RCW 9A.42.100 , the child endangerment statute, makes it a crime for a person to knowingly or intentionally expose a dependent child to methamphetamine. Cooper argues that the term "person" in RCW 9A.42.100 encompasses only a child's parent, custodian, or caregiver, not him. We disagree. We affirm the Court of Appeals and hold that by its plain language, RCW 9A.42.100 applies to any person who knowingly or intentionally exposes a child to methamphetamine or its ingredients.«1»

I

Facts and Procedural History

¶2 On January 7, 2003 Columbia County sheriffs obtained a warrant to apprehend Richard Cooper, a community custody escapee believed to be at the home of his girl friend, Mylynda Daudt. When the officers arrived at

«1»For the first time, Cooper also argues that he received ineffective assistance at trial because his attorney failed to object to the untimely introduction of school zone enhancement evidence. The State concedes that Cooper did receive ineffective assistance of counsel. Thus, we remand his case for resentencing consistent with that concession.

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Daudt's residence, they found Cooper, Daudt, and Daudt's two children, P.D. and E.D., age 2 and 4, respectively. While inside the residence securing Cooper, the officers observed in plain view what appeared to be a methamphetamine manufacturing operation. The officers quickly removed Cooper, Daudt, and the children from the home and subsequently obtained a search warrant for Daudt's residence based on their observations of the apparent methamphetamine laboratory. Upon returning to the home, a search verified the presence of methamphetamine manufacturing materials in the small apartment, including several chemicals and other hazardous substances that were accessible to the children.

¶3 Cooper was charged with several counts of methamphetamine possession, manufacture, and delivery, and two counts of endangering a child with the controlled substance methamphetamine. At trial, a sheriff's deputy testified that E.D. and P.D. were exposed continuously to hazardous material involved in Cooper's methamphetamine manufacture. In addition, evidence was presented that although Cooper's permanent residence was with his grandmother, he was often at Daudt's home. Cooper denied any "custodial relationship" to Daudt's children and asserted that proof of such a relationship was required before he could be convicted of child endangerment. See Report of Proceedings at 442-44. The jury found Cooper guilty on all counts.

¶4 Cooper appealed, claiming that his conviction under the child endangerment statute was error because neither of Daudt's children was dependent on him, so he could not be accountable for their endangerment. In an unpublished opinion, Division Three of the Court of Appeals affirmed his conviction, holding that the legislature had purposefully omitted parent or caregiver language in the child endangerment statute in favor of "person" and "intended to broaden the class of persons who could be charged under RCW 9A.42.100 to all persons who knowingly or intentionally expose a child to methamphetamine or its ingredients."

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State v. Cooper , noted at 123 Wn. App. 1019, 2004 Wn. App. LEXIS 2115, at * 2, 12-14. Cooper petitioned this court for review, which we granted. State v. Cooper , 154 Wn.2d 1002 (2005).

II

Analysis

¶5 The child endangerment statute provides:

A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, and salts of isomers, that are being used in the manufacture of methamphetamine.

[1, 2]RCW 9A.42.100 . Statutory interpretation requires courts to give effect to the legislature's intent and purpose in passing a law. State v. J.P. , 149 Wn.2d 444 , 450, 69 P.3d 318 (2003). "When the plain language [of a statute] is unambiguous - that is, when the statutory language admits of only one meaning - the legislative intent is apparent, and we will not construe the statute otherwise." Id .

[3-6]¶6 The child endangerment statute is codified in a chapter criminalizing mistreatment of children and dependent adults. The intent section of chapter 9A.42 RCW focuses on parents, custodians, or caregivers. RCW 9A.42.005. Statutory language in nearly every provision of chapter 9A.42 RCW defines "person" exclusively as parents, physical custodians, or caregivers. See RCW 9A.42.020 -.037, .060-.080, .110. Therefore, Cooper argues that the definition of "person" in the child endangerment statute should be restricted to parents, custodians, or caregivers. Cooper ignores the obvious - RCW 9A.42.100 unequivocally states that a "person" is guilty of the crime of child endangerment without limiting the term "person" to a parent, caregiver, or physical custodian.

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¶7 These potential incongruities within chapter 9A.42 RCW do not render the child endangerment statute ambiguous. On the contrary, they notably underscore the plain language of the statute. "Where the Legislature omits language from a statute, intentionally or inadvertently, this court will not read into the statute the language that it believes was omitted." State v. Moses , 145 Wn.2d 370 , 374, 37 P.3d 1216 (2002). Thus, the Court of Appeals properly concluded that the legislature unambiguously intended the child endangerment statute to apply to persons - not just parents, caregivers, or custodians - who knowingly or intentionally expose a child to methamphetamine and its components.

¶8 Cooper also asserts that because the statute includes the term "dependent child," the child at issue must have a dependent relationship with the person charged, thereby limiting the statute's applicability to parents, custodians, or caregivers. "Child" is a person under 18 years old. RCW 9A.42.010 (3). The term "dependent child" is not defined by the child endangerment statute nor chapter 9A.42 RCW, but we may discern the plain meaning of nontechnical statutory terms from their dictionary definitions. State v. McDougal , 120 Wn.2d 334 , 350, 841 P.2d 1232 (1992). "Dependent" means "unable to exist, sustain oneself, or act suitably or normally without the assistance or direction of another or others." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 604 (2002). "Dependent" is also defined as "lacking the necessary means of support and receiving aid from others," and "depend" is defined as "to trust, rely, or place belief or hope [on] often without alternate recourse." Id .

¶9 Nothing in the plain language of the child endangerment statute or the dictionary definitions of "dependent" requires that the child must have a dependent relationship with the person charged under the statute beyond what is necessary to establish that the person knowingly or intentionally exposed the child to methamphetamine or its ingredients. In the statute, "dependent" modifies "child" and says nothing about the existence of a relationship

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between the person and the child at issue. Thus, the plain meaning of dependent child is one who relies on any other - not necessarily the person charged - for basic necessities of life.«2»

¶10 We therefore hold that the term "person" as used in the child endangerment statute prohibits all persons from knowingly or intentionally exposing dependent children to the controlled substances listed in the statute. Here, Cooper purposely manufactured methamphetamine in the home of P.D. and E.D., who are known to him and who are dependent children by virtue of their tender years. He thus knowingly and intentionally exposed them to the drug and its ingredients.

III

Conclusion

¶11 We affirm the Court of Appeals' application of the child endangerment statute to Cooper but remand for resentencing consistent with the State's concession that the school zone enhancements should not have been imposed.

ALEXANDER, C.J., and C. JOHNSON, MADSEN, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur.

¶12 SANDERS, J. (dissenting) - The majority concludes RCW 9A.42.100 unambiguously makes it a crime for a person to expose a third party's dependent to methamphetamine manufacture. I disagree. The plain language of RCW 9A.42.100 is at least ambiguous and, more plausibly, applies only when the custodian of a dependent person exposes that person to methamphetamine manufacture.

«2»Because the statute is plain on its face, an in pari materia argument is irrelevant, as is any reliance on legislative history. We do not resort to these tools of statutory construction where the meaning of a statute is clear. See State v. Hennings , 129 Wn.2d 512 , 522, 919 P.2d 580 (1996).

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¶14 Richard Cooper was convicted under RCW 9A.42.100 of endangering his girl friend's two children by exposing them to methamphetamine manufacture. The children are not his dependents, and he denies any custodial relationship to them. Cooper contends his conviction is invalid because RCW 9A.42.100 applies only when the custodian of a dependent person exposes his dependent to methamphetamine manufacture.

I. RCW 9A.42.100 IS AMBIGUOUS

¶14 A statute subject to more than one reasonable interpretation is ambiguous. See , e.g. , State v. Roggenkamp , 153 Wn.2d 614 , 621, 106 P.3d 196 (2005). The majority insists the plain language of RCW 9A.42.100 unambiguously "applies to any person who knowingly or intentionally exposes a child to methamphetamine or its ingredients." Majority at 477. I find its conclusion tendentious and implausible.

¶15 To the contrary, a casual reader of RCW 9A.42.100 would assume it applies only to the custodian of a dependent person. The statute provides, "A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, or salts of isomers, that are being used in the manufacture of methamphetamine." RCW 9A.42.100 . One naturally assumes a law criminalizing the endangerment of dependents addresses their custodians.

¶16 And reading the statute in context only confirms that assumption. "The 'plain meaning' of a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Jacobs , 154 Wn.2d 596 , 600, 115 P.3d 281 (2005). Every other statute in chapter 9A.42 RCW specifically addresses only custodians of dependent persons. And when statutes " 'relate to the

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same thing or class, they are in pari materia and must be harmonized if possible.' " Monroe v. Soliz , 132 Wn.2d 414 , 425, 939 P.2d 205 (1997) (quoting King County v. Taxpayers of King County , 104 Wn.2d 1 , 9, 700 P.2d 1143 (1985)). The express purpose of chapter 9A.42 RCW is to protect dependent persons from their custodians. See RCW 9A.42.005 (finding "there is a significant need to protect children and dependent persons, including frail elder and vulnerable adults, from abuse and neglect by their parents, by persons entrusted with their physical custody, or by persons employed to provide them with the basic necessities of life"). Why treat RCW 9A.42.100 as the odd man out?

¶17 The majority's oh-so-rigorous reading renders the term "dependent child" quite redundant. And the dutiful exegete deplores redundancy. "We are duty bound to give meaning to every word the legislature includes in a statute, and we must avoid rendering any language superfluous." Berrocal v. Fernandez , 155 Wn.2d 585 , 599-600, 121 P.3d 82 (2005). Most probably the peculiar structure of RCW 9A.42.100 reflects nothing more than careless drafting, a suspicion buttressed by its late and lonely addition to chapter 9A.42 RCW.«3»Notably, elsewhere in chapter 9A.42 RCW the legislature refers to "children and other dependent persons," see , e.g. , RCW 9A.42.090 , implying it intended "dependent child" to capture a relationship, and not merely a status. So I am compelled to conclude RCW 9A.42.100 refers to dependents because it means to protect dependents from their custodians, in concert with its brethren.

¶18 In any case, it seems transparently clear that RCW 9A.42.100 is at least ambiguous. And ambiguous statutes demand careful construction.

«3»RCW 9A.42.100 was enacted in 2002, long after the rest of chapter 9A.42 RCW.

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II. UNDER THE RULE OF LENITY, RCW 9A.42.100 APPLIES ONLY TO THE CUSTODIAN OF A DEPENDENT PERSON

¶19 Thankfully, certain canons of statutory construction spring to our assistance. And when we find ourselves compelled to construe a criminal statute, first among those canons is the rule of lenity. Its command is quite simple: we must strictly construe ambiguous statutes in favor of the defendant. See State v. Jacobs , 154 Wn.2d 596 , 603, 115 P.3d 281 (2005); United States v. Enmons , 410 U.S. 396, 411, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973) (criminal statutes "must be strictly construed, and any ambiguity must be resolved in favor of lenity").

¶20 Construed in Cooper's favor, RCW 9A.42.100 does not apply. "The rule of lenity rests on the notion that people are entitled to know in advance whether an act they contemplate taking violates a particular criminal statute, even if the act is obviously condemnable and even if it violates other criminal statutes." Dixson v. United States , 465 U.S. 482, 511, 104 S. Ct. 1172, 79 L. Ed. 2d 458 (1984) (O'Connor, J., dissenting). Cooper exposed dependent children to methamphetamine manufacture, but not his own dependent children. And under the rule of lenity, RCW 9A.42.100 applies only to the custodian of an endangered dependent.

¶21 Consequently I dissent. Nos. 76480-8; 76541-3; 76500-6; 76479-4. En Banc.]

Considered March 9, 2006. Decided March 9, 2006.

In the Matter of the Election Contest Filed by ARTHUR CODAY , JR ., Petitioner . In the Matter of the Election Contest Filed by MICHAEL J. GOODALL , Petitioner . In the Matter of the Election Contest Filed by SUZANNE D. KARR , Petitioner . In the Matter of the Election Contest Filed by DANIEL P. STEVENS , Petitioner .

[1] Elections - Contest - Right of Action - Statutory Bases. Under the election contest statute, chapter 29A.68 RCW, an election may be contested based only on a statutorily enumerated cause.

[2] Elections - Contest - Causes - Wrongful Act or Neglect of Duty by Election Official - Separate Statutory Cause - Necessity. When it is alleged that an election official has engaged in a wrongful act or has neglected a duty, the results of the election may be challenged under RCW 29A.68.011 even if none of the specific causes enumerated in RCW 29A.68.020 are implicated.

[3] Elections - Contest - Causes - "Sufficient Certainty" - Necessity. Under RCW 29A.68.030 , an election contest that fails to allege the particular causes for the contest with sufficient certainty may be dismissed.

[4] Elections - Contest - Causes - "Sufficient Certainty" - Basis for Relief - Necessity. A cause for contesting an election is not alleged with "sufficient certainty" within the meaning of RCW 29A.68.030 if it appears beyond doubt that the contestant can prove no set of facts consistent with the complaint that would entitle the contestant to relief.

[5] Elections - Contest - Causes - "Purchase" of Recount - Statutory Procedure. A claim that an election was not "free" as required by Const. art. I, § 19 because one of the candidates was allowed to "purchase the right to a hand recount" is not cognizable under the election contest statute, chapter 29A.68 RCW, inasmuch as the procedure for commencing a recount and the requirement that a cash deposit be made to cover the costs of a recount should the result of the election not be changed are established by statute, chapter 29A.64 RCW. A party requesting an election recount under chapter 29A.64 RCW does not purchase the right to a recount but makes a deposit, which is refunded if the result of the election is reversed as a result of the recount.

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[6] Elections - Contest - Causes - "Equal" Right To Challenge Election - Right To Seek Recount. A claim that an election was not "equal" as required by Const. art. I, § 19 because not all citizens had an equal, unqualified right to contest the election is not cognizable under the election contest statute, chapter 29A.68 RCW, inasmuch as the election recount statute, chapter 29A.64 RCW, provides that any elector, along with four other electors, has the right to request a recount.

[7] Elections - Contest - Causes - Different Sets of Ballots Counted - Judicially Authorized Practice. A claim that an election recount was conducted in violation of the law because different sets of ballots were counted in each recount as in Washington State Republican Party v. King County , 153 Wn.2d 220 (2005), is not cognizable under the election contest statute, chapter 29A.68 RCW.

[8] Elections - Contest - Causes - Statistical Flaw - Statutorily Authorized Method. A claim that a ballot recount procedure is statistically flawed is not cognizable under the election contest statute, chapter 29A.68 RCW, where the recount was conducted pursuant to a statutorily authorized methodology. The election recount statute, chapter 29A.64 RCW, neither provides for nor allows the statistical averaging of recount results. Nothing about the statutory recount methodology violates the Const. art. I, § 19 requirement of "free and equal" elections.

[9] Elections - Contest - Causes - Ballot Enhancement - Authorized Procedure. A claim that the practice of ballot enhancement prior to an election recount violates the Const. art. I, § 19 requirement of an "equal" election is not cognizable under the election contest statute, chapter 29A.68 RCW, inasmuch as the practice of ballot enhancement does not actually "enhance" a ballot but, instead, allows a vote recorded on a ballot to be made readable by electronic voting equipment consistently with the voter's intent. The practice and procedure of ballot enhancement is authorized by the Secretary of State under WAC 434-261-005 , -070, -080, and -085 and does not violate the constitutional requirement of an equal election.

[10] Elections - Contest - Causes - Bribe or Reward for Vote - Avoidance of Large Judgment Against Government. A claim that a candidate for public office gave bribes or rewards to voters in exchange for their votes is not cognizable under the election contest statute, chapter 29A.68 RCW, where the basis for the claim is that the candidate, in an incumbent position, took actions to avoid a large judgment against the government. Actions taken to avoid large judgments against the government do not constitute a "bribe or reward to a voter" given "for the purpose of procuring the election" within the meaning of RCW 29A.68.020 (4).

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[11] Elections - Contest - Causes - Statistical Flaw - Delta Value of Votes. A claim that the results of an election recount are invalid because "the delta value of votes given to both candidates is exponentially within the tally's margin of error" is not cognizable under the election contest statute, chapter 29A.68 RCW, where it does not allege any wrongful act or neglect of duty on the part of any election official under RCW 29A.68.011 and does not fall within any of the causes specified in RCW 29A.68.020 .

[12] Elections - Contest - Causes - Misconduct by Election Officials - Illegal Votes Counted - Specificity. Claims of misconduct on the part of election officials and that illegal votes were cast and counted in favor of a candidate are cognizable under the election contest statute, chapter 29A.68 RCW, where the allegations, if true, would entitle the contestant to relief.

[13] Evidence - Judicial Notice - Court Record - Res Judicata Purposes. Although a court generally will not take judicial notice of the record of a different case in another court, a court may take judicial notice of a prior decision adjudicating identical issues if the state of the pleadings is such that the plea of res judicata cannot be interposed and there is no opportunity to raise the point on the introduction of evidence.

[14] Elections - Contest - Right of Action - Res Judicata. An action raising cognizable claims under the election contest statute, chapter 29A.68 RCW, is subject to dismissal on the grounds of res judicata if the action is identical to a previously adjudicated action in terms of subject matter and cause of action, and the plaintiff is acting in the same legal capacity and has the same legal interest as the plaintiffs in the prior action. Where nominally different parties pursue causes of action as voters on behalf of the body politic in general, such parties have sufficiently identical interests to satisfy the "identity of parties" element of res judicata because they possess the same legal interests as all citizens of the state.

SANDERS and J.M. JOHNSON , JJ., dissent by separate opinion.

Nature of Action: Election contests challenging the results of the November 2, 2004 gubernatorial election.

Supreme Court: Holding that three of the actions failed to state a cognizable claim under the election contest statute and that the fourth action is barred by res judicata, the court dismisses all four actions.

Arthur Coday, Jr. , Michael J. Goodall , Suzanne D. Karr , and Daniel P. Stevens , pro se.

Thomas F. Ahearne (of Foster Pepper, P.L.L.C. ); and Robert M. McKenna , Attorney General, Maureen A. Hart ,

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Senior Assistant, and Jeffrey T. Even , Assistant, for the Secretary of State.

Kevin J. Hamilton , David J. Burman , Kathleen M. O'Sullivan , and William C. Rava (of Perkins Coie, L.L.P. ), for the Washington State Democratic Central Committee.

¶1 ALEXANDER, C.J. - Four election contests challenging the results of the 2004 governor's election were filed in this court by individual electors. These contestants rely on various grounds to challenge the results of the election. We conclude that three of these contests, those filed by Arthur Coday, Jr., Michael J. Goodall, and Daniel P. Stevens, fail to state a cognizable claim under the election contest statute. The fourth of these contests, that filed by Suzanne D. Karr, is identical to Borders v. King County , No. 05-2-00027-3 (Chelan County Super. Ct. June 24, 2005), which was decided in Chelan County Superior Court and is, therefore, barred under the doctrine of res judicata. We, therefore, dismiss all four contests.

I

¶2 The events surrounding the 2004 race for governor in Washington State are by now well known. Nevertheless, a brief summary of these events is appropriate. The general election was held November 2, 2004. Vying for the governor's office were Democrat Christine Gregoire, Republican Dino Rossi, and Libertarian Ruth Bennett.

¶3 The results of the initial count of ballots, certified November 17, indicated that Rossi had received 261 more votes than Gregoire. See Court's Oral Decision, Borders v. King County , No. 05-2-00027-3 ( Borders Oral Decision) at 4. Due to the narrow margin of votes separating the candi

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dates, a mandatory recount was automatically triggered. A machine recount was ordered by the secretary of state on November 17 and commenced shortly thereafter. The results of the machine recount were reported November 30 and indicated that Rossi had received 42 more votes than Gregoire. On that date the secretary of state certified that result.

¶4 On December 3, a representative of the Democratic Party applied for a statewide manual recount, id . at 5, and, as required by statute,«1»deposited $730,000 to cover the costs thereof should the outcome of the election not change as a result of the recount. On December 6, the secretary of state ordered a statewide manual recount. The manual recount began on December 8.

¶5 Also on December 3, the Democratic Party filed an original action in this court. The Democrats sought to have thousands of ballots, which were rejected in the initial count because of certain defects, "recanvassed" during the hand recount. We rejected the Democrats' request to order the recanvass of previously rejected ballots, reasoning that Washington law requires a recount of only those ballots actually tabulated in the initial count. See McDonald v. Reed , 153 Wn.2d 201 , 103 P.3d 722 (2004).

¶6 Meanwhile, 573 previously uncounted ballots were discovered in King County by election workers (eventually, another 162 such ballots were discovered, for a total of 735). The King County Canvassing Board moved to count these ballots. However, before they could be counted, the Republican Party filed suit in Pierce County Superior Court, seeking to block King County elections officials from including the newly discovered ballots in the hand recount. A Pierce County Superior Court judge sided with the Republicans and ordered King County elections officials to omit the newly discovered ballots from the hand recount. The Democratic Central Committee, which was allowed to intervene in the Pierce County suit, appealed that order to

«1» See former RCW 29A.64.030 (2003).

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this court. We held that a county canvassing board has discretion to recanvass ballots in certain circumstances and thus reversed the superior court's order and allowed the newly discovered ballots to be canvassed and included in the total tally of votes. See Wash. State Republican Party v. King County , 153 Wn.2d 220 , 224, 103 P.3d 725 (2004).

¶7 The hand recount was completed on December 23. With the newly discovered ballots included in the final tally, Gregoire received 1,373,361 votes, Rossi received 1,373,232 votes, and Bennett received 63,456 votes, giving Gregoire a 129-vote victory over Rossi. The secretary of state transmitted the election results to the legislature on December 30. The legislature certified Gregoire as the winner on January 11, 2005, and she was sworn in as governor on January 12.

¶8 Following the certification of Gregoire as the winner of the election, seven electors, some of whom represented the Republican Party and the Rossi campaign, filed an election contest in Chelan County Superior Court. In it, the contestants claimed that hundreds of "illegal votes" - including votes cast by felons and votes cast on behalf of deceased electors - made the difference in the election. Borders Oral Decision at 6. The contestants further alleged that "errors, omissions, mistakes, neglect and other wrongful acts" by county election officials affected the outcome of the election and necessitated its nullification. Id . The Democratic Central Committee intervened and defended the result of the election. After months of pretrial proceedings, including voluminous discovery, a two-week trial was held in Chelan County Superior Court in which dozens of fact witnesses, several expert witnesses, and hundreds of exhibits were presented. On June 6, the Chelan County Superior Court judge presiding over the case dismissed the contest. After weighing the evidence, he concluded that the contestants had failed to prove that grounds for nullification of the election existed. See generally Borders Oral Decision. Specifically, he ruled that, while the contestants had proved that errors and omissions by county election officials had occurred and that illegal votes were cast, they

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had not proved that the outcome of the governor's election was changed as a result.

¶9 On June 7, Rossi and the Republicans decided not to appeal that ruling. Several weeks after the Borders case was dismissed, the $730,000 deposited by the Democratic Party when it requested a second recount was returned to the party together with two percent interest on the $730,000.

¶10 The election contests of Stevens, Coday, Karr, and Goodall were filed directly in this court on January 3, 5, 10, and 19, respectively. The secretary of state and the Democratic Central Committee, though not named parties in these contests, requested the opportunity to comment on how they should be addressed. We granted these requests and received comments from both parties on July 12. In their comments, the secretary of state and the Democratic Central Committee both argued that these contests either failed to state a cognizable claim under the election contest statute or were identical to the Borders claim and, therefore, barred by res judicata. Both the secretary of state and the Democratic Central Committee urged this court to dismiss all four contests.

II. Summary of Contests

A. Coday Contest, No. 76480-8

¶11 Arthur Coday, Jr., a registered voter in King County, argues that the state violated the Washington Constitution in conducting the 2004 gubernatorial election. Specifically, he contends that article I, section 19 of the Washington Constitution was violated. Article I, section 19, entitled "Freedom of Elections" provides that "[a]ll Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." He claims that the State ran afoul of this provision in five particular ways.

¶12 Coday first argues that article I, section 19 was violated because Gregoire and the Democratic Party were

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allowed to "purchase the right to a hand recount." Coday Br. at 5 ("the Democratic . . . Party made payment of money to the State in order to purchase the right to recount a State-certified election"). The election was literally not "free" as required by article I, section 19, Coday argues, because the recount, and therefore the election, could be "bought or sold." Id .

¶13 Coday next argues that the election was not "equal" because all voters did not have the "unconditional right to call for a recount." Id . at 7. He asserts that the opportunity to call for a recount must be unconditional, i.e., unlimited. Because effectively only one party may call for a recount under Washington's recount statute, the opportunity for other parties to seek a recount is necessarily limited. Furthermore, Coday argues, the person who actually does get to request a recount is afforded a "special favor." Id .

¶14 Coday's third argument is that the State improperly counted additional ballots not tabulated in the initial count. He observes that "in the three counts of ballots in the election process for the Governor, there has been one count each of three different sets of ballots, and not a single 'recount' of the original set of approved ballots." Id . According to Coday, the failure to count only one set of ballots "violates the principle of 'equal [sic].' " Id . at 8.

¶15 Next, Coday claims that "Washington's recount laws are statistically flawed." Id . at 10. He argues that the proper statistical method for determining the winner of an election during a recount is to average the results of each of the counts. Because Washington's recount method considers only the results of the final count, it is contrary to "[m]odern statistical theory." Id .

¶16 Coday's final argument is focused on the practice of enhancing ballots. He asserts that the practice of enhancing ballots is inherently illegal, claiming that "[a]n 'enhanced' ballot is merely a pseudonym for a ballot tainted by tampering." Id . at 11.

¶17 Coday asks this court to require the State to return the money provided to it by the Democratic Party in

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advance of the recount. He also asks us to "[s]trike down any law that provides private parties with the unconditional right to call for a recount," require the use of a single set of ballots for each of the recounts, require the State to average the results of each of the recounts, reject all enhanced ballots, and inaugurate Dino Rossi as governor of Washington. Id . at 12.

B. Goodall Contest, No. 76541-3

¶18 Michael J. Goodall, a registered voter in King County, filed a "Citizens Complaint" contesting the election of Christine Gregoire as governor. He alleges that Gregoire is unfit to be governor because she impermissibly offered Washington voters a reward in exchange for their votes.

¶19 Goodall's son, C.N., has severe autism and was placed in foster care because neither Goodall nor C.N.'s mother could properly care for him. Goodall argues that while in foster care, his son was abused and maltreated. He contends that then-Attorney General Gregoire was aware of this abuse but conspired with other individuals in the Office of the Attorney General and with other state agencies and the King County Superior Court to cover up this abuse in order to shield the State from a large judgment. Goodall maintains that Gregoire was motivated to prevent a large judgment against the State because it would be politically embarrassing for the Office of the Attorney General and would hurt her chances of being elected governor.

¶20 Goodall contends this alleged "cover-up" falls within RCW 29A.68.020 (4) and is a basis for invalidating the results of the election. RCW 29A.68.020 (4) provides that any registered voter may contest the right of

any person declared elected to an office to be issued a certificate of election . . .

. . . .

(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so.

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¶21 Goodall asks this court to "not allow Christine Gregoire to become Governor" because her alleged deliberate acts of "covering up [acts of child] abuse and maltreatment" by state foster homes violated RCW 29A.68.020 (4). Citizens Complaint at 7.

C. Karr Contest, No. 76500-6

¶22 Suzanne D. Karr, a registered voter in Snohomish County, filed an "Affidavit of Error or Omission" in which she contests the results of the 2004 gubernatorial election. Karr charges that the election is invalid because of misconduct on the part of King County election officials and illegal votes counted in the governor's race.

¶23 With respect to her claim of misconduct on the part of election officials, Karr claims that (1) a number of provisional ballots in King County were counted without having first been deemed valid; (2) election officials impermissibly released to the Democratic and Republican parties names of provisional voters whose signatures on file did not match their signatures on their ballots and allowed the parties to submit signature verification affidavits on behalf of voters; and (3) election officials failed to obtain or to adequately verify voter signatures on some ballots, resulting in a greater number of votes being cast than voters appearing on the list of electors having voted.

¶24 Karr claims that a number of illegal votes were counted because some voters cast more than one vote or were disqualified under article VI, section 3 of the Washington Constitution,«2»because they were felons or had been declared incompetent. Karr contests the right of Gregoire to be elected but asks for no particular relief.

D. Stevens Contest, No. 76479-4

¶25 Daniel P. Stevens, a registered voter in King County, claims that the results of the election are invalid because

«2»Article VI, section 3 provides: "All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise."

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"[t]he delta value of votes given to both candidates is exponentially within the tally's margin of error, to the point that error must be assumed as a certainty, as given by three separate counts resulting in three different outcomes." Stevens' Br. at 1.

¶26 Stevens requests that this court "[n]ullify the election" and "[o]rder a revote." Id .

III

[1]¶27 Under the election contest statute, chapter 29A.68 RCW, an election may be contested based only on a limited number of causes, which are enumerated therein. See RCW 29A.68.011 , .020; Foulkes v. Hays , 85 Wn.2d 629 , 632-35, 537 P.2d 777 (1975). RCW 29A.68.020 provides that the causes on which an election may be contested are:

(1) [Because of] misconduct on the part of any member of any precinct election board involved therein;

(2) Because the person whose right is being contested was not at the time the person was declared elected eligible to that office;

(3) Because the person whose right is being contested was previous to the election convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person's civil rights restored after the conviction;

(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so;

(5) On account of illegal votes.

¶28 An election may be challenged under causes enumerated in RCW 29A.68.011 as well. See Foulkes , 85 Wn.2d at 632 -35. RCW 29A.68.011 provides in pertinent part:

Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the

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wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:

. . . .

(4) A wrongful act . . . has been performed or is about to be performed by any election officer; or

(5) Any neglect of duty on the part of an election officer . . . has occurred or is about to occur; or

(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election.

[2]¶29 In Foulkes , this court agreed that a challenger could maintain a challenge to an election under the equivalent to current RCW 29A.68.011 even if grounds to contest the election under the equivalent to current RCW 29A.68.020 did not exist. Foulkes , 85 Wn.2d at 632 -35. Thus, where a challenger alleges that an election official has engaged in a wrongful act or has neglected a duty, he or she may challenge the results of the election under RCW 29A.68.011, even if none of the specific causes enumerated in RCW 29A.68.020 are implicated.

[3]¶30 RCW 29A.68.030 provides that "no statement of contest may be dismissed for want of form if the particular causes of contest are alleged with sufficient certainty ." (Emphasis added.) Thus, an election contest which fails to allege "the particular causes of contest . . . with sufficient certainty" may be dismissed. RCW 29A.68.030 .

[4]¶31 "Sufficient certainty" is not defined in the statute, nor have we had occasion to define that particular term. However, in previous election contest cases, this court has utilized generally applicable, liberal pleading rules. See Dumas v. Gagner , 137 Wn.2d 268 , 282, 971 P.2d 17 (1999). In Dumas , a case involving a contested port commissioner election, the contestant failed to cite specific statutory election contest provisions in his election contest petition.Nevertheless, we allowed the contest to proceed. In so doing, we observed that

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[a]lthough Respondent's petition did not cite specific subsections of the [election contest] statute, sufficient facts and law were stated concerning the nature of the claim to bring the petition under the statute . Although the petition is not a model of pleading, it is nevertheless adequate so long as it is sufficient to satisfy necessary legal requirements .

Id . (emphasis added).

¶32 Although we did not indicate what the "necessary legal requirements" are in an election contest petition or affidavit, we referred to the standard articulated in Lightner v. Balow , 59 Wn.2d 856 , 370 P.2d 982 (1962). In Lightner , this court recognized that " ' "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ' " Lightner , 59 Wn.2d at 858 (quoting Sherwood v. Moxee Sch. Dist. No. 90 , 58 Wn.2d 351 , 353, 363 P.2d 138 (1961) (quoting Conley v. Gibson , 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957))).

¶33 This standard is similar to that applicable to a motion to dismiss pursuant to Civil Rule (CR) 12(b)(6). Dismissal of a claim pursuant to CR 12(b)(6) is appropriate "only if 'it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.' " Orwick v. City of Seattle , 103 Wn.2d 249 , 254, 692 P.2d 793 (1984) (quoting Corrigal v. Ball & Dodd Funeral Home, Inc. , 89 Wn.2d 959 , 961, 577 P.2d 580 (1978)).

¶34 Each of these four contests was timely filed. Furthermore, while none of the contests is a "model of pleading," Dumas , 137 Wn.2d at 282 , we will not dismiss election contests "for want of form." RCW 29A.68.030 . Thus, we must determine whether each of these contests states a claim under the election contest statute with "sufficient certainty." We will consider each contest seriatim.

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A. Coday Contest

[5, 6]¶35 Coday's first two claims, that the election was not "free" as required by the constitution because Gregoire was allowed to "purchase the right to a hand recount" and that the election was not "equal" as required by the constitution because not all citizens had an equal, unqualified right to contest the election, are not cognizable under the election contest statute. The procedure for commencing a recount and the requirement that a deposit be made to cover the costs of a recount should the result of the election not be changed are established by statute. See RCW 29A.64.011, .030, .081. A party requesting a recount does not purchase the right to a recount, but makes a deposit, which is refunded if the result of the election is reversed as a result of the recount. See RCW 29A.64.030 . Furthermore, any elector, along with four other electors, has the right to request a recount. RCW 29A.64.011 . Neither of the provisions Coday challenges violates the "free and equal" requirement of article I, section 19 of the constitution.

[7, 8]¶36 The third claim, that the State violated its own laws by counting different sets of ballots in each recount, is meritless in light of our decision in Washington State Republican Party , which addressed this very issue and approved the practice of counting certain ballots in a recount that had not been previously counted, under certain circumstances. See Wash. State Republican Party , 153 Wn.2d at 224 . Coday's fourth issue, that the State's ballot counting procedures were statistically flawed, is not addressable under any provision of the election contest statute. The recounts were properly conducted pursuant to the methodology established in statute. The statute governing recounts, chapter 29A.64 RCW, neither provides for, nor allows, the statistical averaging of recount results. Nothing about this recount methodology violates article I, section 19's requirement of "free and equal" elections.

[9]¶37 The fifth issue raised by Coday is similarly without merit. Coday claims that the practice of ballot enhancement violates the constitutional requirement of an

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"equal" election. The practice of ballot enhancement does not actually "enhance" a ballot, but instead allows a vote recorded on a ballot to be made readable by electronic voting equipment consistently with the voter's intent. WAC 434-261-005 . The secretary of state has authorized the practice of ballot enhancement ( see WAC 434-261-005 , -070, -080, and -085) and has dictated procedures to ensure that ballot enhancement occurs in a fair and transparent manner. See WAC 434-261-070 (3)(c), -080. This process does not in any way run afoul of our constitution's requirement for an "equal" election.

B. Goodall Contest

[10]¶38 Goodall bases his contest specifically on RCW 29A.68.020 (4), claiming that Gregoire gave bribes or rewards to voters in exchange for their votes. While Goodall's allegations, if true, might give rise to some legal claim, they are not cognizable under the election contest statute. Actions taken to avoid large judgments against the state do not constitute a "bribe or reward to a voter" given "for the purpose of procuring the election." RCW 29A.68.020(4). Goodall's contest, therefore, fails to satisfy the necessary legal requirements.

C. Stevens Contest

[11]¶39 The Stevens contest is based on his assertion that "error must be assumed as a certainty" because "[t]he delta value of votes given to both candidates is exponentially within the tally's margin of error." Stevens' Br. at 1. While this assertion may well be true, it does not entitle him to any relief under chapter 29A.68 RCW. He fails to point to any wrongful act or neglect of duty on the part of any election official under RCW 29A.68.011 . Furthermore, the fact that the number of votes separating the candidates was within the margin of error does not constitute "error" in the issuance of a certification of election of the type contemplated by the statute. Finally, Stevens' claims do not fall within any of the causes specified in RCW 29A.68.020 . It therefore fails to satisfy necessary legal requirements.

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D. Karr Contest

[12]¶40 While want of form and arguably deficient in evidence, the Karr contest raises issues that are clearly addressable under RCW 29A.68.020 . As noted above, she claims that there was misconduct on the part of election officials and that illegal votes were cast in favor of Gregoire. She supports these broad claims by referencing specific acts and omissions.

¶41 The first cause she puts forth, "misconduct on the part of election officers and members of the precinct election board involved [in the conduct of the election]," Karr Aff. at 1, states a claim under RCW 29A.68.020 (1) (allowing a registered voter to contest an election based on "misconduct on the part of any member of any precinct election board involved [in conduct of the election]"). Her second cause, illegal votes, falls squarely within RCW 29A.68.020 (5), which allows a voter to contest an election based on "illegal votes."

¶42 Karr's contest is "sufficient to satisfy necessary legal requirements" in that, assuming the allegations raised in her affidavit are true, she would likely be entitled to relief. Dumas , 137 Wn.2d at 282 . Karr therefore presents a cognizable claim under chapter 29A.68 RCW.

IV

[13, 14]¶43 While the Karr contest is sufficient to state a claim under chapter 29A.68 RCW, because it is identical to the Borders v. King County contest,«3»it is barred by the doctrine of res judicata. Under that doctrine, a prior judg

«3»Under ER 201, Washington courts generally do not take judicial notice of court records from a different case. However, this court has held that "where the state of the pleadings is such that the plea of res judicata cannot be interposed, and there is no opportunity to raise the point on the introduction of evidence, the court will take judicial notice of the prior decision adjudicating the issue." Reagh v. Hamilton , 194 Wash. 449 , 455, 78 P.2d 555 (1938) (citing Wilkes v. Davies , 8 Wash. 112 , 121, 35 P. 611 (1894) ("It is true that the plea of res adjudicata was not presented by the pleadings, nor was it offered in proof under the general issue, which are the two ordinary ways of bringing this question to the notice of the court. But this case falls within the rule laid down by many courts where no opportunity to plead the former adjudication is presented.")). In this case, the petitioner, Karr, did not name opposing parties and therefore there was no party to plead and prove res judicata as a defense, although the secretary of state and the Democratic Central Committee both argued in comments submitted to this court that res judicata should bar Karr's claims. Furthermore, Karr herself urged this court to "utilize the evidence from the Borders case as a foundation for ruling on this affidavit." Resp. by Pet'r to Comments Filed by the Sec'y of State and the Democrat Cent. Comm. at 5. She offered that she "does not have the legal resources or any desire to waste this Court's time by reintroducing relevant evidence and testimony already covered in the Borders case." Id . Under these unusual circumstances, we find it appropriate to take judicial notice of the oral decision in Borders .

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ment will bar litigation of a subsequent claim if the prior judgment has "a concurrence of identity with [the] subsequent action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against whom the claim is made." Loveridge v. Fred Meyer, Inc. , 125 Wn.2d 759 , 763, 887 P.2d 898 (1995).

¶44 Karr's contest is identical in subject matter (errors, omissions, and misconduct committed by elections officials in the conduct of the 2004 gubernatorial election and illegal votes cast by individuals constitutionally disqualified from voting) and cause of action (an election contest under chapter 29A.68 RCW). Furthermore, Karr is identical to the parties in the Borders case. Generally, the rules that allow for concurrence of identity between parties are quite strict. However, where "nominally different parties" pursue causes of action as voters, on behalf of the body politic generally, such parties have been found to "have sufficiently identical interests to satisfy the 'identity of parties' inquiry" because they possess "the same legal interests as all citizens of the state." In re Recall of Pearsall-Stipek , 136 Wn.2d 255 , 261, 961 P.2d 343 (1998); accord Snyder v. Munro , 106 Wn.2d 380 , 384, 721 P.2d 962 (1986) (holding that "all citizens of Washington state were well represented in" a prior suit brought by the leaders of the state Democratic and Republican organizations and state government officials, and that therefore res judicata barred registered voters from raising the same claim in a subsequent action).

¶45 While Karr was not a participant in the Borders case, she is acting in the same capacity, and has the same legal interest, as the participants in that case. Like the

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contestants in the Borders case, Karr is an elector, pursing an election contest qua elector pursuant to chapter 29A.68 RCW. Furthermore, her interest is identical to that of the Borders contestants and of all citizens of the state: ensuring a fair, just, and accurate election. She is, therefore, an identical party to the Borders contestants for res judicata purposes. Because there is a concurrence of identity between Karr's contest and the Borders contest, her contest is barred by res judicata.«4»

V. Conclusion

¶46 The parties in the contests of Coday, Goodall, Karr, and Stevens have not raised the issue of this court's jurisdiction to decide an election contest for governor. Article III, section 4, of the Washington Constitution says that election contests for statewide executives, including the governor, "shall be decided by the legislature in such manner as shall be determined by law." We have assumed, without deciding, that chapter 29A.68 RCW confers jurisdiction on this court to decide the present election contests. We reserve the right to consider the question of whether the constitution gives the legislature exclusive jurisdiction over governor's election contests if it is properly raised at some future time.

¶47 In conclusion, the contests of Coday, Goodall, and Stevens do not state a cognizable claim under the election contest statute, chapter 29A.68 RCW. Karr's contest is

«4»We are reluctant to bar citizens from exercising the right, afforded them by statute, to contest an election. However, we are also wary of numerous election contests being conducted in multiple jurisdictions, which could result in conflicting verdicts, ongoing uncertainty in the outcome of elections, and the needless expenditure of judicial resources. Thus, in cases such as this one, where parties to one election contest adequately represent the electorate (i.e., have significant stake in the outcome of the contest and invest significant resources in pursuing all viable grounds for the contest) we will invoke the doctrine of res judicata to bar substantially identical contests. However, we might well decline to apply res judicata to bar election contests where the contestants in an earlier case do not adequately represent the interests of the electorate generally.

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identical to the Borders contest and is, therefore, barred by res judicata. We, therefore, dismiss all four contests.

C. JOHNSON, MADSEN, BRIDGE, CHAMBERS, OWENS, and FAIRHURST, JJ., concur.

¶48 SANDERS,J. (dissenting) -

¶49 The majority denies Suzanne D. Karr her day in court to litigate an election contest asserting it is barred by res judicata. I strongly disagree. The mere fact that Ms. Karr and the unrelated litigants in the unappealed trial court proceeding of Borders v. King County «5»sought to contest the same election does not constitute a concurrence of cause of action or of persons or parties for the purposes of the doctrine. This ruling strikes at the heart of the fundamental right of every person to access the courts. I dissent.

I. ANALYSIS

¶50 Under well-established precedent, res judicata bars a subsequent action only if a prior judgment has concurrence of identity in "(1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made" with the subsequent action. Rains v. State , 100 Wn.2d 660 , 663, 674 P.2d 165 (1983). Where the issues or the parties are not the same, the doctrine simply does not apply. Snyder v. Munro , 106 Wn.2d 380 , 383, 721 P.2d 962 (1986) (citing Int'l Bhd. of Pulp, Sulphite & Paper Mill Workers v. Delaney , 73 Wn.2d 956 , 960, 442 P.2d 250 (1968)). As we have explained:

"Privity does not arise from the mere fact that persons as litigants are interested in the same question or in proving or disproving the same state of facts. Privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject matter of the litigation, and the rule is construed strictly to mean parties claiming under the same title. It

«5» Borders v. King County , No. 05-2-00027-3 (Chelan County Super. Ct. June 24, 2005).

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denotes mutual or successive relationship to the same right or property."

Owens v. Kuro , 56 Wn.2d 564 , 568, 354 P.2d 696 (1960) (quoting Sodak Distrib. Co. v. Wayne , 77 S.D. 496, 502, 93 N.W.2d 791, 795 (1958)).

¶51 Holding Ms. Karr and the litigants in Borders are identical parties for res judicata purposes, the majority purports to rely on Snyder and In re Recall of Pearsall-Stipek , 136 Wn.2d 255 , 961 P.2d 343 (1998). Majority at 501. Not so.

¶52 The plaintiffs in Snyder identified themselves as "members of a 'political party or group' " discriminated against by the legislative redistricting at issue in that case. Snyder , 106 Wn.2d at 384 . We found sufficient privity with parties in the prior judgment existed because "[t]he parties in the prior judgment were the acknowledged heads of the major political parties in Washington." Id . However no such relationship exists between Ms. Karr and the Borders litigants. Ms. Karr did not participate in the Wenatchee trial. The record is silent on her political affiliation, if any. Her affidavit of error or omission was filed on January 10, 2005, a mere three days after the Borders contest was filed and some five months before the ruling in that case. In short, nothing in the record suggests a " 'mutual or successive relationship' " between Ms. Karr and the parties in Borders . Owens , 56 Wn.2d at 568 (quoting Wayne , 77 S.D. at 502).

¶53 Pearsall-Stipek is similarly inapposite«6»because, unlike the petitioner in that case, Ms. Karr has not confined her affidavit to merely "present[ing] the same charges based on the same facts." Pearsall-Stipek , 136 Wn.2d at 259 . Furthermore, whereas the initial litigation in Pearsall-Stipek had exhausted all available appeals, the petitioners in Borders elected not to appeal an adverse ruling on several key legal issues. Absent some proven close connec

«6»I found Pearsall-Stipek 's dicta on res judicata unconvincing as explained in my concurrence, a concurrence ironically joined by Chief Justice Alexander.

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tion between Ms. Karr and the contestants in Borders , the fact Ms. Karr is challenging the result of the same election, standing alone, is insufficient to establish the concurrence of the parties' identity. See Loveridge v. Fred Meyer, Inc ., 125 Wn.2d 759 , 768, 887 P.2d 898 (1995) (holding "[p]rivity is established in cases where the person exercises actual control or substantially participates in the litigation").

¶54 The majority also holds Ms. Karr's and the Borders ' election contests arise under the same cause of action. Majority at 499. I disagree. Ms. Karr has stated a claim under both RCW 29A.68.020 (1), alleging "misconduct on the part of any member of any precinct election board involved [in the election]," and RCW 29A.68.020 (5), alleging Governor Gregoire was issued a certificate of election "[o]n account of illegal votes."«7»By contrast, the Borders petitioners alleged violations of RCW 29A.68.020 (5) and RCW 29A.68.011 (4) and (5), but not RCW 29A.68.020 (1). See Court's Oral Decision, Verbatim Report of Proceedings at 6 ( Borders v. King County , No. 05-2-00027-3 (Chelan County Super. Ct. June 6, 2005)). By concluding the two contests arise under an identical cause of action, majority at 501, the majority effectively merges RCW 29A.68.011(4), (5), and RCW 29A.68.020 (1), impermissibly rendering the latter superfluous. See Davis v. Dep't of Licensing , 137 Wn.2d 957 , 963, 977 P.2d 554 (1999) (statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous). Therefore, Ms. Karr's claim of "misconduct on the part of election officers and members of the precinct election board involved [in the election]"«8»under RCW 29A.68.020(1) cannot be barred by the doctrine of res judicata for the additional reason it was not raised by the petitioners in Borders .

¶55 The majority concludes its analysis by cautioning this court will invoke res judicata to bar future election

«7»Suzanne D. Karr Aff. of Error or Omission at 1, 3; see also majority at 500.

«8»Suzanne D. Karr Aff. of Error or Omission at 1.

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contests if "parties to one election contest adequately represent the electorate." Majority at 502 n.4. Put differently, the majority effectively conditions the citizens' right to contest an election on our assessment of the efficacy of any previous contests. This novel approach represents a stark departure from the well-settled principle that res judicata bars a subsequent claim if and only if congruence of "(1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made" exists, Rains , 100 Wn.2d at 663 , and threatens to undermine the doctrine in nonelection cases as well. Perhaps this language is sugar coating a poison pill - because I see no principled distinction between application of this newly invented doctrine to election contests and any other case.

¶56 While it is true in the abstract that a party with a "significant stake in the outcome"«9»of an election contest who "invest[s] significant resources in pursuing all viable grounds"«10»may also share the four concurrences of identity discussed above with a subsequent petitioner, it is not automatic and has not been demonstrated in this case. The concerns regarding conflicting verdicts in multiple jurisdictions, uncertainty regarding outcomes, and inefficient use of judicial resources raised by the majority in support of its approach are by no means unique to election contests and do not justify diluting the strict requirements of a doctrine, which can, if misapplied, strike at the heart of a person's right to access the judiciary.

¶57 Moreover the Borders petitioners waived their right to appeal, hardly evidencing vigorous pursuit of "all viable grounds." Had they done so we would likely have a published precedent from this state's highest court which would either support or undermine Ms. Karr's claims - a disincentive for further litigation on her part or anyone else's, probably also avoiding some of the practical objections the majority posits.

«9»Majority at 502 n.4.

«10» Id .

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II. CONCLUSION

¶58 Ms. Karr has the statutory right to contest this election in court. This election contest is not barred by the doctrine of res judicata because she is not in privity with the parties in the Borders contest and has invoked a distinct statutory cause of action in her affidavit.

¶59 I dissent.

J.M. JOHNSON, J., concurs with SANDERS, J.