By ALAN HANCOCK

With all due respect, the State Supreme Court’s decision in State ex rel. Banks v. Drummond is problematic. One of my concerns is that the court misapplied fundamental rules of logic in its interpretation of the statute in question, RCW 36.32.200. Contrary to the court’s decision, the board did, in fact, comply with the plain terms of the statute, which states:

Special attorneys, employment of. It shall be unlawful for a county legislative authority to employ or contract with any attorney or counsel to perform any duty which any prosecuting attorney is authorized or required by law to perform, unless the contract or employment of such attorney or counsel has been first reduced to writing and approved by the presiding superior court judge of the county in writing endorsed thereon. This section shall not prohibit the appointment of deputy prosecuting attorneys in the manner provided by law.

Any contract written pursuant to this section shall be limited to two years in duration. (Emphasis added.)

In interpreting the statute, the court states:

The structure of RCW 36.32.200 is “if P (procedures are not followed), then Q (contract is unlawful).” It does not follow that “if not P (procedures are followed), then not Q (contract is lawful).” In sum, a more accurate restatement of RCW 36.32.200 would be: “When the board can retain special counsel, its contract to do so must be in writing, be approved by the presiding superior court judge, and last no longer than two years.” The board’s authority to contract must stem from an independent source.

The court is wrong. The statute uses the word “unless.” This word means “except under the circumstances that” or “but that.” In logic, the word “unless” means “or,” in the disjunctive sense. In other words, it means that one or the other, but not both, of the circumstances mentioned is true.

Thus, the statute means that it is unlawful for the county legislative authority to contract with an attorney to perform any duty which the prosecuting attorney is authorized or required to perform except under the circumstances that the contract is in writing, is approved by the presiding judge, and is not more than two years in duration.

Consider the following statement: I will meet you at 8 p.m. unless my bus is late. The plain meaning of this statement is that if my bus is late, I will not meet you at 8 p.m. On the other hand, if my bus is not late, I will meet you at 8 p.m.

Applying this same basic logic to RCW 36.32.200, where the contract to employ outside counsel is in writing, approved by the presiding judge, and is not more than two years in duration — that is, the second part of the disjunctive statement is true — it is not unlawful for the county legislative authority to contract with outside counsel — that is, the first part of the disjunctive statement is not true.

Regrettably, the court interpreted the statute as a conditional statement — that is, an “if, then” statement — as opposed to its proper interpretation as a disjunctive statement — that is, an “either, or” statement. This violated elementary principles of logic, and resulted in an erroneous ruling that the board did not comply with the statute.

Editor’s note: Alan Hancock is an Island County Superior Court Judge.