Aimed squarely at the lawsuit between the Grays Harbor Superior Court judges and the county commissioners, which have cost taxpayers a combined $628,000, the state House on Monday approved legislation that would take away the judges’ right to have the state Attorney General’s Office represent them in court.
From the beginning, the judges have been represented by Special Attorney General Scott Missall and his bills have been paid by the state. The county has its own Special Deputy Prosecutor, Tom Fitzpatrick, and his bills are paid by the county.
Should the legislation be approved by the state Senate, the question becomes, who would pay for the judges’ legal fees in the future? Most likely, it would either have to come out of their own pockets or be borne by the county.
“This bill is a response to a situation, which in my opinion is outrageous, which has gone on in Grays Harbor County in which a $70,000 dispute has turned into a $700,000 legal bill for outside counsel charged to the taxpayers and that is not a good way to decide appropriation amounts,” state Rep. Jamie Pederson, D-Seattle, said on the floor of the House on Monday. “It is a broader principle than that. I think we have a lot of questions that, if allowed to continue, this is a precedent that could lead to more and more appropriation decisions being made in the courts and one we ought to squash.”
Missall said he had heard about the legislation, but needed more information before he could comment.
Ironically, the legislation was approved just hours into a marathon mediation session in Montesano between the judges and the commissioners. Despite starting at 9 Monday morning and going until about 6 p.m. — only breaking for lunch and a 30-minute afternoon meeting — no agreements were reached.
The judges have sued the county over budget cuts from 2012. The cuts have since been restored, but the issues also focus on courthouse security and whether the court needs a third courtroom. Plus, the commissioners cut the court budgets again in 2013, and even though that’s not part of the present lawsuit, the suit could be amended to include that aspect.
The commissioners remained in their conference room at the County Administration Building while the judges remained at the courthouse. A retired judge, who works for Seattle-based Judicial Arbitration and Mediation Service, shuttled between the two venues as he tried to work out a deal between the parties.
The commissioners were officially in a closed-door executive session throughout the day.
County Commissioner Herb Welch said he still hopes a deal can be struck that will end the lawsuit the judges started, now stretching into the 16th month.
Asked how things were going at about 2:30 p.m., Welch said, “You know what? And this is a really, really honest answer. I don’t know.”
“That’s a politician talking,” Commissioner Frank Gordon said with a laugh.
“Well, you know what, it’s an honest politician,” Welch said. “I would like to think it’s going into a positive direction, but I’ve thought that before. I’m going to remain positive.”
Superior Court Judge Dave Edwards said last week that the judges have offered their best settlement to the commissioners and says the ball is in their court as to whether to accept the terms.
Although the mediation ended without resolution, both parties said Tuesday that another mediation session is possible.
The last time a mediator was brought in was June of 2012. The session lasted all day and into the evening hours, but nothing was settled. The lawsuit, instead, intensified with two separate attempts by the county commissioners to take the matter to the state Supreme Court. The court rejected both efforts.
The lawsuit has been on pause for the past four months, at the request of both parties. But if both sides can’t settle this soon, everything heads back to Thurston County Superior Court.
Members of the state House of Representatives aren’t waiting for the lawsuit to finish. On Monday, the state House approved a measure to take away the pocketbook given to the judges to pay for their lawsuit on an 85-10 vote.
A staff report for House Bill 2024 states that if it were enacted into law, “The Attorney General is not required to institute or prosecute actions or proceedings on behalf of state officers against the state or a county when the cause of action is related to sufficiency or level of fiscal appropriation. The Attorney General’s duty to prosecute these cases, including cases currently in litigation, ends after the immediate effective date of this bill.”
State Reps. Kevin Van De Wege, D-Sequim; Brian Blake, D-Aberdeen; and Dean Takko, D-Longview, all voted against it. State Rep. Steve Tharinger, D-Sequim, a former Clallam County Commissioner, voted for it.
Pedersen said the legislation stands for a “very simple but basic constitutional premise in our democracy, which is that decisions about appropriations ought to be made in the legislative branch.”
State Rep. Jay Rodne, R-North Bend, said the House was crafting good policy to have it apply to all statewide elected officials.
“It’s a question of protecting the fiscal resources of the taxpaper,” Rodne said on the House floor.
No one spoke against the measure on the House floor.
Blake said the legislation “came out of the blue” for him, as it wasn’t something he thought would end up on the House floor for a vote.
“I voted against it and I struggled with how I was going to vote on this one,” Blake said. “But, you know, this is only the second time since statehood that judges have sued their county. The last time was over candles and feed for horses.”
Van De Wege noted that the legislation doesn’t just focus on judges, but on all state officials.
“The state puts a lot of funding into the court system, although I wish it were more,” Van Dege said. “In almost every circumstance these issues over financing works out. In Grays Harbor, it’s always worked out before without lawsuits and in the future it will get worked out without lawsuits. I wish this wouldn’t have passed but I don’t think this gives the upperhand to any one group.”
Tharinger said that in his experience as a county commissioner, “There’s always tension between the legislative branch and judicial branch over budgeting. What I like about this bill is it clarifies that the legislative body has control of the purse strings. It was more about those separation of powers issues than the specific Grays Harbor case. Obviously, if there’s no fiscal risk for people to pursue a legal avenue then that makes it more challenging to negotiate budgets or the criminal budget system and I think that’s the broader public policy at work here.”
There’s a good bet that the legislation could make it through the Senate. Senate Bill 5860, which focuses specifically on superior court judges no longer receiving representation from the state Attorney General’s Office, was approved by the entire Senate on a 47-2 vote back in March. During that vote, state Sens. Brian Hatfield, D-Raymond, and Jim Hargrove, D-Hoquiam, voted for the bill. The only reason it didn’t make it through the House was because state representatives wanted to expand the legislation to include all state officials, not just judges.