The board complied with the actual terms of the statute


Prosecutor Greg Banks criticizes my column in which I point out that the Supreme Court misinterpreted RCW 36.32.200, which permits the board of county commissioners to hire outside counsel under certain circumstances. I stand by my previous opinion. The statute states that it is unlawful to hire outside counsel unless there is a written contract for less than two years signed by the presiding superior court judge. In the case of the board’s contract with Susan Drummond, these requirements were met. It was therefore lawful under the statute.

Mr. Banks states that the court’s statutory interpretation is beside the point because it held that the board’s use of the statute was unconstitutional. This is another one of my concerns.

The court has traditionally declined to decide a case on constitutional grounds if it can be decided on other grounds, as this case could have been. This is an important rule because if a court holds a statute unconstitutional, the legislature cannot modify the law to accommodate important policy concerns. There are many such concerns arising out of the court’s decision in this case.

In support of the court’s interpretation of the statute, Mr. Banks cites another statute which states that it is unlawful to operate a vehicle unless it is equipped with proper tires. Obviously there are additional requirements in order to operate a vehicle lawfully. But we know this not because of the logical structure of this statute, but because of the other statutes which describe these requirements.

By contrast, RCW 36.32.200 stands alone. There are no other statutes prescribing additional requirements for hiring outside counsel. Rather, the court engrafted an unstated requirement onto the statute in deciding that the statute requires the prosecutor’s consent to hire outside counsel. The board complied with the actual terms of the statute.


Island County Superior Court judge

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