State of Washington Supreme Court:
Philadelphia II v. Gregoire, 128 Wn.2d 707 (1996)
(Washington State decision that it is not within state power to
enact federal law, which a Philadelphia II state initiative
proposed.)
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128
Wn.2d 707, PHILADELPHIA II v. GREGOIRE
[No.
62663-4. En Banc. February 29, 1996.] |
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PHILADELPHIA II, ET AL., Appellants, v. CHRISTINE O. GREGOIRE,
Respondent. |
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[1]
Appeal - Decisions Reviewable - Moot Questions - Public Interest -
Factors. An appellate court may consider a moot issue if it involves
a matter of substantial public interest. In determining the degree
of public interest implicated by the moot issue, the court must
consider (1) whether the issue is of a public or private nature, (2)
whether an authoritative determination is desirable to provide
further guidance to public officers, and (3) whether the issue is
likely to recur. An additional factor that may be considered is the
likelihood that the issue will never be decided by a court due to
the short-lived nature of the case.
[2]
Statutes - Initiatives - Ballot Title - Outside Scope of Legislative
Power - Discretion of Attorney General. The Attorney General lacks
the discretion to refuse to prepare a ballot title and summary for a
properly submitted initiative petition on the basis that the subject
matter of the initiative is beyond the scope of the State's
legislative power.
[3]
Statutes - Construction - Meaning of Words - "Shall" - In General.
The word "shall" in a statute imposes a mandatory requirement unless
a contrary legislative intent is shown. |
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Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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[4]
Statutes - Construction - Meaning of Words - "Shall" - "May" in Same
Statute - Effect. The use of the words "shall" and "may" in a
statute is a strong indicator of the Legislature's intent that
"shall" is to have a mandatory meaning.
[5]
Constitutional Law - Construction - Proper Forum - In General. The
construction of the meaning and scope of a constitutional provision
is exclusively a judicial function.
[6]
Statutes - Initiatives - Validity - Scope of Initiative Power -
Authority To Decide. The question of whether an initiative petition
exceeds the power reserved to the people by Const. art. II, § 1 is
solely for the courts to decide.
[7]
Attorney General - Statutes - Initiatives - Validity - Role of
Attorney General. When the Attorney General believes that an
initiative petition exceeds the scope of the initiative power, the
Attorney General should prepare the ballot title and summary in
accordance with the statutory duty and then seek an injunction to
prevent the measure from being placed on the ballot. [Dictum.]
[8]
Appeal - Review - Issues Likely To Occur After Remand - Judicial
Economy. In the interests of judicial economy, an appellate court
may consider an issue that is likely to occur following remand if
the parties have briefed and argued the issue in detail.
[9]
Statutes - Initiatives - Validity - Time of Determination - Before
Submission to People. A court may review a proposed initiative
before its submission to the electorate to determine if it is within
the scope of the initiative power established by Const. art. II, §
1.
[10]
Statutes - Initiatives - Validity - Nature - Jurisdictional
Authority - Necessity. An initiative is not valid unless it is
legislative in nature and within the scope of authority of the
jurisdiction in which it is to apply.
SANDERS, J., did not participate in the disposition of this case.
Nature
of Action: The supporters of an initiative petition sought a writ of
mandamus to compel the Attorney General to prepare a ballot title
and summary.
Superior Court: The Superior Court for Thurston County, No.
95-2-00349-1, Wm. Thomas McPhee, J., on February 13, 1995, dismissed
the action on the grounds that the subject of the initiative did not
fall within the legislative authority of the state. |
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128 Wn.2d 707, 911 P.2d 389 |
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Supreme
Court: Holding that the Attorney General was obligated to prepare a
ballot title and summary, but that the initiative concerned subjects
beyond the scope of state law and was invalid, the court affirms the
decision of the trial court.
Mike Gravel, pro se; Robert D. Adkins, pro se; and
Michael J. Underwood, for appellants.
Christine O. Gregoire, Attorney General, and Jeffrey T. Even and
James K. Pharris, Assistants, for respondent.
PEKELIS, J.P.T.«*» - Petitioners appeal a decision of
a superior court dismissing their petition to obtain a ballot title
from the Attorney General for Initiative 641. The superior court
dismissed the petition because it determined that the initiative did
not fall within the scope of the legislative authority of the state.
Although we conclude that the Attorney General should have prepared
the ballot title, we also hold that the initiative goes beyond the
scope of power reserved to the people in our state constitution and
thus should not appear on the ballot. We therefore affirm the
superior court.
Petitioner Philadelphia II is a nonprofit corporation
set up in order to put Initiative 641, also named Philadelphia II,
on the ballot in Washington State. Petitioners also include Robert
Adkins, a Washington State voter, and Mike Gravel, principal
architect of the Philadelphia II initiative.
«*» Justice Rosselle Pekelis is serving as a justice
pro tempore of the Supreme Court pursuant to Const. art. IV, § 2(a)
(amend. 38).
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PHILADELPHIA II v. GREGOIRE |
Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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The Philadelphia II initiative seeks to establish in
the United States "direct democracy" by means of a federal,
nationwide initiative process to complement the current
congressional system, and ultimately to call a world meeting where
representatives from participating countries will discuss global
issues. The sponsors of Philadelphia II believe that if 51 percent
of the nation's eligible voters choose to adopt Philadelphia II, it
will automatically become federal law.
The sponsors hope to achieve
this goal by placing the Philadelphia II measure before voters in
individual states, thereby gaining the necessary 51 percent of votes
if successful.
The initiative has 12 sections. The substantive
sections declare that direct democracy is "hereby initiated . . .
through a national state-by-state initiative process whereby this
act is enacted as state law by the approval of state voters."
Washington State Initiative 641, Clerk's Papers at 12. Philadelphia
II also creates the United States Electoral Administration (USEA) to
facilitate this process. Among the USEA's functions are to place the
Philadelphia II initiative on other state ballots or conduct its own
elections if no means exist to place an initiative on a state's
ballot, to create a legislative drafting service to assist citizens
in the preparation of their initiatives, to defend the right of
direct democracy against legal challenges, and to develop a voter
registration system. The initiative also appropriates state money as
a loan to the USEA, to be repaid from federal funds when
Philadelphia II becomes federal law. The USEA is subject to
Washington state law and federal law where applicable.
Philadelphia II sets forth new procedures and
regulations for initiatives on local, state, and national levels,
subject to compliance with a state's constitution. It also mandates
that the USEA provide, at public expense, information about citizen
initiatives and sets regulations regarding fundraising and
disclosure by sponsors and opponents of initiatives.
Other sections of the initiative deal with the world |
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meeting, to be held when a "critical mass" of one
billion people worldwide have expressed their willingness through
democratic initiative or referendum to hold the meeting.
Philadelphia II sets forth methods to determine the time and place
of the meeting, as well as complicated procedures to determine the
number of each nation's delegates. Any declarations ensuing from the
meeting will not be binding on the participating nations.
The remaining sections are primarily procedural,
providing that all governmental jurisdictions shall cooperate to the
greatest extent possible and that in the event a section is deemed
unconstitutional, the other sections remain in force. If
Philadelphia II has not become law within 10 years of its passage in
Washington, it shall be null and void. If, on the other hand, it
becomes federal law, it shall be deleted from the state codes and
added to the federal code.
Petitioners filed the initiative with the Secretary
of State pursuant to RCW 29.79.010. The Secretary of State then
transmitted the proposed initiative to the Office of the Attorney
General for preparation of a ballot title and explanatory statement.
However, the Attorney General refused to prepare the title or
statement, explaining in a letter to the Secretary of State that
"the contents of the measure are beyond the legislative power
reserved to the people under the Washington State Constitution."
Letter of 1/26/95 from Pharris to Secretary of State, Clerk's Papers
at 9. Specifically, the Attorney General determined that much of the
initiative was a declaration of philosophy and thus not legislation,
that the USEA would not be a state agency, and that, in general, the
initiative sought to exercise legislative power outside the borders
of Washington State.
Petitioners filed suit against the Attorney General
in superior court, seeking, inter alia, a writ of mandamus ordering
the Attorney General to prepare a ballot title and explanation. The
superior court dismissed the action, holding that the initiative was
not within the scope of the |
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PHILADELPHIA II v. GREGOIRE |
Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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legislative authority of Washington State. We granted
review of the order.
[1] As a preliminary matter, we address whether the
appeal is moot. Although neither party has raised the issue, the
initial relief requested by Petitioners can no longer be granted
since the time for filing for the November 1995 election has already
passed. However, we may decide to review a case, even though moot,
if it involves a matter of "substantial public interest." Westerman
v. Cary, 125 Wn.2d 277, 286, 885 P.2d 827, 892 P.2d 1067 (1994)
(quoting Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d
512 (1972)). This analysis comprises three factors: "(1) whether the
issue is of a public or private nature; (2) whether an authoritative
determination is desirable to provide future guidance to public
officers; and (3) whether the issue is likely to recur." Id.
(quoting Hart v. Department of Social & Health Servs., 111 Wn.2d
445, 448, 759 P.2d 1206 (1988)). In addition, we consider the
likelihood that the issue will never be decided by a court due to
the short-lived nature of the case. Id. at 286-87.
We determine
that this case involves an issue of "substantial public interest"
and reach the merits. Each of the three factors weighs in favor of
review. The issue is of a public nature, it would be desirable to
provide guidance to the Attorney General for future actions, and the
issue is likely to recur. Not only are these factors present,
but review will also avoid a situation in which the Attorney General
could prevent initiatives from ever appearing on the ballot simply
by refusing to prepare the ballot title, knowing that the case would
be moot by the time it was reviewed by this court. We find these
reasons adequate to justify review of the substantive issues.
Turning to an analysis of the merits of the case, we
first consider whether the Attorney General had the authority to
refuse to prepare a ballot title and summary for the Philadelphia II
initiative.
[2] Although we have not previously addressed the
precise issue before us, statutory language and analogous |
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PHILADELPHIA II v. GREGOIRE |
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case law compel the conclusion that the Attorney
General does not have discretion to refuse to prepare a ballot title
due to the initiative being beyond the scope of Washington's
legislative power.
The duties of the Attorney General regarding initiative ballot
titles and summaries are set forth in RCW 29.79.040:
Within seven calendar days after the receipt of an initiative or
referendum measure the attorney general shall formulate and transmit
to the secretary of state the concise statement [posed as a question
and not to exceed twenty words], bearing the serial number of the
measure and a summary of the measure, not to exceed seventy-five
words, to follow the statement.
RCW 29.79.040 (emphasis added).
[3, 4] Use of the term "shall" by the Legislature indicates that the
Attorney General must prepare a ballot title and summary regardless
of the content of the initiative. The statutory term "shall" is
presumptively imperative unless a contrary legislative intent is
apparent. State v. Krall, 125 Wn.2d 146, 148, 881 P.2d 1040 (1994)
(quoting Erection Co. v. Department of Labor & Indus., 121 Wn.2d
513, 518, 852 P.2d 288 (1993)). No contrary legislative intent has
been cited by the Attorney General. Furthermore, this presumption is
strengthened where, as here, other sections of the same statute
contain the word "may." Krall, 125 Wn.2d at 148; compare RCW
29.79.040 (Attorney General "shall" prepare title) with RCW
29.79.150 (Secretary of State "may" refuse to file initiative
petition if not in proper form). There is simply no indication that
the Legislature intended the Attorney General to review the petition
for its substance.
Our determination that the Attorney General lacks discretion in
preparing a ballot title and summary is consistent with prior
Washington cases. In Ballasiotes v. Gardner, 97 Wn.2d 191, 195, 642
P.2d 397 (1982), we held that a county prosecutor overstepped the
bounds of his authority by refusing to prepare a ballot title for a
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714 |
PHILADELPHIA II v. GREGOIRE |
Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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referendum because he believed the subject matter
to be exempt from the county charter authorizing referendums. As
here, the authorizing statute used the term "shall" in describing
the prosecutor's duties to prepare a ballot title. Id. at 195. See
also State ex rel. O'Connell v. Kramer, 73 Wn.2d 85, 88-89, 436 P.2d
786 (1968) (holding that Secretary of State could not refuse to
transmit initiative to Attorney General); Save Our State Park v.
Hordyk, 71 Wn. App. 84, 91, 856 P.2d 734 (1993) (holding that county
auditor had no authority to refuse to put an initiative on the
ballot).
[5, 6] Moreover, the Attorney General's argument that if an
initiative exceeds the scope of initiative power, it is not an
initiative at all and that the Attorney General therefore has
neither the duty nor the authority to prepare the ballot title and
summary begs the question of whether the Attorney General or the
courts should be determining the validity of the proposed measure.
It is true that a court may review the substance of a proposed
initiative to determine whether it exceeds the scope of initiative
power described in Article II, Section 1, of the Washington State
Constitution.«1» See, e.g., Seattle Bldg. & Constr. Trades Council
v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980); Ford v.
Logan, 79 Wn.2d 147, 152, 483 P.2d 1247 (1971). However, the
construction of the meaning and scope of a constitutional provision
is exclusively a judicial function. State ex rel. Munro v. Todd, 69
Wn.2d 209, 213, 417 P.2d 955 (1966) (interpreting article IV,
section 1, of the state constitution), amended on other grounds by
426 P.2d 978 (1967); Washington State Highway Comm'n v. Pacific
Northwest Bell Tel. Co., 59 Wn.2d 216, 222, 367 P.2d 605 (1961)
(interpreting article IV, section 1, of the state constitution).
Accordingly, we hold that courts, not the Attorney General, should
determine whether a proposed initiative exceeds the power reserved
to the
«1» Article II, Section 1, of the Washington State Constitution
establishes the initiative and referendum processes whereby the
people may enact or reject laws independently of the Legislature. |
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Feb. 1996 |
PHILADELPHIA II v. GREGOIRE |
715 |
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128 Wn.2d 707, 911 P.2d 389 |
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people in article II, section 1, of the state
constitution. See also Fischnaller v. Thurston County, 21 Wn. App.
280, 285, 584 P.2d 483 (1978) (holding that county auditor could
reject declaration of candidacy only if not required to interpret
constitutional or statutory language), review denied, 91 Wn.2d 1013
(1979).
Finally, we note that this result accords with the majority of our
sister states addressing this issue. See Schmitz v. Younger, 21 Cal.
3d 90, 577 P.2d 652, 653, 145 Cal. Rptr. 517 (1978) (describing
preparation of ballot title by attorney general as purely
ministerial); deBottari v. Norco City Council, 171 Cal. App. 3d
1204, 217 Cal. Rptr. 790, 792 (1985) (holding that city council had
mandatory duty to place referendum on ballot and citing other
California cases holding that city registrar, county clerk, county
board of supervisors, and the secretary of state similarly had
mandatory duties), review denied, December 19, 1985; Wyman v.
Secretary of State, 625 A.2d 307, 311 (Me. 1993) (holding that
secretary of state had no discretion to determine potential
invalidity of initiative); Williams v. Parrack, 83 Ariz. 227, 319
P.2d 989, 991 (1957) (holding that city council had ministerial duty
to place initiative on ballot); Fried v. Augspurger, 164 N.E.2d 466,
468 (Ohio Corn. PI. 1959) (stating that board of county
commissioners had mandatory duty to place referendum on ballot once
sufficient, valid signatures obtained); but see Paisner v. Attorney
General, 390 Mass. 593, 458 N.E.2d 734, 737-38 (1983) (holding that
attorney general has discretion to determine whether initiative
would enact "law" before certifying petition); State ex rel. Brant
v. Beermann, 217 Neb. 632, 350 N.W.2d 18, 21 (1984) (stating that
secretary of state cannot pass on validity of initiative unless the
subject of the initiative is invalid or unconstitutional on its
face).
[7] This does not leave the Attorney General without recourse to
prevent an initiative from reaching the ballot. If the Attorney
General believes an initiative exceeds the scope of the initiative
power, she should prepare the |
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PHILADELPHIA II v. GREGOIRE |
Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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ballot title and summary in accordance with her
statutory duty and then seek an injunction to prevent the measure
from being placed on the ballot. See Save Stanislaus Area Farm
Economy v. Board of Supervisors, 13 Cal. App. 4th 141, 16 Cal. Rptr.
2d 408, 412-13 (1993) (holding that public official must comply with
ministerial duties even if initiative invalid; official could then
bring court action to enjoin the initiative); cf. Ford v. Logan, 79
Wn.2d 147, 483 P.2d 1247 (1971) (affirming court order to enjoin
initiative from being placed on the ballot).
[8] Because the parties have fully briefed and argued the
substantive issues in detail, and the validity of the initiative
itself was the ground for the denial by the superior court of the
petition by Philadelphia II, we proceed to the substantive question
of whether the Philadelphia II initiative did in fact exceed the
scope of the initiative power. Additionally, there is every reason
to believe that the Attorney General would seek an injunction if we
were to remand the case. Therefore, judicial economy compels us to
address this issue here. See also deBottari v. Norco City Council,
171 Cal. App. 3d 1204, 217 Cal. Rptr. 790 (1985) (reaching merits of
pre-election judicial review despite holding that city council had
breached mandatory duty to submit initiative to vote), review
denied, December 19, 1985.
[9] The initiative power was created in 1911 by constitutional
amendment. The amendment provided that "[t]he legislative authority
of the state of Washington shall be vested in the legislature . . .
but the people reserve to themselves the power to propose bills,
laws, and to enact or reject the same at the polls, independent of
the legislature . . . ." Wash. Const. art. II, § 1. Generally,
courts are reluctant to rule on the validity of an initiative before
its adoption by the people. This reluctance stems from our desire
not to interfere in the electoral process or give advisory opinions.
Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d
740, 746, 620 P.2d 82 (1980). |
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Feb. 1996 |
PHILADELPHIA II v. GREGOIRE |
717 |
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128 Wn.2d 707, 911 P.2d 389 |
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However, an established exception to this rule in
Washington is that a court will review a proposed initiative to
determine if it is beyond the scope of the initiative power. Id. at
746 (citing, inter alia, Leonard v. City of Bothell, 87 Wn.2d 847,
557 P.2d 1306 (1976); Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447
(1973); Ford v. Logan, 79 Wn.2d 147, 483 P.2d 1247 (1971)). The
reasoning behind the exception was stated as follows:
A fundamental limit on the initiative power inheres in its nature as
a legislative function reserved to the people. . . . It is clear
from the constitutional provision that the initiative process, as a
means by which the people can exercise directly the legislative
authority to enact bills and laws, is limited in scope to subject
matter which is legislative in nature.
Ford v. Logan, 79 Wn.2d 147,154-55, 483 P.2d 1247 (1971).«2»
The idea that courts can review proposed initiatives to determine
whether they are authorized by article II, section 1, of the state
constitution is nearly as old as the amendment itself. See State ex
rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916)
(enjoining printing and distribution of proposed initiative measure
due to preamble being improper argument and not legislative in
character). Recognizing the importance of the initiative power,
however, this court has allowed for pre-election review only in rare
circumstances, consistently making the distinction that while a
court may decide whether the initiative is authorized by article II,
section 1, of the state constitution, it may not rule on the
constitutional validity of a proposed initiative. Seattle Bldg. &
Constr. Trades Council, 94 Wn.2d at 745-46. We adhere to that
distinction and review the Philadelphia II initiative only to
determine
«2» Petitioners correctly note that the Ford v. Logan lead opinion,
from which this language is taken, was signed by only three
justices, with two justices concurring in the result only. However,
the principle that courts may review initiatives to determine if
they are legislative in character has been restated in numerous
opinions. See, e.g., Seattle Bldg. & Constr. Trades Council v. City
of Seattle, 94 Wn.2d 740, 620 P.2d 82 (1980); Ruano v. Spellman, 81
Wn.2d 820, 505 P.2d 447 (1973). |
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PHILADELPHIA II v. GREGOIRE |
Feb. 1996 |
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128 Wn.2d 707, 911 P.2d 389 |
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whether it is authorized by article II, section 1, of
the state constitution.
Petitioners urge us to overrule Ford v. Logan and subsequent case
law to hold that no pre-election review is proper, provided that
procedural requirements have been met and there is no indication of
fraud.«3» However, the rationale of the Ford court in distinguishing
review of the constitutional validity of a proposed measure and
whether the measure is authorized by our state constitution is sound
and finds support among commentators and other jurisdictions. See
James D. Gordon III & David B. Magleby, Pre-Election Judicial Review
of Initiatives and Referendums, 64 Notre Dame L. Rev. 298, 313, 320
(1989) (recommending distinction and stating that most courts allow
pre-election review of procedural and subject matter limitations).
The distinction recognized by Ford allows a sensible balance between
allowing a court to prevent public expense on measures that are not
authorized by the constitution while still protecting the initiative
power from review of an initiative's provisions for possible
constitutional infirmities. We thus decline to overrule Ford and
consistent cases.
[10] As we have discussed, the initiative process is limited to acts
that are legislative in nature. Ford, 79 Wn.2d at 154. For example,
in Ford, we held that an attempt to repeal the King County charter
by initiative was beyond the scope of permissible authority as it
was more in the nature of a constitutional amendment than the mere
legislative act authorized in the state constitution. Id. at 156-57.
We have affirmed Ford's reasoning numerous times in distinguishing
initiatives proposing legislative acts from those proposing
administrative acts, enjoining the latter. See, e.g., Heider v. City
of Seattle, 100 Wn.2d
«3» Petitioners also argue that article I, section 1, of our state
constitution, which declares that "[a]ll political power is inherent
in the people" confers initiative powers on state citizens.
Petitioners cite no authority for their claim that this section
provides an independent basis for an exercise of initiative power.
Moreover, the general language "all political power is inherent in
the people" does not provide us with any guidance on this issue. |
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Feb. 1996 |
PHILADELPHIA II v. GREGOIRE |
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128 Wn.2d 707, 911 P.2d 389 |
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874, 675 P.2d 597 (1984); Ruano v. Spellman, 81 Wn.2d
820, 505 P.2d 447 (1973).
Not only must the proposed initiative be legislative in nature, but
it must be within the authority of the jurisdiction passing the
measure. Seattle Bldg. & Constr. Trades Council, 94 Wn.2d at 747. In
that case, we affirmed an injunction preventing a vote on a citywide
initiative because it conflicted with state law. Id. at 745, 748. We
reasoned that the initiative attempted to achieve something that was
not within its power and was thus invalid. Id. at 748.
Therefore, in order to be a valid initiative, Philadelphia II must
be legislative in nature and enact a law that is within the state's
power to enact. With these restrictions in mind, we examine the
Philadelphia II initiative and conclude that it goes beyond the
scope of Washington State initiative power as it attempts to
exercise authority that goes beyond the jurisdiction of the state.
The fundamental and overriding purpose of Philadelphia II is to
create a federal initiative process. Although state procedures for
initiatives are affected by Philadelphia II, these changes are
incidental to the primary goal of the initiative. The entire
initiative is suffused with a purpose that is national or global in
scope. For example, the section creating the electoral agency
responsible for presiding over state and national initiatives
declares its purpose as "to permit the full expression of
sovereignty of citizens in every political jurisdiction in the
United States . . . ." Initiative 641, § 4, Clerk's Papers at 13.
Furthermore, a substantial portion of the initiative is devoted to
procedures for calling a "world meeting" when an appropriate number
of citizens worldwide express their willingness via initiatives to
participate in such an event. Significantly, if the initiative does
not eventually become enacted as federal law, it is deleted from the
state codes. If the initiative does become federal law, it is also
deleted from state codes. Thus, the proposed change in state law is
merely an ephemeral stepping stone to a national initiative process
and has no independent state purpose. |
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720 |
STATE v. JIMENEZ |
Mar. 1996 |
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128 Wn.2d 720, 911 P.2d 1337 |
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While the goals of the
Philadelphia II initiative may
be laudable, it is simply
not within Washington's power to enact
federal law. Our initiative process establishes a method independent
from the Legislature for enacting state laws and cannot be used to
enact laws beyond the jurisdiction of the state. Consequently, the
Philadelphia II initiative does not fall within the provisions in
our state constitution for initiatives.
In conclusion, the Attorney General should have prepared the ballot
title and summary and then sought to enjoin its placement on the
ballot. Nevertheless, because we determine that the initiative is
beyond the scope of Washington's initiative power, we decline to
direct the Attorney General to do so in this case. The judgment of
the superior court is affirmed.
DURHAM, C.J., and DOLLIVER, SMITH, GUY, JOHNSON, MADSEN, ALEXANDER,
and TALMADGE, JJ., concur. |
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