State v. Cook

¶1— The question in this case is whether the trial court erred in ruling that a complaint for a traffic offense against Vina S. Cook should be dismissed because the state was represented during the trial of the cause by a legal intern.

¶2Ms. Cook was arrested and charged in Renton District Court, King County, with driving while under the influence of intoxicating liquor. By a pretrial motion, she challenged the qualifications of Richard F. McDermott, a legal intern employed by the King County Prosecuting Attorney to represent the state. The trial judge reserved ruling upon the motion, heard the case upon its merits, and after being extensively briefed on the question, decided that Mc-Dermott was not qualified to serve as counsel for the state and dismissed the complaint. The state then applied to this court for a review by writ of certiorari, which was granted.

¶3The first question to be determined is whether McDermott had the necessary qualifications to represent the state in its prosecution of Ms. Cook. We hold that he did in the absence of an inhibiting statute. The Supreme Court, acting pursuant to its inherent power to determine who may or may not appear as counsel in the courts of this state, State ex rel. Laughlin v. Washington State Bar Ass’n, 26 Wn.2d 914, 176 P.2d 301 (1947); In re Bruen, 102 Wash. 472, 172 P. 1152 (1918), promulgated APR 9, which provides for the certification of law students and others to engage in the limited practice of law. McDermott was so certified and, therefore, had the necessary credentials to practice law in the Renton District Court under certain limitations not material to this case.

¶4The next question is whether the prosecuting attorney had the authority to appoint McDermott to represent the state in the trial of the action. We hold that he did not. All criminal actions in which the state is a party are to be prosecuted by the prosecuting attorney, RCW 36.27.020, or by deputies appointed by him. RCW 36.27.040. The legislature, which is charged with the responsibility of providing *229for the office of prosecuting attorney, Constitution of the State of Washington, article 11, section 5, has set his qualifications to be that he must be a qualified elector of the county and “admitted as an attorney and counselor of the courts of this state.” RCW 36.27.010. His deputies must have the same qualifications. RCW 36.27.040. Lawyers who do not meet the statutory requirements may with the permission of the court assist the prosecuting attorney in the trial of a case, State v. Schultz, 145 Wash. 644, 261 P. 385 (1927), but are ineligible to function as prosecuting attorneys. State v. Heaton, 21 Wash. 59, 56 P. 843 (1899). A defendant may waive the lack of qualifications of the lawyer representing the state by failing to object and not showing prejudice. State v. Gibson, 79 Wn.2d 856, 490 P.2d 874 (1971); State v. Storrs, 112 Wash. 675, 192 P. 984, 197 P. 17 (1920).

¶5As a certified legal intern with a limited license to engage in the practice of law, McDermott did not possess the qualifications specified by the legislature for persons representing the state in its courts, and, consequently, the King County Prosecuting Attorney did not have the authority so to employ him.

¶6 The state contends that McDermott was not a deputy prosecuting 'attorney but rather a necessary employee who could perform any act the prosecuting attorney is authorized to perform as provided by RCW 36.16.070. This statute is a general provision for the augmentation of county offices and does not apply because, as has been seen, RCW 36.27.040 specifically provides for deputies who shall have the same powers in all respects as the prosecuting attorney. When a general and specific statute deal with the same subject, the specific statute prevails. State v. Walls, 81 Wn.2d 618, 503 P.2d 1068 (1972).

¶7The state relies upon Eggan v. State, 4 Wn. App. 384, 481 P.2d 571 (1971), in support of its position that it is not necessary for a prosecuting attorney to be present in every criminal case. In Eggan, the action was commenced by the filing of a citizen’s complaint. The prosecuting attor*230ney was not notified of the pending proceeding and it was not until the complaining witness had testified that the defendant raised the question of the absence of the prosecutor. Our court, division three, found no prejudice and affirmed the judgment of conviction. The situation in the case before us is far different. Ms. Cook was charged by an official complaint, the prosecuting attorney was fully aware of the proceedings, and objection to the absence of the prosecuting attorney was timely made.1

¶8Finally, there is the question of whether Ms. Cook has the necessary standing to successfully challenge the use of a legal intern in the state’s prosecution against her. We believe that she has. The prosecuting attorney, as a quasi-judicial officer, has a duty to see that an accused is given a fair trial because “[t]he state is just ;as much interested in preserving constitutional requirements in the trial of an accused person as in prosecuting the infraction of the laws.” State v. Stentz, 30 Wash. 134, 140, 70 P. 241 (1902); State v. Montgomery, 56 Wash. 443, 105 P. 1035 (1909). The prosecuting attorney must exercise his independent judgment as to the prosecution or dismissal of a complaint. State v. Heaton, supra.The legal representation of the state by a particularly qualified person was therefore a distinct advantage, conferred upon Ms. Cook by statute, which was not available to her during the trial.

¶9The judgment of dismissal is affirmed.

¶10Callow, J., concurs.