State high court hears case for county judgeship

OLYMPIA – The lesson here, it seems, is: “Be careful what you ask for.”

Five years after Spokane County won state approval for a new judge’s position but never funded it, a Spokane attorney’s attempt to run for election to the job has landed in the lap of the state’s highest court.

“The law and the (state) constitution didn’t anticipate what’s happened in this case,” said Howard Delaney, who filed suit last July to try to force the county to hold an election for the district court seat. He said he’s worried that the job could be held in limbo indefinitely until it becomes useful as a political appointment.

On Tuesday, the state Supreme Court heard arguments in the case. Delaney is hoping for a quick ruling that would allow him – and any other attorney – to run for the office in November’s general election.

The roots of the case date back five years, when local judges and then-County Commissioner Kate McCaslin went to Olympia to persuade state lawmakers to approve one more district court judge for the county.

Commissioners were unanimous in wanting one, McCaslin told a Senate committee.

“And most importantly,” she said, “I’m here to tell you that we are willing to provide funding for this position as well.”

But that never happened. Although state lawmakers readily agreed to boost Spokane’s district judges from nine to 10, the county has never seen fit to pay for that tenth judge. Instead, the county commissioners in 2002 took a highly unusual vote that “recognized” the additional judgeship but didn’t “formally establish … or fund … the position.”

That irks Delaney, who was appointed Spokane city prosecutor in 2002.

He says he worries that county officials could pull the judgeship out of their pocket after election season to offer it as a political appointment. He noted that two years ago, over the objections of County Commissioner Todd Mielke, Commissioner Mark Richard and then-Commissioner Phil Harris ignored a legal panel’s recommended top-five candidates to appoint a conservative acquaintance to what was then a $118,458-a-year job.

“That was what I was trying to avoid” by forcing an election, Delaney said.

Last year, when he tried to file as a candidate, county election officials wouldn’t let him. There is no tenth judge, they said.

As the clock ticked down to Election Day, Delaney filed suit. In late July, visiting Judge Allen Nielson ruled against him, saying “the County Commission does have the discretion to do what they have done here.”

McCaslin, who is no longer a county commissioner, could not be reached for comment Monday.

But Nielson noted in his oral ruling that at the time of the additional judgeship’s creation, the new city of Spokane Valley was being created. Given that, he said, the commissioners likely had no way to know whether the new city’s court would absorb some of the workload.

“So I can see why they would want to leave their options open at that point,” Nielson said, according to a transcript.

It doesn’t matter, says Delaney. Under the state constitution, the Legislature sets the number of district court judges. And state law now says that Spokane County has 10.

“Ten means 10,” his attorney, Tracy Staab, told the Supreme Court justices Tuesday.

The county says that a new judgeship isn’t real until county officials approve and fund it.

“We have the creation of a position,” county attorney Dan Catt told the high court. “That’s not the same as implementation.”

Adding a 10th district court judge, the county estimates, would cost nearly $1.3 million for a new courtroom, equipment and staff salaries. (When the state’s new salary schedule takes effect in September, district court judges will earn $134,233 a year.)

Some justices on Tuesday sounded worried at the prospect of forcing a county to pay for judges it may not want. Staab said Spokane County could simply ask for the number to be lowered back to nine.

“I think the county can pay for it if it wants to,” she said.