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Washington State Council of Fire Fighters v. City of Seattle

January 13, 1997

WASHINGTON STATE COUNCIL OF FIRE FIGHTERS, A VOLUNTARY ASSOCIATION; SEATTLE FIRE FIGHTERS UNION, LOCAL 27, A VOLUNTARY ASSOCIATION; MICHAEL C. MILAM; AND BARBARA E. BANGER, APPELLANTS,
v.
CITY OF SEATTLE, A MUNICIPAL CORPORATION, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 94-2-08557-3. Date filed: 02/13/95. Judge signing: Hon. Robert S. Lasnik.

Authored by C. Kenneth Grosse. Concurring: H. Joseph Coleman, Ronald E. Cox.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- The Washington State Council of Fire Fighters, the Seattle Fire Fighters Union Local 27, and two Seattle fire fighters (the Fire Fighters) sought a declaratory judgment that they have the right to sue their employer for negligently causing work-related injuries. Because no fire fighters are alleged to have been injured and denied the ability to sue, there is not an actual dispute appropriate for judicial resolution. Accordingly, we affirm the trial court's order dismissing the declaratory judgment action, leaving the underlying constitutional and statutory construction issues to be resolved in a more appropriate case.

In 1969, the Legislature created the Law Enforcement Officers' and Fire Fighters' Retirement System (LEOFF). *fn1 As modified in 1971, LEOFF provided benefits for injured workers that were similar to, but more generous than, those provided by workers' compensation. Additionally, LEOFF members or their survivors could sue the governmental employers of LEOFF members for injuries resulting from employers' intentional or negligent acts "for any excess of damages over the amount received or receivable under this chapter." *fn2 Finally, the Legislature abolished all actions for injuries caused by the government employer except as otherwise provided by RCW 41.26. *fn3

In 1977, the Legislature created LEOFF II, a benefit plan applicable to only law enforcement officers and fire fighters becoming members of the retirement system on or after October 1, 1977. *fn4 The first plan, now called LEOFF I, was limited to members in the system before that date. For LEOFF II members, the Legislature provided retirement benefits through the LEOFF system and provided coverage under Title 51, industrial insurance for work-related injuries. *fn5 Title 51 prevents an employee from suing an employer for negligence. *fn6

In the 1977 act, the Legislature also listed several provisions of RCW 41.26 applicable only to LEOFF I or only to LEOFF II. *fn7 The section referencing the ability to sue was not included in either list.

In 1991, the Legislature reorganized and recodified the state retirement system statutes. In this recodification the right to sue was listed as applicable to both LEOFF I and LEOFF II systems. *fn8 In 1992, in legislation titled "an act relating to making technical corrections," the Legislature again recodified the provision, but purported to limit the right to sue to LEOFF I members only. *fn9

The Fire Fighters sought a declaratory judgment that the 1992 legislation was unconstitutional because it did not express the subject of the act in its bill title and was amended by reference to its title only; and a declaratory judgment that they had a cause of action for injury or death resulting from the intentional or negligent acts or omissions of their employer, the City of Seattle. *fn10 The superior court dismissed the Fire Fighters' complaint on summary judgment. It ruled that they did not present a justiciable controversy because, in the absence of existing personal injury or wrongful death action, there was not an actual dispute and because necessary parties were not part of the action.

The Declaratory Judgment Act is liberally construed to provide relief from "uncertainty . . . with respect to rights, status and other legal relations." *fn11 But "[a] challenge to the constitutionality of a statute by means of a declaratory judgment must be justiciable before it will be considered." *fn12 For an action to be justiciable, there must be: (1) an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, or speculative disagreement; (2) between parties having genuine and opposing interests; (3) that involves direct and substantial interests, rather than potential, theoretical, or abstract interests; and (4) a judicial determination of which will be final and conclusive. *fn13

The issue presented with the Fire Fighters' claim is whether the dispute is an "actual" dispute or whether it is only a speculative or possible dispute. The two individual fire fighters have not suffered any workplace injuries for which they wish to sue their employer. Nor do the Council of Fire Fighters or the local union claim to be representing any such person. Thus, the dispute is "possible" and "potential" rather than "actual." Normally, under these circumstances, courts wait until an actual injury before permitting a suit. *fn14 For instance, in Anderson, our Supreme Court declined to consider the issue of the constitutionality of possible sanctions under the Growth Management Act because the issue would be more effectively litigated by cities actually challenging the act. *fn15

The Fire Fighters contend their legal and bargaining positions are uncertain with respect to their benefits and this merits a finding of an actual dispute. They argue that the ambiguity in the law necessitates an immediate resolution in the Fire Fighters' case. In the cases they rely on, Washington Fed'n of State Employees and Clallam County Deputy Sheriff's Guild, the employees were subject to conflicting personnel systems and faced immediate questions that required resolution. *fn16 No such immediate situation is presented here and we decline to extend the rationale of these cases to the Fire Fighters' case.

The Fire Fighters argue in the alternative that this case should be considered as a case of "great public interest" which, in the absence of circumstances normally required to make a dispute justiciable, the court may exercise its jurisdiction to render a declaratory judgment. *fn17 They argue that this is an issue affecting the public interest because it affects the morale and security of LEOFF II fire fighters. Although the Legislature has the express goal of promoting the "dedicated service" of fire fighters as a "vital interest" of the state, *fn18 the link between the public interest and this case is nebulous. Moreover, the Fire Fighters' constitutional claims turn on whether the original 1977 statute and 1991 recodification gave LEOFF II members a right to sue their employers (thus making the 1992 act an improper amendment rather than a recodification or clarification). The Fire Fighters cite only three cases since 1977 in which a LEOFF II member has attempted such a suit. The issue, therefore, is not of importance to any substantial portion of the public, or even to a large number of LEOFF II members. To the extent LEOFF II members are interested in the issue, it would more appropriately be resolved either by the Legislature or in a case brought by a LEOFF member with an actual claim against his or her employer. *fn19

In summary, we affirm the trial court because the Fire Fighters have not stated a ...


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