Westerman v. Cary
| Decision Date | 22 November 1994 |
| Docket Number | No. 60383-9,60383-9 |
| Citation | 892 P.2d 1067,125 Wn.2d 277 |
| Court | Washington Supreme Court |
| Parties | Donald L. WESTERMAN, Chief Public Defender, and Spokane County Public Defender's Office, Appellants, v. The Honorable Christine CARY, Spokane County District Court Presiding Judge, and The Clerk of the Spokane County District Court, Respondents. |
Richard Cease, Donald L. Westerman, Chief Deputy, Jay Ames, Joseph Miller, Spokane, for appellant Donald L. Westerman.
Winston & Cashatt, Carl E. Hueber, Seafirst Fin. Center, Spokane, for respondents.
Katherine S. Knox, Cheney, amicus curiae for respondents on behalf of Wash. Defender Ass'n.
L. Diane Emmons, Spokane, for amicus curiae on behalf of Young Women's Christian Ass'n.
This case revolves around the Spokane County District Court's issuance of a general order providing that domestic violence offenders be detained in custody pending their first appearance in court. Under the previous bail schedule provision, such offenders would be eligible for release on bail present by the court. Prior to this court accepting review, the District Court replaced the general order
with a similar order which also provides for detention without bail pending the first court appearance. The parties raise the question of mootness as well as federal and state constitutional issues regarding bail, due process, equal protection, and unreasonable[892 P.2d 1070] seizure. In addition, Prosecutor Donald C. Brockett (Brockett) and the Honorable Christine Cary of the Spokane County District Court (Cary or the District Court) argue issues regarding Brockett's disqualification, the appointment of a special prosecutor, the award of attorney fees to the special prosecutor at public expense, and the denial of Brockett's motion to intervene.
On October 14, 1992, Spokane County's then-presiding District Court Judge, Christine Cary, issued a general order entitled "Domestic Violence Offense--Mandatory Court Appearance--No Bail". 1 The Order provides:
Any person arrested for a crime classified under Section 10.99 of the Revised Code of Washington as Domestic Violence shall be held in jail without bail pending their first appearance.
The Mandatory Court Appearance--No Bail pending a defendant's first appearance shall apply to all offenses listed under Section 10.99 of the Revised Code of Washington irrespective of their classification as a Felony, Gross Misdemeanor, or Misdemeanor.
Clerk's Papers (CP), at 10. By requiring that bail be set at the first appearance, the District Court sought to amend the County's bail schedule and pretrial release procedures to conform with the Washington State Supreme Court's amendment of CrRLJ 3.2. Under the previous procedure, jail personnel were allowed to determine bail according to a present bail schedule and grant release prior to an individualized judicial determination or a preliminary court appearance. The District Court issued the Order as the first of a number of changes intended to bring the court's procedures into conformance with CrRLJ 3.2. The Order does not specify the length of detention; however, CrRLJ 3.2.1(d)(1) requires On October 15, 1992, Prosecutor Brockett advised Sheriff Larry Erickson (Erickson) to disregard the Order because he believed it would violate arrestees' constitutional right to bail and would expose the County to liability. The record suggests that this advice was unsolicited. At a meeting the next day, Brockett repeated this position to several members of the District Court. This advice was contrary to the advice the District Court had received from his office previously. Sheriff Erickson told the judges at the meeting that he would not obey the Order based on Brockett's advice. The District Court then asked Prosecutor Brockett for a brief outlining his concerns with the legality of the Order. Brockett refused, suggesting instead that the District Court write a brief justifying its position to him. At the meeting, the District Court discussed its interest in conforming with CrRLJ 3.2. Brockett said that he believed that CrRLJ 3.2 was unconstitutional and would not defend the Order on that basis. At a meeting on October 21, 1992, the District Court concluded that Prosecutor Brockett's prior representation of Sheriff Erickson "created a conflict of interest which precluded his representation of the District Court". CP, at 400. CP, at 400.
that an accused "detained in jail must be brought before a court of limited jurisdiction as soon as practicable after the detention is commenced, but in any event before the close of business on the next court day". An on-call judge was available under the Order to set bail prior to the preliminary appearance in appropriate cases.
On October 22, 1992, the Spokane County public defender's office filed an emergency application for writ of review and for immediate stay of the Order in superior court. The public defender's office argued that the Order was unconstitutional and was not adopted in accordance with procedures required by the court's own local rules. The On October 23, 1992, the executive committee voted to retain Carl Hueber (Hueber) as independent counsel to defend the court in all matters pertaining to the bail schedule, including, but not limited to, the public defender's suit. Judge Cary wrote to one of the county commissioners and suggested that the cost of such counsel be "taken from the Prosecuting Attorney's budget for conflict cases". CP, at 430-31. Hueber filed a notice of appearance on the District Court's behalf on October 26, 1992. In a letter to Brockett dated October 29, 1992, Judge Cary explained the court's belief that a conflict existed that disabled him and his office from representing the court in this matter under RCW 36.27.030.
Superior Court issued a writ of review and granted a stay that same day.
In his response dated November 2, 1992, Brockett disagreed, stating that he was the only legal adviser for all county government and that his position was the position of the County as a whole: "county government can only be represented, in a legal setting, by the legal position taken by the prosecuting attorney with regard to any particular matter". CP, at 439. In his opinion, those officials who disagree with the prosecutor's position could hire their own counsel, but not at taxpayer expense. He further stated that he did not believe any conflict of interest was involved and that no "disability" existed under RCW 36.27.030. CP, at 439. Hueber and Brockett also exchanged letters on these issues. See CP, at 441-51. On November 3, 1992, Brockett filed a Notice of Appearance on behalf of the District Court. On November 12, 1992, Hueber, on behalf of the District Court, filed a motion to disqualify the prosecuting attorney and to confirm retention of independent counsel at public expense. 2 The Superior Court denied the motion, stating that Hoppe v. King Cy., 95 Wash.2d 332, 622 P.2d 845 (1980) controlled.
The matter then proceeded on the merits. On December 14, 1992, amicus curiae, the Young Women's Christian On December 24, 1992, the Superior Court found that the Order was not unconstitutional on either federal or state grounds. However, the court found that the Order improperly amended Spokane County District Court Rule LCrRLJ 3.2(m), (o) since it had not first been submitted to the county bar association as required by Spokane County District Court Rule LARLJ 2(c). The court set aside the Order.
Association (YWCA), filed a memorandum of authorities in support of the Order. On December 16, 1992, Brockett filed a memorandum of authorities on behalf of the county arguing that the Order was invalid. Representing the District Court, Hueber filed a response in support of the Order the same day.
Hueber filed one motion on December 30, 1992, for an order directing payment of attorney fees by Spokane County and another on January 5, 1993, for a clarification of the Superior Court's decision. Specifically, the District Court questioned whether the bail schedule itself was invalid under the ruling because it had not been formally adopted as a local rule. On January 11, 1993, Judge Donohue gave an oral ruling. He then issued a memorandum decision dated January 29, 1993. Therein the court revised its earlier oral decision regarding Brockett's representation of the District Court, stating that ethically Brockett should have withdrawn and that his failure to do so amounted to being temporarily unable to perform his duties. The Superior Court further stated that the District Court's counsel should be compensated in an amount not to exceed $5,000. The judge gave no reasons for this maximum amount. As for the validity of the bail schedule, the court found that the schedule was not part of the local rules.
On February 18, 1993, Brockett filed a motion for reconsideration of the memorandum decision. The District Court filed a motion to reconsider the amount of the attorney fee award and a motion to compel formal withdrawal of the prosecuting attorney the same day. On March 4, 1993, the court addressed attorney fees stating that it considered all the factors under the Rules of Professional Conduct when On March 19, 1993, Brockett filed a motion to intervene pursuant to CR 24(a)(2) and CR 24(b)(2). CP, at 300-01. On March 26, 1993, the Superior Court denied the motion. That same day, the court also entered a judgment for costs of $2,844.26 and attorney fees of $5,000. The court then entered a final order on March 31, 1993, incorporating all its previous...
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