[No. 79966-1. En Banc.]
Argued June 12, 2007. Decided August 16, 2007.
[1] Mandamus — Elements — Duty To Act — Question of Law or Fact — Review. For purposes of a mandamus action, whether the party subject to the writ is under a statutory duty to act is a question of law that is reviewed de novo. [2] Counties — Judges — New Positions — District Court — Base Number — Positions Created After January 1, 1992 — Formal Approval by County — Necessity. RCW 3.34.010 does not provide sufficient authority, by itself, to establish the base number of district court judges for each county with respect to positions created by the legislature after January 1, 1992. An additional position created under RCW 3.34.010 after January 1, 1992, pursuant to the procedures set forth in RCW 3.34.020 becomes effective only if and when the affected county's legislative authority formally documents its approval of and its agreement to fund the position under RCW 3.34.025. [3] Counties — Judges — New Positions — District Court — Base Number — Positions Created After January 1, 1992 — Formal Approval by County — What Constitutes. For purposes of RCW 3.34.025, under which a district court judge position created by the state legislature under RCW 3.34.010 after January 1, 1992, is not effective until the affected county's legislative authority formally documents its approval of and its agreement to fund the position, formal approval and agreement is not shown by the county legislative authority's adoption of an amendment to the county's district court districting plan to authorize the additional position but with the caveat that it is not affirmatively establishing or funding the position or by testimony before a legislative committee by sitting judges and a county commissioner indicating that the county legislative authority wants the new position to be created and has agreed to pay for it. Nature of Action: An attorney sought a writ of mandamus to compel a county's board of commissioners to establish and fund an additional district court judge position created by the legislature and to compel the county auditor to accept the attorney's declaration of candidacy for the position. Superior Court: The Superior Court for Spokane County, No. 06-2-03111-8, Allen Nielson, J., on August 23, 2006, denied the writ, ruling that the board of commissioners had not established and agreed to fund the additional district court judge position and had no duty to do so. Supreme Court: Holding that the additional district court judge position does not become effective unless and until the board of commissioners elects to formally document its approval of and agreement to fund the position and that the board of commissioners has not yet done so, the court affirms the decision of the trial court denying the writ. Scott R. Staab- (of Anderson & Staab) and Tracy A. Staab- (of Federal Public Defenders), for appellant. Steven J. Tucker-, Prosecuting Attorney, and James P. Emacio- and Dan L. Catt-, Deputies, for respondents. En Banc ¶1 OWENS, J. — Howard Delaney filed a writ of mandamus seeking to compel the Board of Spokane County Commissioners (Board) to fund a 10th district court judge position. Delaney also sought to compel the Spokane County auditor to accept his declaration of candidacy for the position. The trial court denied his writ, holding that the Board retains the discretionary authority to establish and fund the 10th district court judge position in Spokane County. We affirm the trial court's denial of the writ. FACTS ¶2 During the 2002 legislative session, Spokane senators cosponsored an amendment to RCW 3.34.010 increasing the number of full-time district court judges in Spokane County from 9 to 10. The legislature considered this amendment after the Board requested the Supreme Court's assistance in recommending the increase in judge positions. In support of the additional judicial position, the Spokane County sheriff and the prosecuting attorney submitted letters, and two Spokane County District Court judges, the Spokane County District Court administrator, and the chair of the Board testified before the Senate and House judiciary committees. The bill reports summarize their testimony: "Spokane County needs an additional district court judge. . . . The county is willing to pay the costs of the [addition]." "There is a clearly demonstrated need for at least one additional judge in the Spokane County District Court. . . . The county legislative authority wants the new position to be created and has agreed to pay for it. There will be no state expense." S.B. Rep. on S.B. 6596, 57th Leg., Reg. Sess. (Wash. 2002); H.B. Rep. on S.B. 6596, 57th Leg., Reg. Sess. (Wash. 2002). The legislation passed in the Senate (48-0) and the House (93-0) and became effective on June 13, 2002. ¶3 Meanwhile, in March 2002, the Spokane County District Court districting committee (Committee) considered an amendment to the Spokane County District Court districting plan (Plan) increasing the number of district court judges from 9 to 10. Clerk's Papers (CP) at 46-52. In April 2002, the Board held a public hearing regarding the Committee's proposed amendment. The Board adopted a resolution providing that "[t]here shall be ten elected full-time judges in the Spokane County District"; however, the Board included the following clarifying language: "Additionally, the Board notes that by amending the Spokane County District Court Districting Plan to increase the number of full-time District Court Judges from nine (9) to ten (10) in Spokane County, the Board is not establishing the additional tenth position. This position will be established subsequent to the effective date of SB 6596 and at the sole discretion of the Board of County Commissioners." Id. at 50, 58. The Board has not since established or funded the 10th district court judge position. ¶4 In July 2006, Howard Delaney, a licensed attorney and registered voter in Spokane County, inquired about the 10th judicial position with the Spokane County auditor. Id. at 102. The auditor informed Delaney that the 2006 ballot did not include the 10th position because the Board had not established or funded the position. Id. Delaney then filed a writ of mandamus in Spokane County Superior Court seeking to compel the Board to establish and fund the position and the auditor to accept his declaration of candidacy for the 10th position. The court denied the writ, ruling that the Board had not established or agreed to fund the 10th district court judge position and did not have a duty to do so. Delaney appealed. We transferred review from the Court of Appeals. ISSUE ¶5 Is Delaney entitled to a writ of mandamus compelling the Board to fund the 10th district court judge position pursuant to chapter 3.34 RCW? ANALYSIS A. Standard of Review B. Creation of an Additional District Court Judge Position ¶8 RCW 3.34.010 provides that the number of district court judges in Spokane County "shall be" 10. Delaney argues that the unambiguous language of RCW 3.34.010 sets the minimum number of district court judges as 10. For support, he cites State ex rel. Royal v. Board of Yakima County Commissioners, 123 Wn.2d 451, 869 P.2d 56 (1994), where we granted the applicant's writ of mandamus compelling Yakima County to add two additional district court judge positions to satisfy the six positions required by RCW 3.34.010 as of 1992. Id. at 466. In rejecting Yakima County's argument that the base number of required judges was the number currently in office, we held that the base number of required judges was the number listed in RCW 3.34.010. However, we qualified this holding with the recognition that any judicial positions created after January 1, 1992, would be subject to the requirements of RCW 3.34.020 and .025. Id. Thus, under Royal, the "shall be" language of RCW 3.34.010 alone does not establish the minimum number of required judges for positions added after January 1, 1992. ¶9 Rather, an additional position created under RCW 3.34.010 pursuant to the procedures in RCW 3.34.020 is effective only when the local legislative authority satisfies the requirements of RCW 3.34.025. Both parties agree that the legislature properly created the additional judge position in Spokane County pursuant to RCW 3.34.020. We must therefore determine whether the local legislative authority, the Board, satisfied the requirements of RCW 3.34.025. ¶11 The Board did not "document[ ] its approval of the additional position[ ] and its agreement" to fund the position within the meaning of RCW 3.34.025. RCW 3.34.025 requires specific approval and funding from the local legislative authority. Although the Board adopted an amendment to the Plan authorizing an additional position, it specifically and affirmatively did not establish or fund the position. The record is void of any formal "agreement that [the local legislative authority] will pay out of county funds, without reimbursement from the state, the expenses of such additional judicial positions as provided by statute." RCW 3.34.025. In addition, the individuals testifying before the House and Senate judiciary committees do not constitute a "[local] legislative authority" under RCW 3.34.025. The Board has not established and funded the 10th district court judge position pursuant to RCW 3.34.025 and therefore has not created the position. CONCLUSION ¶12 We hold that the addition of any district court judge position to the number of judges listed in RCW 3.34.010 after January 1, 1992, implicates the procedural requirements of RCW 3.34.020 and .025. We further hold that the Board did not create the additional position under RCW 3.34.025. Thus, we affirm the trial court's denial of the writ. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, BRIDGE, CHAMBERS, FAIRHURST, and J.M. JOHNSON, JJ., concur.