City prosecutor expects to run for phantom seat

Howard Delaney wants to run for the 10th judicial seat in Spokane County District Court.

Problem is, say elections officials, the county only has nine district judges. Delaney can’t file for a seat that doesn’t exist.

It does exist, counters Delaney. It was authorized by the Legislature in 2002. It just hasn’t been funded by the Spokane County commissioners, who control the court’s budget.

“It gets a little convoluted,” said Auditor Vicky Dalton, the county’s chief elections officer. “The position has not been funded; that means it doesn’t exist because I haven’t been informed that it has been funded.”

Delaney, who serves as the city of Spokane prosecutor, is seeking a court order requiring Dalton to accept a candidate’s petition from him and anyone else who wants to file for that 10th judicial seat. The other nine are on this fall’s ballot, and candidate filing starts on Monday and ends at 5 p.m. next Friday.

A visiting Superior Court judge will hear his request for a writ of mandamus this morning at the Spokane County Courthouse.

There’s no dispute that the Legislature authorized a 10th district court judgeship four years ago. At the time, commissioners didn’t fund it because the Spokane Valley was considering becoming its own city, and would have the legal right to set up its own municipal court.

After incorporation, however, Spokane Valley opted to use the district court for municipal cases, just as the city of Spokane does. The city of Spokane tried to set up its own municipal court last year, but lost a legal challenge from district court judges, who said they had been illegally left out of the agreement between the city and county.

County Commission Chairman Todd Mielke said an extra district court judge will be part of this fall’s discussions for next year’s budget. The Superior Court, which handles felony cases and major civil trials, has been authorized for another judge that hasn’t been funded, he added.

A new court has as much as $1 million in startup costs for a new courtroom, support staff and the judge, who receives a $122,000 salary mandated by state law. Each district court has an annual cost of about $390,000, Mielke said.

Delaney said the state law is clear in saying Spokane County shall have a minimum of 10 district court judges. In the request for a court order, known as a writ of mandamus, his attorney Scott Staab is citing a 1992 Supreme Court case in which Yakima County was ordered to expand its district court by two judges that were authorized by the Legislature but not funded by county commissioners.

County attorneys will likely argue today that the law has changed since then, with a different process for adding judges that has additional steps beyond legislative approval. One of those steps, Mielke said, is an agreement by the county government to fund the position.

That prevents an illegal “unfunded mandate,” where the state orders a local government to do something without providing the money, he said.

Delaney said that because the county still has the 2007 budget discussions ahead of it, commissioners could figure out a way to pay for a 10th district court seat before the end of the year. If they decide to fund that seat, however, they’ll get to appoint a judge, rather than have the voters pick the new judge.

“The voters are entitled to make the choice,” he said.

Mielke said he’s heard speculation that the commissioners have a favorite for the 10th seat. Some of it centers around the appointment of District Judge Mike Padden, who is retiring this year and not seeking re-election.

But Mielke denied there’s been any discussion of a name linked to that court position, including Padden’s. “It’s never even come up in any discussion I’ve been a part of,” he said.