City of Spokane v. Rothwell

Brown, J.

¶18 (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.

Review granted at 164 Wn.2d 1008 (2008).