Editor,

Prosecutor Greg Banks criticizes my previous column, in which I pointed out that the State Supreme Court misapplied fundamental principles of logic in its interpretation of the statute, RCW 36.32.200, which permits the board of county commissioners to hire outside counsel under the circumstances outlined in the statute. I stand by my previous opinion. The statute states that it is unlawful to hire outside counsel unless there is a contract in writing, for less than two years in duration, and signed by the presiding judge of the county. In the case of the contract whereby the board hired Susan Drummond to assist them in complying with the Growth Management Act, the contract was in writing, it was for less than two years in duration, and it was approved by the presiding judge. It was therefore lawful under the statute.

Mr. Banks cites a different statute as a counterexample. RCW 46.37.420 states that it is unlawful to operate a vehicle upon the public highways unless it is equipped with pneumatic rubber tires. It is obviously true that there are additional requirements in order to operate a vehicle lawfully. But we know this not because of the logical structure of RCW 46.37.420, but because of the many other statutes in chapter 46.37 RCW which describe these other requirements. RCW 46.37.420 must be read in this context.

By contrast, RCW 36.32.200 stands alone. There are no other statutes prescribing any additional requirements for hiring outside counsel. Thus, compliance with the requirements for hiring outside counsel means that the contract is lawful under the statute. The court engrafted an unstated requirement onto the statute in deciding that the statute impliedly required the prosecutor’s consent to hire outside counsel.

Mr. Banks states that the Supreme Court’s interpretation of the statute is beside the point because it held that the board’s use of the statute was unconstitutional. As I said in my previous column, the court’s interpretation of the statute was one of my concerns. This is another.

One of the cardinal principles of jurisprudence is that a court should not decide a case on constitutional grounds if the case can be decided on other grounds, as this case could have been. This principle of judicial restraint is important because when the court decides that a statute is unconstitutional (except as interpreted by the court), the debate is effectively over. The legislature is deprived of the authority to modify the law to accommodate the many important public policy concerns that apply in a given situation. There are many such concerns arising out of the court’s decision in this case.

Another one of my concerns is the court’s reliance on what it calls legislative history to support its interpretation of the statute. It relies on a bill proposed in 1983 that would have established a “new and affirmative” grant of authority for boards of commissioners to hire outside counsel, among other things. This part of the bill did not pass; only minor changes to RCW 36.32.200 were approved. In the past, the court has held that “legislative intent cannot be gleaned from failure to enact a measure.” (See, for example, City of Medina v. Primm, 160 Wn.2d 268, 280 (2007)). Nor will it “speculate as to the reasons for the rejection” of a proposed amendment. (See, for example, Spokane County Health Dist. v. Brockett, 120 Wn.2d 140, 153 (1992).) Thus, the court strayed from its own prior cases in relying on this failed statute. The court did not address any other legislative history of the statute, which has been on the books in one form or another since 1905. RCW 36.32.200 stands as prescribing the requirements for hiring outside counsel.

Finally, Mr. Banks implies that I (and presumably others) should not criticize the court because it might erode public confidence in the judiciary. But judges are elected officials and should expect criticism when they make mistakes. In the present situation, it was important for the public to know that the board did comply with the plain meaning of the statute in hiring Ms. Drummond. And as I point out in this column, it is important for the public to know that the court overstepped its proper bounds in deciding that the statute is unconstitutional except as interpreted by the court.

Alan Hancock,

Island County Superior Court judge