Grant County Prosecuting Att'y v. Jasman ( 2015 )


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  •                                                          Thi~   opinion was flied for record
    at     : ·
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    GRANT COUNTY PROSECUTING                      )
    ATTORNEY,                                     )
    )
    Respondent,                )                 No. 90827-3
    )
    v.                                      )                   EnBanc
    )
    JERRY JASMAN and CRAIG                        )
    MORRISON,                                     )
    )      Filed      JUL 1 6 2015
    Petitioners.               )
    )
    OWENS, J. -      After an incident involving his then-deputy coroner, Grant
    County Coroner Jerry Lee Jasman pleaded guilty to disorderly conduct and resigned
    from office. By statute, Jasman's conviction prohibited him from holding public
    office again. RCW 9.92.120. However, the new Grant County coroner, Craig
    Morrison, quickly hired Jasman as chief deputy coroner and chief investigator. In this
    case, we must decide whether Jasman can hold those positions given that he is
    prohibited from holding public office. Jasman may not hold those positions if they
    are "public officer" positions. Deputies are public officers because deputies are
    Grant County Prosecuting Att 'y v. Jasman
    No. 90827-3
    legally authorized to discharge the duties of public officers (in this case, county
    coroner). Similarly, as chief investigator, Jasman was a public officer to the extent
    that he functioned as a deputy coroner and discharged the duties of county coroner.
    Therefore, we hold that both positions are "public officer" positions and that Jasman
    may not hold either position.
    As a separate issue, we must decide whether Coroner Morrison was entitled to
    a special prosecutor's representation when he intervened as a defendant in this
    lawsuit. By statute and our case law, prosecutors are required to represent county
    officers only when an officer is sued for money damages or when the county or State
    is the real party in interest. RCW 4.96.041(1), (2); Osborn v. Grant County, 
    130 Wash. 2d 615
    , 625, 
    926 P.2d 911
    (1996). In this case, Coroner Morrison was not sued
    for money damages and the State or county was not the real party in interest, so he
    was not entitled to a special prosecutor's representation.
    FACTS
    Jasman was the Grant County coroner, and he resigned from that position after
    he pleaded guilty to disorderly conduct for an incident involving his then-deputy
    coroner.
    After Jasman resigned, Grant County voters elected Morrison as coroner, and
    one of Coroner Morrison's first actions was to hire Jasman as his "deputy and chief
    investigator" based on Jasman's experience and training. Clerk's Papers (CP) at 155.
    2
    Grant County Prosecuting Att 'y v. Jasman
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    Jasman took an oath of office for "the office ofChiefDeputy Coroner." 
    Id. at 161.
    Part of Jasman's duties as deputy coroner involved him signing death certificates.
    Prosecutor D. Angus Lee expressed concern over Coroner Morrison employing
    Jasman as deputy coroner when Jasman was ineligible to hold public office because of
    his conviction. Because of Prosecutor Lee's concern, Coroner Morrison said he
    changed Jasman's title to "Chief Investigator, an at-will employee, rather than
    deputizing him as an appointed official." ld. at 92. However, Jasman did not
    formally resign his deputy position until after Prosecutor Lee filed this quo warranto 1
    action. One of J as man's duties as "Chief Investigator" was "to determine and certify
    the cause and manner of death in cases [the coroner's] office takes jurisdiction over."
    
    Id. Jasman signed
    four death certificates in his capacity as chief investigator.
    Prosecutor Lee contended that the death certificates that J asman signed were legally
    invalid and that Jasman was not authorized by law to sign death certificates.
    Subsequently, Prosecutor Lee filed a quo warranto action against Jasman,
    claiming Jasman "unlawfully exercised the public office of coroner or deputy
    coroner." I d. at 4. Once Prosecutor Lee filed this lawsuit, Jasman resigned his deputy
    position but retained his chief investigator position.
    1
    Quo warranto is Latin for '"by what authority."' BLACK'S LAW DICTIONARY 1447
    (lOth ed. 2014). It is a common law writ that allows someone to challenge a person's
    authority to hold public office. !d.
    3
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    After Prosecutor Lee filed the quo warranto action, Coroner Morrison asked the
    Grant County Board of Commissioners (Board) to indemnify J asman for the attorney
    fees and costs of defending the action. The Board initially agreed, but it reversed its
    decision and refused to indemnify Jasman after receiving legal advice from Prosecutor
    Lee. Because of Prosecutor Lee's actions, Jasman moved to disqualify him from
    representing himself as plaintiff in the quo warranto action, arguing Prosecutor Lee
    had a conflict of interest. Jasman contended that Prosecutor Lee owed a duty of
    independent judgment in prosecuting the quo warranto case and that by advising the
    Board not to indemnify Jasman (who was the defendant in the same case), it created a
    conflict of interest. The trial court granted Jasman's motion, albeit for a different
    reason. The trial court stated it believed Coroner Morrison was the real party in
    interest (though not a necessary party) and that Prosecutor Lee had a duty to advise
    both Coroner Morrison and the Board. The trial court reasoned that it "appears to the
    Court to be a conflict for the Prosecutor, who has an obligation to advise the County
    Coroner, to choose instead to advise the [Board]." !d. at 350.
    Coroner Morrison and J as man moved the trial court to allow Coroner Morrison
    to intervene, and they also moved the trial court to appoint a special prosecutor to
    represent them. They argued that Prosecutor Lee had a statutory duty to represent
    Coroner Morrison because of his position as elected coroner. The trial court granted
    4
    Grant County Prosecuting Att y v. Jasman
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    their motion to allow Coroner Morrison to intervene but denied their motion to
    appoint a special prosecutor.
    Regarding the substance of the quo warranto action, the trial court granted
    Prosecutor Lee's summary judgment motion, prohibiting Jasman from exercising the
    office of Grant County coroner or deputy coroner and enjoining him from signing
    death certificates in any capacity.
    The Court of Appeals affirmed. Lee v. Jasman, 
    183 Wash. App. 27
    , 71-72, 
    332 P.3d 1106
    (2014). Regarding the removal and signing death certificates issue, it held
    that Jasman, acting as deputy, was a "public officer" under the civil forfeiture statute
    (which requires public officers to forfeit office upon conviction for malfeasance in
    office). !d. at 63; RCW 9.92.120. It thus concluded Jasman could not be deputy
    coroner or perform the functions of deputy coroner (like signing death certificates).
    !d. Regarding the special prosecutor issue, the Court of Appeals held that Jasman and
    Morrison were not entitled to have a special prosecutor represent them. !d. at 66-67.
    The court concluded that Prosecutor Lee did not have a duty to represent Coroner
    Morrison under the statute prescribing prosecutors' duties. 2 !d. at 65-66.
    We granted Jasman and Morrison's petition for review. Lee v. Jasman, 
    182 Wash. 2d 1002
    , 
    342 P.3d 327
    (2015).
    2The Court of Appeals also ruled on a judicial estoppel issue and declined to award
    Prosecutor Lee attorney fees and costs. 
    Lee, 183 Wash. App. at 67-72
    . We denied review
    of those issues.
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    ISSUES
    1. Did the trial court properly remove Jasman from his position as deputy
    coroner and enjoin him from signing death certificates?
    2. Was Coroner Morrison entitled to have a special prosecutor represent him
    (and is he thus entitled to attorney fees and costs)?
    ANALYSIS
    1.     The Trial Court Properly Removed Jasman and Enjoined Him from
    Signing Death Certificates Because His Positions Were "Public Officer"
    Positions, and He Was Thus Subject to the Civil Forfeiture Statute
    The parties do not dispute that an elected coroner is a public officer. Rather,
    they dispute whether Jasman, acting as a deputy coroner or a "chief investigator" who
    signed death certificates, was a "public officer" subject to the forfeiture statute. We
    hold that as deputy coroner, Jasman was a "public officer" because he was authorized
    by law to discharge the duties of a public officer-county coroner. Regarding
    J as man's "chief investigator" position, we hold that J asman was a "public officer"
    only to the extent that he functioned as a deputy coroner.
    a. The Forfeiture Statute and the Meaning of "Public Officer"
    Under the Washington Constitution, "[t]he governor and other state and judicial
    officers" are subject to impeachment, and "[a]ll officers not liable to impeachment
    shall be subject to removal for misconduct or malfeasance in office, in such manner as
    may be provided by law." WASH. CONST. art. V, §§ 2, 3. In 1909, the legislature
    6
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    enacted a statute providing for the removal of public officers who are not subject to
    impeachment. That law states, "The conviction of a public officer of any felony or
    malfeasance in office shall entail, in addition to such other penalty as may be
    imposed, the forfeiture of his office, and shall disqualify him from ever afterwards
    holding any public office in this state." LAws OF 1909, ch. 249, § 3 7 (currently
    codified as RCW 9.92.120). The legislature recently amended that statute to include
    gender neutral language; otherwise, it remains the same. LAWS OF 2011, ch. 336, §
    333.
    There is no statutory definition of the term "public officer" in Title 9 RCW.
    Although the legislature originally defined "public officer" to include the deputies,
    clerks, and employees of a public officer, the legislature repealed that broad definition
    in 1975. LAWS OF 1909, ch. 249, § 51(24) (former RCW 9.01.010(24)); LAWS OF
    1975, 1st Ex. Sess., ch. 260. And, although "public officer" is defined in the new
    Criminal Code, Title 9A RCW, that definition is limited to the criminal context.
    RCW 9A.04.110(13); see also RCW 9A.04.090 (providing that the definitions in
    chapter 9A.04 RCW "are applicable to offenses defined by this title or another statute,
    unless this title or such other statute specifically provides otherwise" (emphasis
    added)). Statutory forfeiture of public office is not a crime. State ex rel. Zempel v.
    Twitchell, 
    59 Wash. 2d 419
    , 430, 
    367 P.2d 985
    (1962). Because forfeiture is not a crime
    and because the legislature repealed the definition of "public officer" in Title 9 RCW,
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    we must look to the "common law or ordinary meaning" of the term. State v. Chester,
    
    133 Wash. 2d 15
    , 22,940 P.2d 1374 (1997) ("In the absence of a specific statutory
    definition, words in a statute are given their common law or ordinary meaning.").
    That being said, any interpretation of the ordinary meaning of "public officer" should
    comply with a long-standing rule of construction from our legislature regarding how
    to interpret the term "officer" in the civil context: "Whenever any term indicating an
    officer, is used, it shall be construed, when required, to mean any person authorized
    by law to discharge the duties of such officer." LAWS OF 1854, ch. 54,§ 501, at 221
    (currently codified as RCW 1.16.065).
    We also have no common law definition of "public officer" in the context of
    the forfeiture statute, RCW 9.92.120. Our only cases interpreting "public officer" are
    limited to article XI, section 5 of the Washington Constitution-not statutory
    forfeiture. The petitioners' central argument is based on two cases interpreting article
    XI, section 5: Nelson v. Troy, 
    11 Wash. 435
    , 
    39 P. 974
    (1895), and State ex rei.
    Mcintosh v. Hutchinson, 
    187 Wash. 61
    , 
    59 P.2d 1117
    (1936). The petitioners rely on
    those cases for the proposition that "[a]n employee or a deputy is not an officer."
    Mcintosh, 187 Wash. at 63; Nelson, 11 Wash. at 442. We decline to adopt the
    interpretation of "public officer" from those constitutional cases. In those cases, we
    limited our reasoning to the constitutional context. See Nelson, 11 Wash. at 441-42
    (construing "officer" solely by examining the "scope of the constitutional provision").
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    Grant County Prosecuting Att 'y v. Jasman
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    Further, adopting the petitioners' suggested definition would conflict with the long-
    standing rule of construction from our legislature regarding how to interpret the term
    "officer." RCW 1.16.065 provides, "Whenever any term indicating an officer is used
    it shall be construed, when required, to mean any person authorized by law to
    discharge the duties of such officer." That statute implicates deputies because
    deputies are authorized by statute to "perform any act which his or her principal is
    authorized to perform." RCW 36.16.070. Thus, concluding that deputies are not
    officers would directly conflict with RCW 1.16.065. Finally, adopting the petitioners'
    suggested definition would directly conflict with our recent precedent in which we
    found that a deputy prosecutor was a public officer in a statutory context. Eubanks v.
    Brown, 
    180 Wash. 2d 590
    , 602, 
    327 P.3d 635
    (2014) ("This is a case where a public
    officer is trying to use his office to justify acts outside his designated authority.").
    Because no statute or case directly defines the term "public officer" in the civil
    forfeiture context, we must look to the ordinary meaning of the term. 
    Chester, 133 Wash. 2d at 22
    . In interpreting the ordinary meaning of a word, "[a] nontechnical word
    may be given its dictionary definition." 
    Id. We adopt
    the dictionary definition of
    "public officer" and combine that definition with the long-standing rule of
    construction from our legislature regarding how to interpret the term "officer" in the
    civil context. This definition best captures what the ordinary meaning of "public
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    Grant County Prosecuting Att 'y v. Jasman
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    officer" would have been in 1909 when the legislature enacted the civil forfeiture
    statute.
    In 1909, the term "office" meant "[a] special duty, trust, charge, or position,
    conferred by authority and for a public purpose ; a position of trust or authority ; as,
    an executive or judicial office; a municipal office." WEBSTER'S INTERNATIONAL
    DICTIONARY OF THE ENGLISH LANGUAGE 998 (1899) (emphasis omitted). An
    "officer" was "[o]ne who holds an office; a person lawfully invested with an office."
    !d. Additionally, in 1854, our legislature gave a rule of construction regarding how to
    interpret the term "officer" in the civil context: "Whenever any term indicating an
    officer, is used, it shall be construed, when required, to mean any person authorized
    by law to discharge the duties of such officer." LAWS OF 1854, ch. 54,§ 501, at 221
    (currently codified as RCW 1.16.065). Thus, in 1909 in Washington, a "public
    officer" would have been either (1) someone in a position of public trust conferred by
    some authority or (2) a person authorized by law to discharge the duties of a person in
    a position of public trust.
    As described below, applying that definition to Jasman's deputy coroner
    position, we hold that Jasman was a public officer subject to the forfeiture statute
    because a deputy is authorized by law to discharge the duties of a public officer.
    Applying the definition to Jasman's "chief investigator" position, we hold that Jasman
    was a public officer subject to the forfeiture statute only to the extent that he
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    Grant County Prosecuting Att 'y v. Jasman
    No. 90827-3
    functioned as a deputy coroner (i.e., to the extent that he functioned as a person
    authorized by law to discharge the duties of the county coroner). We clarify,
    however, that Jasman may be otherwise employed by a public officer.
    b. Deputy Coroner Position
    Jasman's position as deputy coroner meets the ordinary meaning of"public
    officer" and the legislature's long-standing rule of construction from the civil
    procedure context. As deputy coroner, Jasman was legally authorized to discharge
    any coroner duties. See RCW 36.16.070 ("A deputy may perform any act which his
    or her principal is authorized to perform."). Since Jasman could perform any duty that
    the coroner could perform, his position meets our legislature's long-standing rule of
    construction regarding the term "officer": "Whenever any term indicating an officer
    is used it shall be construed, when required, to mean any person authorized by law to
    discharge the duties of such officer." RCW 1.16.065. We find this dispositive. We
    hold that the civil forfeiture statute bars Jasman from holding the position of deputy
    coroner because that position authorizes him by law to discharge the duties of a public
    officer-Grant County coroner.
    c. Chief Investigator Position
    Jasman also seeks review of the Court of Appeals' decision to affirm the trial
    court's order enjoining Jasman from signing death certificates as chief investigator.
    We take this opportunity to clarify when someone labeled as an "employee" can be a
    11
    Grant County Prosecuting Att 'y v. Jasman
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    public officer subject to the forfeiture statute. Although "public employees" are
    generally not "public officers" subject to the forfeiture statute, an employee who
    functions as a public officer is subject to the forfeiture statute.
    Public officers can employ both deputies and employees, but only deputies are
    authorized by law to discharge the duties of public officers. See RCW 36.16.070.
    RCW 36.16.070 allows public officers to "employ deputies and other necessary
    employees" if his or her duties "are greater than can be performed by the person
    elected to fill it," but it provides that only "[a] deputy may perform any act which his
    or her principal is authorized to perform." (Emphasis added.) Because employees are
    ordinarily not authorized by law to discharge the duties of public officers, employees
    are not ordinarily officers.
    For example, if a coroner hired an assistant who merely assisted the coroner in
    fulfilling his or her statutory duties, the assistant would likely not be considered a
    "public officer" under the long-standing rule of construction regarding the term
    "officer" in the civil context. Under that rule, a person assisting with work would not
    be someone "authorized by law to discharge the duties of such officer." RCW
    1.16.065.
    However, we will not allow an elected official to circumvent the forfeiture
    statute by allowing an "employee" to wear a "deputy" hat (i.e., we will not allow an
    official to hire an "employee" but give that "employee" the authority to discharge the
    12
    Grant County Prosecuting Att 'y v. Jasman
    No. 90827-3
    official's statutory duties in order to avoid the forfeiture statute). In this instance,
    function trumps form-our analysis is driven by an employee's actual job duties, not
    simply his or her job title. As a practical matter, courts have prevented persons in
    positions of public trust from circumventing or directly undermining relevant legal
    requirements. See, e.g., Missouri v. Seibert, 
    542 U.S. 600
    , 616-17, 
    124 S. Ct. 2601
    ,
    
    159 L. Ed. 2d 643
    (2004) (finding a police officer's custodial interrogation tactic
    improper because it circumvented the warning requirements of Miranda v. Arizona,
    
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966)). In this case, we hold that
    employees who function as public officers are subject to the forfeiture statute.
    Thus, here we hold that when Jasman was the "chief investigator," he was still
    a "public officer" subject to the forfeiture statute to the extent that he functioned as a
    deputy coroner (as a person authorized by law to discharge the duties of county
    coroner). We thus affirm the trial court's and Court of Appeals' rulings enjoining
    Jasman from signing death certificates. 
    Lee, 183 Wash. App. at 65
    . By statute, a
    coroner has the authority to sign death certificates and determine the cause of
    unattended deaths. RCW 70.58.170, .180. One of Jasman's "duties as an investigator
    [was] to determine and certify the cause and manner of death in cases [the coroner's]
    office takes jurisdiction over." CP at 92. Jasman signed four death certificates in his
    capacity as chief investigator. By signing death certificates, Jasman was functioning
    as a coroner-a position from which he was disqualified pursuant to the forfeiture
    13
    Grant County Prosecuting Att 'y v. Jasman
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    statute. Thus, the Court of Appeals correctly affirmed the trial court's order enjoining
    Jasman from signing death certificates. While nothing prevents Coroner Morrison
    from employing Jasman in some capacity to assist Coroner Morrison in performing
    his duties, J as man may not perform the statutory coroner duties himself.
    2.     Coroner Morrison Was Not Entitled To Have a Special Prosecutor
    Defend Him (and Thus He Is Not Entitled to Attorney Fees)
    The petitioners argue that the trial court should have appointed a special
    prosecutor to defend Coroner Morrison when he intervened in the lawsuit. Since
    Coroner Morrison can no longer have a special prosecutor appointed, he seeks to
    recover attorney fees and costs. The Court of Appeals affirmed the trial court's
    decision denying appointment of a special prosecutor. 
    Lee, 183 Wash. App. at 66-67
    .
    We affirm. By statute, prosecutors ordinarily have a duty to only advise county
    officers. RCW 36.27 .020(2). However, prosecutors have a duty to represent county
    officers in suits against them for money damages and suits in which the State or
    county is the real party in interest. RCW 4.96.041(1), (2); 
    Osborn, 130 Wash. 2d at 625
    .
    Here, we hold that the prosecutor did not have a duty to represent Coroner Morrison.
    This lawsuit was a quo warranto action against Jasman, not a suit for money damages
    against Coroner Morrison or a case in which the county was the real party in interest.
    Thus, Coroner Morrison was not entitled to have the trial court appoint a special
    prosecutor to represent him and is not entitled to attorney fees and costs.
    14
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    A court may appoint a special prosecutor for a party only if ( 1) the prosecutor
    has "the authority and the duty to represent that party in the given matter" and (2)
    "some disability ... prevent[s] the prosecutor from fulfilling that duty." 
    Osborn, 130 Wash. 2d at 624-25
    . Here, the parties do not appear to dispute that Prosecutor Lee had a
    disability from representing Coroner Morrison because of a conflict of interest-since
    Prosecutor Lee instituted a quo warranto action against J asman (and Coroner
    Morrison intervened), Prosecutor Lee was directly adverse to the person he would be
    representing-Coroner Morrison. See RPC 1. 7(a)( 1). The parties primarily dispute
    whether Prosecutor Lee had a legal duty to represent Coroner Morrison.
    A prosecutor's duties are provided by RCW 36.27.020. Under that statute,
    prosecutors are required to "[a]ppear for and represent the state, county, and all school
    districts ... in all criminal and civil proceedings in which the state or the county or
    any school district in the county may be a party." RCW 36.27.020(3). They are also
    required to "[b ]e legal adviser to all county and precinct officers and school directors
    in all matters relating to their official business." RCW 36.27 .020(2). Additionally,
    the legislature has provided that a prosecutor (or another private attorney) is required
    to defend a public officer who is sued in his or her official capacity for money
    damages, provided the officer or employee acted in good faith in performing his or
    her official duties. RCW 4.96.041(1), (2).
    15
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    Furthermore, "courts have required prosecutors to represent county officers
    when the county or State, though unnamed in the action, was a real party in interest."
    
    Osborn, 130 Wash. 2d at 625
    . For example, we held that a prosecutor had a duty to
    represent a probation officer in the context of a juvenile court proceeding because
    "[t]he effective and orderly conduct of juvenile hearings is a matter with which the
    state and county are both deeply concerned." In re Welfare ofLewis, 
    51 Wash. 2d 193
    ,
    202, 
    316 P.2d 907
    (1957).
    Here, we hold that Prosecutor Lee did not have a legal duty to represent
    Coroner Morrison because Coroner Morrison was not sued for money damages and
    the State or county was not the real party in interest. This lawsuit was a quo warranto
    action against Jasman, challenging his authority to exercise the office of deputy
    coroner and sign death certificates, not a lawsuit against Coroner Morrison for money
    damages. Additionally, the circumstances of the quo warranto action do not indicate
    that the State or county was the real party in interest. Although the trial court allowed
    Coroner Morrison to intervene in the quo warranto action and found that Coroner
    Morrison was the real party in interest, the trial court also found that Coroner
    Morrison was "not a necessary party," and it never found that the county itself was the
    real party in interest. CP at 354. Without more, this falls short of being "a matter
    with which the state and county are both deeply concerned," such as "[t]he effective
    and orderly conduct of juvenile hearings" in In re 
    Lewis, 51 Wash. 2d at 202
    .
    16
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    CONCLUSION
    We affirm the Court of Appeals. We hold that the forfeiture statute prohibits
    Jasman from being a deputy coroner and from signing death certificates as "chief
    investigator." Additionally, we hold that Coroner Morrison was not entitled to a
    special prosecutor's representation.
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    WE CONCUR:
    18