136 Wash. 2d 644 | Wash. | 1998
Lead Opinion
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.
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
*649 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 Wn.2d 277, 892 P.2d 1067 (1994), since their interest is that of PERC and the interest [sic] 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 Wn.2d 277, 302, 892 P.2d 1067 (1994) (citing 7C Charles Alan 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 Wn.2d at 302 (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 Wn.2d at 303 (“[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.
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).
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.
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.
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.
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 of a lower court’s decision that PERC did not have jurisdiction to hear complaints filed by union members against their union. We affirmed the trial court, stating “[determining the extent of that authority [of PERC] is a question of law, which is a power ultimately vested in this court.” Local 2916, 128 Wn.2d at 379. See also Zylstra v. Piva, 85 Wn.2d 743, 745, 539 P.2d 823 (1975) (“failure to exhaust remedies under the bargaining act . . . does not bar [plaintiffs’] access to the courts. . . . [R]emedies prescribed by [bargaining act or contract] would have been futile where the controversy centers on the applicability of the act[.]”).
More illustrative of the issue is our decision in Washington State Bar Ass’n v. State, 125 Wn.2d 901, 890 P.2d 1047
Because this case involves PERC’s jurisdiction, we hold the Deputy Prosecutors are not required to exhaust PERC administrative remedies prior to seeking relief from this court. We, therefore, address the merits of the jurisdiction issue raised.
Statutory Definition of “Employee”
PERC asserts the trial court erred in concluding the Deputy Prosecutors are exempt from the Act and, thus, are excluded from PERC’s jurisdiction. The Act applies to:
any county or municipal corporation, or any political subdivision of the state of Washington, including district courts and superior courts, except as otherwise provided .... The Washington state patrol shall be considered a public employer of state patrol officers appointed under RCW 43.43.020. The Washington state bar association shall be considered a public employer of its employees.
RCW 41.56.020.
In State Bar Ass’n, we held that portion of RCW 41.56.020 declaring the Bar Association to be a “public employer” was unconstitutional because it conflicted with a court rule, violating the separation of powers doctrine. State Bar Ass’n, 125 Wn.2d at 902.
Critical to the analysis and outcome of this issue is
PERC argues the Deputy Prosecutors included in the bargaining unit do not fall within the exception in RCW 41.56.030(2)(b) because “[t]hey [deputy prosecutors] are not appointed for specified terms.” Opening Br. of Appellants (PERC) at 31. PERC further asserts that exempting the Deputy Prosecutors would result in other public employees who are currently covered by collective bargaining agreements also being excluded from the coverage of the Act. That, according to PERC, would be “absurd” and “totally at odds with the purpose of enacting the statute [RCW 41.56].” Id. at 33.
The Deputy Prosecutors assert they are appointed to office pursuant to statute, ordinance or resolution, specifically RCW 36.27.040, which provides authority for the elected prosecuting attorney to appoint deputies. RCW 36.27.040 states, in pertinent part:
The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor’s office .... The prosecuting attorney shall be responsible for the acts of his deputies and may revoke appointments at will.
The Deputy Prosecutors assert that because the Legislature “spelled out” that they serve “at will” and are to be “appointed,” rather than simply employed, the Legislature intended to include them within the exception in RCW 41.56.030(2)(b).
Deputy prosecutors are undeniably appointed. RCW 36.27.040. The issue is whether they are appointed for a “specified term of office.” We hold that they are.
Deputy prosecutors are appointed for specified terms of office because their terms coincide with the elected prosecutor’s term. Unless a deputy’s appointment is revoked, the term of office for a deputy prosecutor ends when the term of the elected prosecutor ends. Once hired, deputy prosecutors are not entitled to remain deputy prosecutors should a new prosecutor become elected.
We addressed a similar issue in State ex rel. Day v. King County, 50 Wn.2d 427, 312 P.2d 637 (1957). That case involved a mandamus proceeding to compel a newly elected King County sheriff to appoint the plaintiffs as deputies. Similar to RCW 36.27.040, which provides elected prosecutors with authority to appoint deputies, a statute authorized county sheriffs to appoint deputies and revoke such appointments at will. We stated in plain and intelligible language that “[t]he term of a deputy sheriff expires with the term of the sheriff who appointed him.” State ex rel. Day, 50 Wn.2d at 428 n.1 (emphasis added). We find State ex rel. Day instructive on the issue.
Once a prosecutor is elected, he or she has the authority to “clean house” and appoint an entire new staff of deputies. That ability is an integral facet and function of the prosecutor’s office. Elected prosecutors, in order to efficiently and effectively carry out the auspices of their offices, must have confidence in their deputies. In that regard, a deputy prosecutor’s appointment terminates at the end of the term of the elected prosecutor. RCW 36.27.040 specifically gives that power to elected prosecutors. Were that not the case, newly elected prosecutors would not and could not restaff their offices.
The term of office for a deputy prosecutor appointed under RCW 36.27.040 coincides with the term of the elected prosecutor and is, thus, a “specified term of office.” As such, the Deputy Prosecutors fit the exception found in RCW 41.56.030(2)(b), are not “public employees,” and the Act does not apply.
CONCLUSION
We affirm the trial court’s issuance of a writ of prohibition to PERC, preventing it from exercising jurisdiction over the Deputy Prosecutors. We do so because the Deputy Prosecutors fall within the statutory exemption found in the definition of “public employee” under RCW 41.56.030(2)(b). Because we determine the Deputy Prosecutors qualify under the statutory exception in RCW 41.56.030(2)(b), we decline to address the Deputy Prosecutors’ arguments under RCW 41.56.030(2)(c) and the separation of powers doctrine.
Dolliver, Smith, Guy, and Sanders, JJ., concur.
CR 24(a)(2) provides a party with intervention of right “when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
CR 24(b)(2) provides that anyone is entitled to permissive intervention “[w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.”
The arguments presented by the Union on this issue are the same as those it presents in Spokane County v. State, 136 Wn.2d 663, 966 P.2d 314 (1998) (District Court Judges), the companion case to this case.
It has been asserted that Zylstra is inapplicable because the Administrative Procedure Act was not then in existence. As we noted in our opinion, however, RCW 41.56, at that time, contained administrative remedies significantly similar to those now provided by the APA. See RCW 41.56.125, .160, .165.
Dissenting Opinion
(dissenting) — I agree with Justice Alexan
The majority reasons that PERC may not consider questions of jurisdiction because the power to determine agency jurisdiction is ultimately vested in this court. Majority at 652 (citing Local 2916, IAFF v. Public Employment Relations Comm’n, 128 Wn.2d 375, 379, 907 P.2d 1204 (1995)). Yet, the court’s role as the ultimate arbiter of the scope of agency authority only reinforces the notion that PERC should make the initial determination. The Administrative Procedure Act, RCW 34.05 (APA), expressly contemplates that judicial review may be sought to resolve questions of agency jurisdiction. RCW 34.05.570(3)(b). Indeed, in Local 2916 the jurisdictional challenges were first brought before PERC hearing examiners, upheld by PERC on review, and appealed to the superior court before ultimate resolution by this court. Local 2916, 128 Wn.2d at 378-79. I am unable to follow the majority’s reasoning that a case in which administrative remedies were exhausted somehow stands for the proposition that failure to exhaust is not required.
The majority also erroneously relies on Zylstra v. Piva, 85 Wn.2d 743, 539 P.2d 823 (1975). In Zylstra, juvenile court employees challenged the applicability of the Public Employees’ Collective Bargaining Act, RCW 41.56. The court held that the plaintiffs’ failure to exhaust administra
Lastly, the majority cites to Washington State Bar Ass’n v. State, 125 Wn.2d 901, 890 P.2d 1047 (1995) in which we considered a challenge to PERC jurisdiction which was brought directly before this court. At no point does that opinion address exhaustion. It is quite a leap to suggest that this court’s failure to raise the issue sua sponte is tantamount to a “holding” on the matter.
We have never held that exhaustion of administrative remedies may be excused for challenges to PERC jurisdiction. In fact, the APA resolves the exhaustion question in this case. RCW 34.05.510 provides that, subject to exceptions not applicable here, chapter 34.05 “establishes the exclusive means of judicial review of agency action . . . .” According to RCW 34.05.534, “[a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies . . . .” Challenges to PERC jurisdiction are not among the few exemptions to this requirement. See id. Unless and until the majority is able to demonstrate the applicability of one of the statutory exceptions to the exhaustion requirement, we should not entertain the challenge to PERC’s exercise of jurisdiction in this matter.
Dissenting Opinion
(dissenting) — Although I agree with the majority that the trial court did not err in denying the Union’s motion to intervene and in refusing to require the deputy prosecutors to exhaust administrative remedies, I disagree with its more significant conclusion that deputy prosecutors are exempt from the Public Employees’ Collective Bargaining Act (Act).
As the majority points out, the central issue before us is
In holding that the deputy prosecutors fall within the exception, the majority relies on RCW 36.27.040, which is the statute that authorizes the elected prosecuting attorney to appoint deputies. It provides:
The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor’s office .... The prosecuting attorney shall be responsible for the acts of his deputies and may revoke appointments at will.
Despite the language that a prosecutor may revoke the appointment of a deputy “at will,” the majority makes a major leap to a conclusion that deputies are appointed for a “ ‘specified term of office.’ ” Majority op. at 655. What, I ask, is the specified term of office of a person who serves entirely at the pleasure of the appointing authority—is it one day or the entire term of office of the appointing authority? The answer to the question is that it depends on the judgment of the appointing person. The employment relationship, in short, is a classic at will employment relationship and cannot by any stretch be considered employment for the “specified term of office” referred to in RCW 41.56.030(2)(b).
It is readily apparent that the exception does not include deputy prosecutors and was meant, instead, to apply to persons who are appointed to boards or commissions by the executive head or body of a public employer. This would include, for example, persons appointed as regents of our state’s universities (see RCW 28B.20.100 which provides for six-year terms for regents of the University of Washington) or persons appointed to six-year terms on the Fish and Wildlife, Transportation or Gambling Commissions. RCW
Madsen, J., concurs with Alexander, J.
Dissenting Opinion
(dissenting) — I agree with Justice Alexander’s excellent analysis of the employment status of the deputy prosecutors in his dissenting opinion; they are classically at-will employees of the Spokane County Prosecutor during the Prosecutor’s term of office. The deputies are subject to the jurisdiction of the Public Employment Relations Commission (PERC).
I dissent as well, but separately, to indicate I disagree with the majority opinion regarding the questions of the Union’s motion to intervene and the exhaustion of administrative remedies question.
First, with respect to intervention, the Union here was entitled to intervene. Plainly, the Union that has long represented the deputy prosecutors has a significant interest in the outcome of the principal litigation involving PERC jurisdiction. While PERC was represented with considerable skill by the Office of the Attorney General, the Union had a direct interest in the outcome of the case with a distinct historical and present perspective on the jurisdictional controversy that would have been of assistance to the trial court in this matter.
We have liberally construed the right to intervene under CR 24. In Dioxin/Organochlorine Ctr. v. Department of Ecology, 119 Wn.2d 761, 837 P.2d 1007 (1992), we held a trade association could intervene as a matter of right under CR 24 to represent the interests of its members, stating:
*661 At issue here is whether NWPPA [Northwest Pulp and Paper Association] has a legally protected interest in the subject of this action. NWPPA is a nonprofit trade association representing pulp, paper, and pulping chemical industries in Washington and other Northwest states. Because the mills whose permits are being challenged are members of NWPPA, the association contends that the trial court properly allowed it to intervene in order to protect its members’ rights. In argument before this court, counsel for NWPPA stated that all the holders of the challenged permits were members of the association. This is a sufficient basis for allowing intervention by the association.
Dioxin/Organochlorine Ctr., 119 Wn.2d at 779 (footnotes omitted). I can discern no principled distinction between allowing a trade association to intervene as a matter of right to represent the interests of its members and allowing a union to intervene as a matter of right to represent the interests of its members in an administrative proceeding. I would hold the trial court abused its discretion in denying the Union the opportunity to intervene in this action.
With respect to the second issue, the majority holds the trial court had authority to issue a writ of prohibition in this case notwithstanding the statutory requirement that parties pursue review pursuant to Washington’s Administrative Procedure Act (APA), RCW 34.05.
The majority acknowledges, but then ignores, the specific direction of RCW 7.16.360 which states:
This chapter[5 ] 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.
Plainly, the Legislature indicated that special statutory proceedings for writs of certiorari, mandamus, or prohibition were foreclosed where judicial review existed pursuant to the APA, RCW 34.05. The majority recites a number of cases that essentially ignored the statute. To the extent-
The majority’s treatment of the writ of prohibition continues our unfortunate trends
RCW 7.16.360 is controlling and entirely dispositive. The writ of prohibition in this case did not lie because it could not lie. We are not free to disregard the Legislature’s direction on such a subject, absent a determination the statute is inapplicable or unconstitutional. The majority has made neither determination with respect to RCW 7.16.360. I would hold the trial court was without statutory authority to issue the writ of prohibition in this case.
In summary, I believe the Union has stated an adequate basis for intervention under CR 24. I further believe the writ of prohibition did not lie in light of the specific statutory direction of RCW 7.16.360 requiring the parties challenging state agency actions to pursue their remedies through the APA. If we get to the merits of the controversy, however, I agree wholeheartedly with Justice Alexander’s analysis that the deputy prosecutors here were at-will em
RCW 7.16 relates to certiorari, mandamus, and prohibition.
See Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288, 949 P.2d 370 (1998) (constitutional writ).
