In this case, Spokane v, Rothwell, the Washington Court of Appeals said a judge did not have jurisdiction over City of Spokane cases because she was not elected by the people of Spokane. Since 1962, Spokane has used the Spokane District Court and its judges as its municipal court.
he city has started the process of going to its own municipal court but there was a dispute as to how this was to take place. The Washington Supreme Court said the city could terminate its agreement with the District Court but the termination could only take place when all of the current city cases were transferred the city's new municipal court. A new court was never created and the city and District Court continued under the old agreement.
In Rothwell, the Court of Appeals said judges of the District Court acting as municipal court judges had to also be elected by the people of Spokane. It said this was required under its reading of RCW 3.46.063.
It also said there was no "de facto" municipal court within the District Court because the agreement between the city and the county had come to an end.
The Court of Appeals was wrong. First, there was a de facto municipal court because the agreement between the city and the county had not come to an end. It could only come to an end when all of the city's District Court cases were transferred to a newly created city municipal court. See City of Spokane v. Spokane County. No new municipal court was created. Therefore, the District Court municipal court was still in existence. This was a requirement of the Supreme Court to effect a termination of the District Court municipal court. City law provided its agreement with the district court could only end if it was ended in compliance with RCW 3.46.150. The Supreme Court required a new municipal court and transfer of all district court municipal court cases to the new court. As I have said, this never happened. The district court municipal court continued. There was a de facto city municipal court under the law. The Court of Appeals was in error.
The Court of Appeals was also in error regarding its interpretation of RCW 3.46.063. This section does not change the law -- cities can still appoint judges under the statute. However, if it opted for election then certain election requirements were imposed as of 1993 when RCW 3.46.063 was enacted, The basic statute providing for districting agreements allows for appointment or election of the municipal judges. If to be elected then the manner of election under RCW 3.46.063 has certain requirements. This section cannot be said to do away with the appointment option under RCW 3.46.020. If that is what the legislature had wanted to do it would have said so. But it did not.
I have taken the position that "The Park Department is a separate or adjuvant municipal corporation within the City of Spokane. Only the Board of the Spokane Park Department has the authority to select and replace the director. .. ."
The mayor disagrees and has fired the current director of the Park Department, hired an interim director, and just recently appointed a new director. The City Council has appoved the mayor's nomination.
The city attorney has asserted that the position I advance, that the Park Board is responsible for the hiring and fireing of the director of the Park Department. In a memorandum to the mayor dated December 7, 2007, the then city attorney says this:
An opinion has apparently been expressed to you that, "The Park Department is a separate or adjuvant municipal corporation within the City of Spokane. Only the Board of the Spokane Park Department has the authority to select and replace the director. . . ." The author of this opinion references Section 48 of the City Charter. The opinion is incorrect.
Under our Charter and relevant laws, the Mayor (in consultation with the Park Board) has the power and responsibility to appoint and remove the Director.
Section 48 of the Charter is completely silent as to the appointment and removal of the Director of Parks and Recreation. However, Section 24 of the Charter sets forth the considerable powers of the Mayor as "the executive and administrative officer of the city." Included therein is the power ". . . to appoint and remove the administrative heads . . . in each department of the city government. . . ." In addition, and pursuant to Section 24 (4), "The mayor shall have the power to appoint and remove . . . all other officers and employees of the city of Spokane . . . ."
The Director of Parks and Recreation is an "administrative head" of a "department of the city government", and is therefore subject to the appointment and removal powers set forth in Section 24 (1). Please also note Section 50 of the Charter which mandates the allocation of funds to be ". . . used for the support of the parks and recreation department . . . ." (Italics mine). In addition, Spokane Municipal Code section 3.01.910 charges the Park Board with carrying out its duties "through the department of parks and recreation." (Italics mine). SMC 3.01.910 (D) vests in the Mayor the power to appoint the Director, with Park Board concurrence.
Even if one assumes incorrectly that the subject position is not properly characterized as being occupied by a department head, then Section 24 (4) clearly grants appointment and removal power over "all other officers and employees of the city of Spokane." That the Director is an employee of the City of Spokane is beyond debate. See also, Seattle ex rel. Dunbar v. Dutton, 147 Wash. 224 (1928), at 226, wherein the Court addressed similar issues arising from the City of Seattle.
Based on traditional rules of construction, one is entitled to assume that had the author of the Charter intended to grant the appointment and removal power to the Park Board, the mandate of such power would be clearly stated in Section 48, exactly as it is in the analogous context of Article VI, Section 52 (c) dealing with the Civil Service Commission. This provision is crystal clear: "The commission shall employ a chief examiner . . . ." This straightforward mandate, if actually intended, could easily have been set forth in Section 48 addressing the powers of the Park Board. It obviously was not included and its absence is instructive.
The Mayor of Spokane is a strong mayor by design. Personnel matters, particularly those of appointment and removal, are exclusively within her purview, absent contrary instruction from the Charter or other law. This concept applies directly to the appointment and removal process addressed herein.
Please advise should you wish further information on this topic. Thank you very much.
In future posts I will explain why the city attorney is in error.
The Washington Court of Appeals, Division Three, decided another case dealing with whether the Washington Public Disclosure Act (RCW Ch. 42.56) applies to non-public entities which provide government services at the behest of the government. Leonora Claire Clarke v. Tri-Cities Animal Care & Control Shelter, No. 25222-1 - III (Apr. 24, 2008). In this case, the court held the PDA did apply.
The issue was the same in Spokane Research & Defense Fund v. West Central Community Development Association, 137 P.3d 120, 133 Wash.App. 602, pet. rev. denied (2006). In this case, the court held that the non-public entity providing government services was not subject to the PDA.
So what was the difference? When one looks at the facts of the cases one will find that the facts of each are not fundamentally different. One will also find that the law applied in one is the same law applied in the the other. The similarity of facts is further enhanced by virtue of the legislative dierection that the PDA is to be liberally construed and liberally applied. RCW 42.56.030.
So what was the reason for the difference? There can be no reason based upon the law. There can be no real reason based upon the facts. So why is there a difference? Is it the judges -- not really, because two of the judges were two of the three in both cases. The author of the second opinion (D. Stephens, J), the one in which the court reached the right result under the PDA is clearly a better judge than the other two and significantly better than the judge who was not on the panel in the second case. In addition, this judge is clearly a better thinker than the judge who was the author of the first decision ( S. Brown, J).
So what was the difference for the judges who were on both of the cases? Why did they act inconsistently? The only conclusion one can reach is that for these two, irrational processes were at stake. Maybe they liked the plaintiff in one case but not the other, maybe they had a disregard for one or more of the attorneys, maybe the services the agency was performing in one case were more appealing that than the services performed by the other? One could only guess.
In any case it looks as though at least two judges on the Court of Appeals make decisions based upon irrational factors at least as far as these two cases may be concerned. That is, they decide cases arbitrarily and not according to the law and the facts. More troublesome is that these judges seem to allow the court to be used for purposes of the dispensation of power based upon the arbitrary whims of the judges.
The court affords the protection of the law to some but not to others. Its actions are arbitrary. They are political. They constitute the use of power for some and the denial of the power to others in cases which are essentially the same.
