A case in superior court may be tried by a judge pro tempore only if, among other conditions, the parties or their attorneys of record have consented in writing or in open court to trial before the judge pro tempore. Const. art. IV, ยง 7; RCW 2.08.180; Nat'l Bank of Wash. v. McCrillis, 15 Wash.2d 345, 356, 130 P.2d 901 (1942); State v. Belgarde, 119 Wash.2d 711, 719, 837 P.2d 599 (1992). Consent cannot be waived by defaulting.
The defendant argues that because a pro tempore superior court judge derives his authority based on the consent of the litigants and not from a general election, he is being deprived of a substantial right. To support this argument, the defendant cites National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 130 P.2d 901, 144 A.L.R. 1197 (1942). Const. art. 4, ยง 7 provides in part:
Consent must be given in writing or orally in open court. National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 356, 130 P.2d 901, 144 A.L.R. 1197 (1942); State v. Sain, 34 Wn. App. 553, 663 P.2d 493 (1983). If a party has not consented to the appointment of a judge pro tempore, the appointed pro tempore judge lacks jurisdiction.
ยถ 32 Further, because the de facto doctrine is based upon public policy, it only applies when it serves the public interestโwhen it would be โ โunjust and unreasonable to require every individual doing business with an officer to investigate and determine at his peril the title of such office.โ โ Nat'l Bank of Wash. v. McCrillis, 15 Wash.2d 345, 361, 130 P.2d 901 (1942) (quoting Joseph Jarrett, De Facto Public Officers: The Validity of Their Acts and Their Rights to Compensation, 9 S. Cal. Rev. 189, 218 (1936)).
A case in superior court may be tried by a judge pro tempore only if, among other conditions, the parties or their attorneys of record have consented in writing or in open court to trial before the judge pro tempore. CONST. art. IV, ยง 7; RCW 2.08.180; Nat'l Bank of Wash. v. McCrillis, 15 Wn.2d 345, 356, 130 P.2d 901 (1942); State v. Belgarde, 119 Wn.2d 711, 719, 837 P.2d 599 (1992). Consent cannot be waived by defaulting.
However, our state constitution does not guarantee the right to a trial presided over by an elected superior court judge. Belgarde, 119 Wn.2d at 720-21. Moreover, this court has always made clear the source of the pro tempore's authority is not the electorate, but the consent of the parties. Burton, 105 Wn.2d at 351; National Bank v. McCrillis, 15 Wn.2d 345, 357, 130 P.2d 901, 144 A.L.R. 1197 (1942). [5] That the judge is voted out of office midway during complex litigation is not significant because a superior court judge pro tempore does not derive his or her authority from a general election.
The appointment of a judge pro tempore must be "agreed upon in writing by the parties litigant, or their attorneys of record. . . ." Const. art. 4, ยง 7; RCW 2.08.180; National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 356, 130 P.2d 901, 144 A.L.R. 1197 (1942). Alternatively, a party who consents to the appointment of a judge pro tempore orally in open court cannot later claim the absence of a written consent invalidates the appointment.
A judge pro tempore is appointed to hear one particular case. Nat'l Bank of Wash., Coffman-Dobson Branch v. McCrillis, 15 Wn.2d 345, 357, 130 P.2d 901 (1942). "The essential element to the valid appointment of a judge pro tempore is the consent of the parties."
[3] However, the inapplicability of the 1987 amendment to Belgarde's case is not dispositive of this appeal. The constitutional amendment did not change the basic premise that a valid appointment of a judge pro tempore can be effected by the consent of the parties. Burton v. Ascol, 105 Wn.2d 344, 351, 715 P.2d 110 (1986); National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 357, 130 P.2d 901, 144 A.L.R. 1197 (1942); Mitchell v. Kitsap Cy., 59 Wn. App. 177, 181, 797 P.2d 516 (1990); State v. McNairy, 20 Wn. App. 438, 440, 580 P.2d 650 (1978). Generally, the parties may consent to the appointment of the judge pro tempore either orally in open court or by written stipulation.
We have held that this is a jurisdictional requirement, and failure to satisfy it will result in all of the judge's acts being null and void. See National Bank of Wash. v. McCrillis, 15 Wn.2d 345, 130 P.2d 901, 144 A.L.R. 1197 (1942). Counsel for the City conceded at oral argument that the municipal court rules do not provide for such a jurisdictional agreement.