State v. Cook
| Decision Date | 02 July 1973 |
| Docket Number | No. 2057--42649--I,2057--42649--I |
| Citation | 512 P.2d 744,9 Wn.App. 227 |
| Parties | STATE of Washington, Petitioner, v. Vina S. COOK, Respondent. . 1, Panel Two |
| Court | Washington Court of Appeals |
Christopher T. Bayley, King County Pros. Atty., Frederick L. Yeatts, Deputy Pros. Atty., Seattle, for petitioner.
Lanning, Mahoney & Bryan, Robert S. Bryan, Seattle, for respondent.
The question in this case is whether the trial court erred in ruling that a complaint for a traffic offense against Vina S. Cook should be dismissed because the state was represented during the trial of the cause by a legal intern.
Ms. Cook was arrested and charged in Renton District Court, King County, with driving while under the influence of intoxicating liquor. By a pretrial motion, she challenged the qualifications of Richard F. McDermott, a legal intern employed by the King County Prosecuting Attorney to represent the state. The trial judge reserved ruling upon the motion, heard the case upon its merits, and after being extensively briefed on the question, decided that McDermott was not qualified to serve as counsel for the state and dismissed the complaint. The state then applied to this court for a review by writ of certiorari, which was granted.
The first question to be determined is whether McDermott had the necessary qualifications to represent the state in its prosecution of Ms. Cook. We hold that he did in the absence of an inhibiting statute. The Supreme Court, acting pursuant to its inherent power to determine who may or may not appear as counsel in the courts of this state, State ex rel. Laughlin v. Washington State Bar Ass'n, 26 Wash.2d 914, 176 P.2d 301 (1947); In re Bruen, 102 Wash. 472, 172 P. 1152 (1918), promulgated APR 9, which provides for the certification of law students and others to engage in the limited practice of law. McDermott was so certified and, therefore had the necessary credentials to practice law in the Renton District Court under certain limitations not material to this case.
The next question is whether the prosecuting attorney had the authority to appoint McDermott to represent the state in the trial of the action. We hold that he did not. All criminal actions in which the state is a party are to be prosecuted by the prosecuting attorney, RCW 36.27.020, or by deputies appointed by him. RCW 36.27.040. The legislature, which is charged with the responsibility of providing for the office of prosecuting attorney, Constitution of the State of Washington, art, 11, § 5, has set his qualifications to be that he must be a qualified elector of the county and 'admitted as an attorney and counselor of the courts of this state.' RCW 36.27.010. His deputies must have the same qualifications. RCW 36.27.040. Lawyers who do not meet the statutory requirements may with the permission of the court assist the prosecuting attorney in the trial of a case, State v. Schultz, 145 Wash. 644, 261 P. 385 (1927) but are ineligible to function as prosecuting attorneys. State v. Heaton, 21 Wash. 59, 56 P. 843 (1899). A defendant may waive the lack of qualifications of the lawyer representing the state by failing to object and not showing prejudice. State v. Gibson, 79 Wash.2d 856, 490 P.2d 874 (1971), State v. Storrs, 112 Wash. 675, 192 P. 984, 197 P. 17 (1920).
As a certified legal intern with a limited license to engage in the practice of law, McDermott did not possess the qualifications specified by the legislature for persons representing the state in its courts, and, consequently, the King County Prosecuting Attorney did not have the authority so to employ him.
The state contends that McDermott was not a deputy prosecuting attorney but rather a necessary employee who could perform any act the prosecuting attorney is authorized to perform as provided by RCW 36.16.070. This statute is a general provision for the augmentation of county offices and does not apply because, as has been seen, RCW 36.27.040 specifically provides for deputies who shall have the same powers in all respects as the prosecuting attorney. When a general and specific statute deal with the same subject, the specific statute prevails. State v. Walls, 81 Wash.2d 618, 503 P.2d 1068 (1972).
The state relies upon Eggan v. State, 4 Wash.App. 384, 481 P.2d 571 (1971) in support of its position that it is not necessary for a prosecuting attorney to be present in every criminal case. In Eggan, the action was commenced by the filing of a citizen's complaint. The prosecuting attorney was not notified of the pending proceeding and it was not until the complaining witness had testified that the defendant raised the question of the absence of the prosecutor. Our court, division three, found no prejudice and affirmed the judgment of conviction. The situation in the case before us is far different. Ms. Cook was charged by an official complaint, the prosecuting attorney was fully aware of the proceedings, and objection to the absence of the prosecuting attorney was timely made. 1
Finally, there is the question of whether Ms. Cook has the necessary standing to successfully challenge the use of a legal intern in the state's prosecution against her. We believe that she has. The prosecuting attorney, as a quasi judicial officer, has a duty to see that an accused is given a fair trial because '(t)he state is just as much interested in preserving constitutional requirements in the trial of an accused person as in prosecuting the infraction of the laws.' State v. Stentz, 30 Wash. 134, 140, 70 P. 241, 243 (1902). State v. Montgomery, 56 Wash. 443, 105 P. 1035 (1909). The prosecuting attorney must exercise his independent judgment as to the prosecution or dismissal of a complaint. State v. Heaton, Supra. The legal representation of the state by a particularly qualified person was therefore a distinct advantage, conferred upon Ms. Cook by statute, which was not available to her during the trial.
The judgment of dismissal is affirmed.
For the reasons next stated, I cannot concur in the affirmance of the order of dismissal, especially if the order, as interpreted by the defendant with the apparent acquiescence of the state, is one with prejudice.
The status of legal intern was created by the Supreme Court of Washington by promulgating APR 9 on June 4, 1970, subsequently amended. The provisions of APR 9 pertinent here are described in the margin. 1 The appeal here involves three questions concerning the legal intern: (1) the authority of a legal intern to represent the state in the district court trial of the offense charged below notwithstanding APR 9, subd. D(3); (2) defendant's standing below to raise the issue of claimed lack of authority; and (3) if the legal intern lacks authority and defendant has standing to raise the issue, whether the proper remedy is dismissal, with or without prejudice.
I consider each contention separately. Defendant contends that under the statutes of this state only a prosecuting attorney or his deputy is authorized to represent the state in the trial of a criminal case. RCW 36.27.020(3), (4), (6), 36.27.005, 36.27.040. The state concedes the duty to appear for and represent the state in the trial of criminal cases is included in the statutory duties of the prosecuting attorney or his deputy. It contends, however, the prosecuting attorney is also entitled to the benefits of RCW 36.16.070. That statute, as amended, reads:
In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners. The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each. The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.
A deputy may perform any act which his principal is authorized to perform. The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure.
When the cited statutes dealing with the duties and powers of the prosecuting attorney were enacted, all were included as part of the Laws of 1963, ch. 4, effective February 18, 1963. At that time the status of the legal intern had not been created and there was no occasion for the statutes to deal specifically with the power of the prosecuting attorney or his deputy to employ a legal intern or to determine under what circumstances a legal intern's services might be used. When in 1970 the status of legal intern was created, it was contemplated by APR 9, subd. D(6) that a legal intern could be employed by 'state, county or municipal legal departments.' If so employed, the legal intern would be within the class of 'other necessary employees' required by a county officer 'where the duties . . . are greater than can be performed by the person elected to fill it . . .'
The legal intern, because of the limited nature of his license, could not perform all the duties of the prosecuting attorney or his deputies because they were required to be fully licensed (RCW 36.27.010), whereas a legal intern's license under APR 9 was a limited license. Nevertheless, under APR 9, subd. D(3) a legal intern, although under the direction of the supervising attorney, was permitted to appear without the presence of his supervising attorney in 'cases tried in a trial court from the judgment of which there is a right of trial de novo on appeal . . .' The traffic offense for which defendant was charged is one that may result in a judgment from which there is a right of trial de novo on appeal. RCW 10.10.010; Seattle v. Buerkman, 67 Wash.2d 537, 408 P.2d 258 (1965); State v. Ladiges, 66 Wash.2d 273, 401 P.2d 977 (19...
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