[Nos. 25316-3-III; 25317-1-III. Division Three. November 8, 2007.]
[1] Courts of Limited Jurisdiction — Municipal Courts — Creation — Election of Judges — Validity — Questions of Law or Fact — Review. Whether a city's approach to creating a municipal court and to electing municipal court judges complies with statutory requirements are questions of law that are reviewed de novo. [2] Courts of Limited Jurisdiction — Municipal Courts — Creation — Election of Judges — Statutory Provisions — Compliance — Strict Compliance. A city must strictly comply with the statutory requirements for creating municipal courts and electing municipal court judges because they implicate the franchise rights of the citizens of the city. [3] Courts of Limited Jurisdiction — Municipal Courts — Creation — Election of Judges — By City Voters — Designated Positions — Necessity. Under RCW 3.46.063 and .070, a judge may not serve on a municipal court in a full-time equivalent or one-half-time or more capacity unless the position is designated by the county auditor and the judge is elected by the citizens of the municipality to that position. A judge who has not been elected solely by city voters to a properly designated position does not have the authority to serve on the court. The statutory requirements are not satisfied where the judge is elected to a district court in a county-wide election and serves as a municipal court judge on a rotating basis with other district court judges. [4] Judges — De Facto Judge — What Constitutes. A person does not have de facto authority to act as a judge if the person was not elected or appointed to the office as required by law. De facto authority requires some color of right to hold the office, exercise its functions, and discharge its duties. Absent an appointment or election to the office, the person has no color of right to exercise de facto authority or to adjudicate cases in the court. [5] Courts of Limited Jurisdiction — Municipal Courts — Judges — De Facto Judge — What Constitutes. A person does not have de facto authority to act as a municipal court judge if the person was not elected to the office as required by RCW 3.46.063 and .070. De facto authority requires some color of right to hold the office, exercise its functions, and discharge its duties. Absent an election to the office, the person has no color of right to exercise de facto authority or to adjudicate cases in the court. [6] Courts of Limited Jurisdiction — Municipal Courts — Judges — De Facto Judge — Lawfully Created Municipal Court — Necessity. A person does not have de facto authority to act as a municipal court judge absent the existence of a lawfully created municipal court. BROWN, J., dissents by separate opinion. Nature of Action: Prosecutions for municipal violations of being in physical control of a motor vehicle while under the influence of an intoxicant and driving while under the influence of an intoxicant. Municipal Court: The Spokane County District Court, Municipal Department, Nos. B40445 and B42847, Patricia C. Walker, J., entered judgments of guilty on August 5 and July 29, 2005. Superior Court: The Superior Court for Spokane County, Nos. 05-1-02841-7 and 05-1-02790-9, Rebecca M. Baker, J., affirmed the judgments on June 13, 2006. Court of Appeals: Holding that the trial judge did not lawfully hold office as a municipal court judge and had no authority to try the prosecutions or to impose judgment thereon, the court reverses the decision of the superior court and the judgments. Breean L. Beggs- (of Center for Justice), for petitioners. James Craven-, City Attorney, and Michelle D. Szambelan-, Assistant, for respondent. ¶1 SWEENEY, C.J. — Spokane county voters elect district court judges. But those judges also preside over Spokane city municipal cases, with the judges sitting as "municipal court judges" by designation. This is despite the fact that state statute mandates that only city voters may select municipal judges. And all of the Spokane County district court judges are designated as part-time municipal judges despite another state statute that requires designation of municipal departments. We conclude, therefore, that the way in which the Spokane municipal judges are elected is contrary to state law. We therefore reverse these convictions. FACTS ¶2 The city of Spokane entered into an agreement (Interlocal Agreement) in 2004 with the county of Spokane for the county to provide municipal court services for the equivalent of 3.7 full-time judges and related services. The county district court is serviced by nine judges elected county-wide. There are no elections for municipal judges per se. The "municipal department" is instead rotated among the district court judges based on a schedule. The parties suggest that the schedule is created by the district court itself, but there is no information in this record one way or the other. The agreement ended by its terms on December 31, 2004. But, apparently, the city and the county continued to operate under the terms of the agreement, although this is also not clear from either the record or the briefs on file here. ¶3 The city of Spokane charged Henry Smith with driving under the influence, and Lawrence Rothwell with physical control of a motor vehicle under the influence under the Spokane Municipal Code in April 2005. Both cases were assigned to Judge Patti Walker. Judge Walker is a district court judge; her department is department no. 4. She was elected in 2002 in a county-wide, not city-wide, election. ¶4 Mr. Rothwell and Mr. Smith moved pretrial to dismiss for lack of jurisdiction. They argued that the Spokane municipal department was created in violation of state statute and was therefore an invalid entity. And Judge Walker had not been properly elected to the position of Spokane municipal court judge. Judge Walker denied both motions and concluded the court had jurisdiction in both cases. Mr. Rothwell and Mr. Smith were convicted as charged. ¶5 Both Mr. Rothwell and Mr. Smith appealed to superior court and again challenged the district court's authority to preside over city cases. The superior court (Judge Rebecca Baker) concluded that the statutory scheme (and particularly RCW 3.46.070 ¶6 We accepted discretionary review. DISCUSSION ¶7 Mr. Rothwell and Mr. Smith contend that Judge Walker was not properly elected to the position of municipal court judge because she was elected in a county-wide election of a district court seat rather than by city voters to a municipal court position, contrary to RCW 3.46.063(1) and RCW 3.46.070. They also argue that the municipal department of the district court was created and maintained in violation of the scheme set out in chapter 3.46 RCW. And it is not therefore a valid department. They argue that Judge Walker (and necessarily all other Spokane county municipal judges) must be elected solely by the residents of the city of Spokane and elected to specific municipal court departments, designated as such on the ballot. ELECTION ¶10 The designation of 3.7 full-time municipal judicial positions then triggers the requirement of RCW 3.46.063(1) that all municipal judges involved with serving that time be elected. And they must be elected by city voters only, voters who are told that they are electing municipal judges. RCW 3.46.070. That was not done here. City of Spokane voters did not elect Judge Walker or any of the other judges designated to serve a term as a municipal department. That designation was made by some other administrative process, again unclear from this record. And the city does not assert otherwise. It contends instead that it substantially complied with the statute because city voters (also citizens of the county) voted for the district court judges and did so in roughly the same proportion as the county voters. The superior court agreed. ¶11 A municipal judge is separate and distinct from a district court judge. RCW 3.46.020, .030, .063, .070. RCW 3.46.070 is clear and unambiguous. Only city voters shall vote for municipal judges designated as such by the county auditor. We must read the statute literally. See Bostain v. Food Express, Inc., ¶12 Judge Walker was not, then, elected to the position of municipal court judge by the citizens of Spokane and had no authority to preside over these trials. In light of this conclusion, we need not decide in this case whether the municipal department was created and maintained in violation of chapter 3.46 RCW. DE FACTO JURISDICTION ¶13 The city argues nonetheless that Judge Walker had de facto authority to act as a judge even assuming that she was not properly elected. Mr. Smith and Mr. Rothwell respond that Judge Walker did not have de facto authority because she was not elected by city voters. ¶15 Here, Judge Walker was neither elected nor appointed by the citizens of the city of Spokane; therefore, she has no color of right and no de facto jurisdiction. In Nollette v. Christianson, HOLDING ¶17 We conclude that Judge Walker did not hold color of right to the office of municipal court judge and was therefore without authority to preside over municipal proceedings and impose judgment. We therefore reverse the convictions. SCHULTHEIS, J., concurs. ¶18 BROWN, J. (concurring in part and dissenting in part)— I agree that the manner for electing Spokane municipal judges is flawed and thus, concur partly in the majority opinion. However, because I would hold the judges acted with de facto authority, I part company with the majority in reversing the convictions of Mr. Smith and Mr. Rothwell. ¶19 In State v. Canady, 116 Wn.2d. 853, 856-57, 809 P.2d 203 (1991), the court discussed the difference between de facto offices and de facto judges. The Canady court noted the applicable rule is found in Higgins v. Salewsky, 17 Wn. App. 207, 212, 562 P.2d 655 (1977). Generally, a de jure office is a precondition for a de facto officer. But an exception exists where the office is created by a flawed legislative act or municipal ordinance " 'and the office is regarded as a de facto office until the act or ordinance is declared invalid.' " Canady, 116 Wn.2d at 857 (quoting State ex rel. Farmer v. Edmonds Mun. Court, 27 Wn. App. 762, 768, 621 P.2d 171 (1980)). Considering the 2004 interlocal agreement and the ordinance under the legislative scheme, an "official attempt was made to 'create' the 'office' in question by act or ordinance." Id. Therefore, I would apply the exception recognized in Canady and affirm the convictions. ¶20 Accordingly, I respectfully dissent in part. Reconsideration denied January 17, 2008.