Spokane County v. State

• Decision Date: 22 October 1998
• Docket Number: No. 64794-1,64794-1
• Citation: 136 Wn.2d 644,966 P.2d 305
• Parties: , 159 L.R.R.M. (BNA) 3051 SPOKANE COUNTY, on the relationship of the County Commissioners and James R. Sweetser, Spokane County Prosecuting Attorney, Respondents, v. The STATE of Washington, the Public Employment Relations Commission, an agency of the State of Washington, Marvin L. Schurke, its Executive Director, and Dustin C. McCreary, Janet L. Gaunt, and Sam Kinville, its Commission Members, Appellants.
• Court: Washington Supreme Court

Page 644

136 Wn.2d 644

966 P.2d 305, 159 L.R.R.M. (BNA) 3051

SPOKANE COUNTY, on the relationship of the County

Commissioners and James R. Sweetser, Spokane

County Prosecuting Attorney, Respondents, v. The STATE of Washington, the Public Employment Relations

Commission, an agency of the State of Washington, Marvin L.

Schurke, its Executive Director, and Dustin C. McCreary,

Janet L. Gaunt, and Sam Kinville, its Commission Members, Appellants.

No. 64794-1.

Supreme Court of Washington,

En Banc.

Argued Feb. 25, 1998.

Decided Oct. 22, 1998.

Jeffrey C. Sullivan, Yakima County Prosecutor, Ronald S. Zirkle, Deputy Yakima County Prosecutor, Yakima, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys

Christine Gregoire, Attorney General, Spencer W. Daniels, Asst. Attorney General, Olympia, Powell & Morris, William J. Powell, Spokane, for Appellants.

James Sweetser, Spokane County Prosecutor, Martin F. Muench, Kathryn Lee, Deputies Spokane County Prosecutor, Spokane, for Respondents.

JOHNSON, Justice.

The central issue presented in this appeal is whether the Public Employment Relations Commission (PERC) has jurisdiction to hear labor related complaints against the Spokane County Deputy Prosecutors (Deputy Prosecutors). The Superior Court held the Deputy Prosecutors do not fall within the statutory definition of "employee" under the Public Employees' Collective Bargaining Act, RCW 41.56(Act) and, thus, are not subject to PERC jurisdiction. PERC obtained direct review of that decision. We affirm.

FACTS

On July 17, 1992, PERC designated Local 1553-PA of the Washington State Council of County and City Employees (Union) as the exclusive bargaining representative of the Deputy Prosecutors. Spokane County and the Union then began to negotiate a collective bargaining agreement for the Deputy Prosecutors. Negotiations never produced an agreement but did result in several unfair labor practice complaints filed with PERC against Spokane County.

Prior to any decision from PERC on any of the unfair labor practice complaints, the Deputy Prosecutors filed a petition against state officers in this court, seeking to prohibit PERC from exercising jurisdiction over them. The Deputy Prosecutors did not join the Union as a defendant and the Union moved to intervene. The case was transferred to the Spokane County Superior Court, where the Deputy Prosecutors moved for summary judgment. PERC moved for dismissal of the case. The Superior Court granted summary judgment for the Deputy Prosecutors and issued a writ of prohibition to PERC, enjoining it from hearing complaints against the Deputy Prosecutors. PERC obtained direct review of the Superior Court's decision.

ANALYSIS

Union Intervention

At the trial court, the Union argued it was entitled to either intervention as a matter of right ¹ or, in the alternative, permissive intervention. The trial court denied the Union's motion. The Union appealed to the Court of Appeals and its appeal was consolidated with this action. In denying the Union's motion to intervene, the trial court stated, in part 1. The actions filed by the Petitioners are solely related to the jurisdiction of the Public Employment Relations Commission over the office of Prosecuting Attorney. The motions to intervene fail to meet the four criteria set forth in Westerman v. Cary, 125 Wash.2d 277, 892 P.2d 1067 (1994), since their interest is that of PERC and the interest of PERC are adequately represented by the Office of Attorney General.

2. The motions by the intervenors claimed only an interest and were silent as to the essential issue of adequate representation by an existing party.

Clerk's Papers at 55.

The denial of a party's motion to intervene as a matter of right will be reversed "only if an error of law has occurred." Westerman v. Cary, 125 Wash.2d 277, 302, 892 P.2d 1067 (1994) (citing 7C Charles A. Wright et al., Federal Practice and Procedure §§ 1902, 1923 (2d ed.1986)). An error of law is "an 'error in applying the law to the facts as pleaded and established.' " Westerman, 125 Wash.2d at 302, 892 P.2d 1067 (citing In re Estate of Jones, 116 Wash. 424, 426, 199 P. 734 (1921) (quoting Morgan v. Williams, 77 Wash. 343, 345, 137 P. 476 (1914))). In Westerman, we set out the following four requirements that must be met before intervention of right can be granted:

(1) timely application for intervention;

(2) the applicant claims an interest which is the subject of action;

(3) the applicant is so situated that the disposition will impair or impede the applicant's ability to protect the interest; and

(4) the applicant's interest is not adequately protected by the existing parties.

Westerman, 125 Wash.2d at 303, 892 P.2d 1067 ("[a]ll four of these requirements must be met for reversal to be justified.").

The Union argues its interests in this case are different from those of PERC because it is the certified bargaining representative and PERC is an administrative agency of the state which "does not purport to represent the interests of the Union, but to carry out and enforce the law." Opening Br. of Appellants (Union) at 11.

The Deputy Prosecutors urge that the Union has a right to represent them only if the deputies fall under PERC jurisdiction. If the Deputy Prosecutors are correct and they are exempted under the Act, the Union has no interest. The Deputy Prosecutors also argue any interest the Union may have is protected by PERC, which is "vigorously defending its position that the employees [deputy prosecutors] are covered under the statute." Opening Br. of Resp'ts at 15. Lastly, the Deputy Prosecutors point out that Union intervention would prejudice the rights of other parties because the only remedy sought is a writ of prohibition which is directed to a state agency and cannot be issued against a private party.

While there is no question of timeliness of the Union's motion to intervene, the other three Westerman criteria have not been met. As the Deputy Prosecutors point out, the ability of the Union to bargain on their behalf exists only if PERC has jurisdiction. While the Union might be affected by the ultimate outcome of this case, its interest is not direct. That PERC adequately represents the Union's position is evidenced by the fact that the Union presents no argument on the issue of PERC's jurisdiction different from the arguments advanced by PERC. We affirm the trial court and hold the Union is not entitled to intervention as a matter of right.

The Union also argues it is entitled to permissive intervention under CR 24(b)(2). ² A trial court's decision on a party's motion for permissive intervention is a matter of discretion and will be reviewed under an abuse of discretion standard. Ford v. Logan, 79 Wash.2d 147, 483 P.2d 1247 (1971). An abuse of discretion occurs only when " ' "no reasonable person would take the position adopted by the trial court." ' " Westerman, 125 Wash.2d at 304, 892 P.2d 1067 (citing In re Dependency of J.H., 117 Wash.2d 460, 472, 815 P.2d 1380 (1991) (quoting Board of Regents v. City of Seattle, 108 Although we hold the Union is not entitled to intervention as a matter of right or permissive intervention, we treat its arguments as amicus for the substantive issues presented in this action.

Wash.2d 545, 557, 741 P.2d 11 (1987) (quoting Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 584, 599 P.2d 1289 (1979)))). While the Union may be affected by the final outcome of our decision here, that affect is limited to the germane issue between PERC and the Deputy Prosecutors. The writ of prohibition issued by the trial court may be issued to only an entity of the state, not a private party. We hold the trial court did not abuse its discretion in denying the Union's motion for permissive intervention.

Exhaustion of Administrative Remedies

PERC next asserts the Deputy Prosecutors are required to exhaust administrative remedies prior to seeking relief from this or any other court. ³ Specifically, PERC urges that the Deputy Prosecutors had a " 'plain, speedy, and adequate remedy at law,' namely, judicial review following the APA proceeding before PERC[.]" Opening Br. of Appellants (PERC) at 8. According to PERC, this precludes issuance of the writ of prohibition. PERC asserts because its decisions are reviewable under the Administrative Procedure Act, RCW 34.05(APA) for lack of jurisdiction, the Deputy Prosecutors should be required to first obtain a decision adverse to them and then appeal from that decision, raising the issue of PERC's jurisdiction. In support of its arguments, PERC relies on RCW 7.16.360, which states: "This chapter [certiorari, mandamus, and prohibition] does not apply to state agency action reviewable under chapter 34.05 RCW or to land use decisions of local jurisdictions reviewable under chapter 36.70C RCW."

The Deputy Prosecutors respond that reversing the trial PERC's argument that the Deputy Prosecutors are required to advance through all the steps of the PERC administrative process prior to judicially challenging PERC's jurisdiction is not well taken.

court's issuance of the writ of prohibition and requiring them to exhaust administrative remedies would be futile because the case would eventually work its way back to this court. They argue that PERC's contention that it has the authority to determine its own jurisdiction was specifically rejected by this court in State ex rel. Graham v. Northshore Sch. Dist. No. 417, 99 Wash.2d 232, 662 P.2d 38 (1983) and Local 2916, IAFF v. Public Employment Relations Comm'n, 128 Wash.2d 375, 907 P.2d 1204 (1995). Lastly, the Deputy Prosecutors rely on the well established legal principle that a challenge to jurisdiction may be made at any time during the proceedings. See In re Saltis, 94 Wash.2d 889, 621 P.2d 716 (1980).

We have held in cases dealing with the jurisdiction of PERC that exhaustion of administrative remedies is not required. In Local 2916, PERC sought judicial review...