State v. Cook

Hale, C.J.

(concurring only in the result) — At the time this appeal was heard, the statute prescribed that no one not a member of the bar of this court could serve as prosecuting attorney:

No person shall be eligible to the office of prosecuting attorney in any county of this state, unless he is a qualified elector therein, and has been admitted as an attorney and counselor of the courts of this state.

RCW 36.27.010. Deputy prosecuting attorneys were given the same power and authority as the prosecuting attorney and were required to be members of the bar in a statute declaring that “Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney.” RCW 36.27.040. Because the prosecuting attorney and his deputies hold offices created by the state constitution, they are in law public officials. Const, art. 11, § 5.

Since the prosecuting attorney and his deputies hold public offices and their qualifications are prescribed by statute under the constitution, it follows that the courts are and should be without power to either abrogate or enhance the power and authority of prosecuting attorneys and their deputies, or to establish other and different public offices with either the authority or power to fulfill the functions of prosecuting attorneys and deputy prosecuting attorneys.

Accordingly, this court cannot, within the lawful exercise of its judicial power, create the office of prosecuting attorney, or one like it, nor can it authorize such office to be filled by persons who do not possess the qualifications prescribed by statute for that office. I would, therefore, reject the rationale of the majority opinion and hold that the statute requiring that prosecuting attorneys and their deputies must be members of the bar be upheld and that this court is without power to prescribe lesser qualifications or to otherwise amend such statutes.

*353 The major issue presented by this appeal, however, in my judgment, has been mooted by the enactment of Laws of 1974, 1st Ex. Sess., ch. 6, § 1, which provides, inter alia:

Notwithstanding any other provision of this chapter, nothing in this chapter shall be deemed to prevent a prosecuting attorney from employing legal interns as otherwise authorized by statute or court rule.

This statute, at least prima facie, does, I think, enable prosecuting attorneys to authorize legal interns to handle cases in courts of limited jurisdiction in accordance with the rules of this court.

Accordingly, I concur only in the result of the court’s opinion.

Rosellini and Hunter, JJ., concur with Hale, C.J.