Opinion
No. 56868-0-I.
December 18, 2006.
Appeal from judgments of the Superior Court for King County, No. 05-2-24567-1, Dean Scott Lum, J., entered August 8 and 23, 2005.
Counsel for Appellant(s) David Allen, Allen Hansen Maybrown PS, Seattle, WA, 98101-4105.
Todd Maybrown, Allen Hansen Maybrown PS, Seattle, WA, 98101-4105.
Counsel for Respondent(s) David James Eldred, King Co Admin Bldg, Seattle, WA, 98104-2316.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Coleman and Grosse, JJ.
King County District Court Judge Mary Ann Ottinger appeals from the order denying her petition for a writ of mandamus to compel King County to fund her legal representation in a proceeding before the Commission on Judicial Conduct. Judge Ottinger also appeals from the trial court's order denying her subsequent CR 60(b)(3) motion. Finding no error, we affirm both orders.
FACTS
On June 10, 2005, the Commission on Judicial Conduct (CJC) filed charges against Judge Ottinger, alleging that she had violated various judicial canons of ethics.
On June 17, 2005, Judge Ottinger, through counsel, served Sally Bagshaw, chief civil deputy prosecuting attorney for King County, with a request that King County pay for Judge Ottinger's legal representation and costs in the CJC proceeding. This request was based upon King County Code (KCC) 4.13.010 and .020.
KCC 4.13.010 provides:
[T]he county shall provide legal representation and indemnification to protect county officers, employees, authorized agents and their marital communities from personal liability for alleged violations of civil or criminal law resulting from or based upon alleged acts or omissions of the officer, employee or authorized agent.
KCC 4.13.020(B) provides that "any and all questions" regarding whether a county employee should have the benefit of legal representation at county expense in a given matter shall be resolved by the chief civil deputy prosecuting attorney.
On July 22, 2005, Judge Ottinger received a letter from Bagshaw, dated July 21, 2005, denying Judge Ottinger's request. The letter explained the basis for the denial as follows:
[T]he disciplinary action brought by the Commission on Judicial Conduct does not expose Judge Ottinger to "personal liability for alleged violations of civil or criminal law." Rather, the CJC may impose a variety of disciplinary sanctions, including admonition, reprimand, and censure. Because we view the disciplinary action as distinct from a third party action that could result in personal liability, this office has concluded that the County is not required to provide legal representation nor indemnify Judge Ottinger for attorney's fees she incurred without this office's advance consent.
On July 26, 2005, Judge Ottinger filed a petition and application for a writ of mandamus in the King County Superior Court. By an order dated August 8, 2005, the trial court denied Judge Ottinger's petition for a writ of mandamus.
Following the entry of the trial court's order denying the writ, Judge Ottinger brought a motion pursuant to CR 60(b)(3) seeking to introduce additional evidence concerning the King County prosecuting attorney's office's practice of representing deputy prosecutors in Washington State Bar Association (WSBA) disciplinary hearings, as well as evidence concerning the prosecuting attorney's office's representation of King County District Court Presiding Judge Corinna Harn and court manager Carol Jones as witnesses in Judge Ottinger's disciplinary proceeding before the CJC. The trial court allowed Judge Ottinger time to file a public disclosure request and to depose Bagshaw in order to develop evidence in support of the CR 60(b)(3) motion.
CR 60 provides, in relevant part: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding [based upon] . . . [n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)."
In support of the CR 60(b)(3) motion, Judge Ottinger presented Bagshaw's responses to the public disclosure request, listing 85 occasions between 1997 and 2005 where King County deputy prosecutors were represented by other prosecutors or by private counsel paid for by King County. Judge Ottinger also presented Bagshaw's deposition testimony. This testimony indicated that at the time Bagshaw wrote her July 21, 2005 letter, she was aware that the civil division of the prosecuting attorney's office represented deputy prosecutors in WSBA disciplinary matters. When asked to explain the legal justification for providing representation to deputy prosecutors involved in WSBA grievances and not to judges involved in CJC complaints, Bagshaw stated that the basis was not a specific King County code provision but, rather, that it was an "unwritten" policy in her office.
The deposition also revealed that Bagshaw's office represented Judge Harn and Ms. Jones as witnesses in Judge Ottinger's disciplinary proceeding before the CJC. When Bagshaw was asked by what authority her office represented Judge Harn and Ms. Jones, she replied that it is the prosecuting attorney's office's policy to provide representation where there is "live litigation and the county is the defendant." However, Bagshaw agreed that in providing counsel for Judge Harn and Ms. Jones, there was, in fact, no "live litigation" to which the county was a party. She stated that she could not explain why her office was representing Judge Harn and Ms. Jones.
The trial court denied Judge Ottinger's CR 60(b)(3) motion, ruling that the evidence concerning the prosecuting attorney's office's representation of witnesses in the CJC proceeding involving Judge Ottinger and the evidence concerning the prosecuting attorney's office representing its attorneys in WSBA disciplinary matters was not "newly discovered evidence."
DISCUSSION Writ of Mandamus
We engage in de novo review of a superior court decision on a petition for a writ of mandamus. Land Title of Walla Walla, Inc. v. Martin, 117 Wn. App. 286, 289, 70 P.3d 978 (2003). The petitioner must satisfy three elements before a writ of mandamus will issue. First, pursuant to RCW 7.16.160 the party subject to the writ must be under a clear duty to act. Second and third, pursuant to RCW 7.16.170 the applicant must both be "beneficially interested," and have no "plain, speedy and adequate remedy in the ordinary course of law." Eugster v. City of Spokane, 118 Wn. App. 383, 403, 76 P.3d 741 (2003). Courts interfere in the discretionary acts of public officers only when the act in question is so arbitrary and capricious as to evidence a total failure to exercise discretion. Miller v. Pacific County, 9 Wn. App. 177, 178, 509 P.2d 377 (1973).
A discretionary function is one involving a basic governmental policy, program, or objective requiring the exercise of a basic policy evaluation, judgment, and expertise on the part of the officer or agency; it is essential to realization of the policy and within the proper authority and duty of the officer or agency. Moloney v. Tribune Publ'g Co., 26 Wn. App. 357, 360, 613 P.2d 1179 (1980), overruled on other grounds by Bender v. City of Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983).
Judge Ottinger has failed to demonstrate that Bagshaw had a "clear duty to act." She has not demonstrated that Bagshaw had a clear duty to decide either to provide the assistance of county personnel or to authorize the expenditure of county monies to fund Judge Ottinger's legal representation and costs incurred in the CJC proceeding.
KCC 4.13.010 provides that the county "shall provide legal representation and indemnification to protect county officers [and] employees . . . from personal liability for alleged violations of civil or criminal law resulting from or based upon alleged acts or omissions of the officer [or] employee." However, in the CJC matter, Judge Ottinger was not alleged to have violated civil or criminal law.
Further, although the ordinance does not define "personal liability," KCC 4.13.020(B) provides that "any and all questions" regarding whether a county employee should have the benefit of legal representation at county expense in a given matter shall be resolved by the chief civil deputy prosecuting attorney, in this case, Bagshaw.
We conclude that Bagshaw's decision to deny Judge Ottinger representation in the CJC proceeding at county expense was a proper exercise of the discretion granted to Bagshaw by KCC 4.13.020. Her decision was neither arbitrary nor capricious but, rather, was based on Bagshaw's interpretation of the term "personal liability" in KCC 4.13.010. Bagshaw correctly asserted that a CJC proceeding is neither a civil nor a criminal matter, and that the CJC can only impose disciplinary sanctions.
Accordingly, under the circumstances of the instant dispute, we conclude that KCC 4.13 did not require Bagshaw to provide the services of county personnel or county funding for Judge Ottinger's defense in the CJC proceeding. Bagshaw's decision to deny Judge Ottinger's request was made with regard to the facts, was consistent with the applicable provisions of law, and was a proper exercise of the discretion entrusted to her by ordinance. We affirm the trial court's decision denying Judge Ottinger's petition for a writ of mandamus.
CR 60(b)(3) Motion
Judge Ottinger next assigns error to the trial court's denial of the CR 60(b)(3) motion brought by Judge Ottinger following the trial court's denial of her petition. Specifically, Judge Ottinger asserts that the evidence she discovered following the hearing on her petition, concerning the prosecuting attorney's office's practice of representing deputy prosecutors in WSBA matters and of its representation of Judge Harn and Ms. Jones in Judge Ottinger's CJC proceeding, constitutes newly discovered evidence and that the trial court erred by denying the CR 60 (b)(3) motion.
We review the trial court's decision on a CR 60(b) motion for an abuse of discretion. Pybas v. Paolino, 73 Wn. App. 393, 399, 869 P.2d 427 (1994). Pursuant to CR 60(b)(3), a party may seek relief from an order on the basis of newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under rule CR 59(b). Wagner Dev., Inc. v. Fid. Deposit Co., 95 Wn. App. 896, 906, 977 P.2d 639 (1999). However, to warrant CR 60(b)(3) relief, the newly discovered evidence must be material. Hinton v. Carmody, 186 Wash. 242, 255, 60 P.2d 1108 (1936).
Based on our review of the record on appeal, the briefing of the parties, and the authorities cited therein, we conclude that the trial court's ruling on Judge Ottinger's CR 60(b)(3) motion was a proper exercise of the court's discretion.
The evidence that Judge Ottinger presented in conjunction with the CR 60(b)(3) motion was not material to the trial court's ruling on Judge Ottinger's petition for a writ of mandamus. Judge Ottinger's request to Bagshaw was based on KCC 4.13.010 and .020. Bagshaw's denial of Judge Ottinger's request was based solely on Bagshaw's interpretation of those ordinance provisions. Judge Ottinger's petition for a writ of mandamus, consequently, was also based on those ordinance provisions.
However, the deposition testimony demonstrates that the decisions to provide representation to deputy prosecutors involved in WSBA proceedings were not based on KCC 4.13.010 and .020. To the contrary, Bagshaw testified that the representation of deputy prosecuting attorneys in WSBA proceedings was based on an "unwritten" policy within the prosecuting attorney's office.
At oral argument before this court, Bagshaw's counsel argued that the representation of deputy prosecuting attorneys in WSBA proceedings by the prosecuting attorney's office is authorized by the "common law." In the trial court, Judge Ottinger's request for relief understandably did not seek a judicial determination of the legitimacy of this position. Accordingly, the trial court made no ruling on the issue, and we are not called upon to opine as to the legitimacy of this position.
Similarly, testimony established that the decision to provide legal representation to Judge Harn and Ms. Jones, witnesses in the CJC proceeding involving Judge Ottinger, was also not based upon KCC provisions. In fact, Bagshaw could not explain why the prosecuting attorney's office was representing Judge Harn and Ms. Jones.
In short, Judge Ottinger did not present evidence that the prosecuting attorney's office provided representation to deputy prosecuting attorneys involved in WSBA proceedings or county employees serving as witnesses in the CJC proceeding based on KCC 4.13.010 and .020. Evidence that Bagshaw justified such representation on bases other than KCC 4.13.010 and .020 is not material to the determination of whether Bagshaw's denial of Judge Ottinger's request for representation pursuant to these ordinance provisions was wrongful. Thus, such evidence, even if it were "newly discovered," does not warrant CR 60(b)(3) relief. Hinton v. Carmody, 186 Wash. at 255.
The trial court denied the CR 60(b)(3) motion on the basis that the evidence presented was not "newly discovered," within the meaning of the court rule invoked. This was a proper exercise of the trial court's discretion.
As noted by the trial court, the evidence concerning the prosecuting attorney's office's practice of representing deputy prosecutors involved in WSBA proceedings was cumulative to the concession by Bagshaw's counsel that the prosecuting attorney's office represented deputy prosecutors in WSBA proceedings, a concession which the trial court considered when ruling on the motion for a writ of mandamus.
Moreover, the evidence concerning the prosecuting attorney's office's representation of Judge Harn and Ms. Jones in Judge Ottinger's CJC proceeding was not "newly discovered," as it was not in existence at the time the trial court ruled on the motion for a writ of mandamus. To be "newly discovered," for purposes of a CR 60(b)(3) motion, evidence must have existed at the time of the trial court's initial decision on the motion. In re Marriage of Knutson, 114 Wn. App. 866, 872, 60 P.3d 681 (2003). Here, the trial court's ruling on the motion for a writ of mandamus predated the prosecuting attorney's office's representation of Judge Harn and Ms. Jones.
The trial court's ruling on these questions was correct. The trial court did not abuse its discretion in denying Judge Ottinger's CR 60(b)(3) motion.
Affirmed.