author: HAGEN, Judge:

text:
    STATE of Utah, Appellee, v. Jeremy Lee PERKINS, Appellant.
    No. 20180154-CA
    Court of Appeals of Utah.
    Filed July 11, 2019
    Ryan L. Holdaway and Diane Pitcher, Logan, Attorneys for Appellant
    Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 Jeremy Lee Perkins challenges the district court's denial of his motion to suppress evidence obtained from a search that he argues was unconstitutional. Perkins argues that the officers did not have reasonable suspicion of recent criminal activity and his detention was therefore illegal. In the alternative, he argues that even if the detention was lawful at its inception, the detention was unreasonably long. We affirm.

BACKGROUND

¶2 A concerned citizen met "face-to-face" with Officer Pearce to inform the officer that Perkins's girlfriend (the girlfriend) was using and selling drugs. Among other things, the concerned citizen witnessed the girlfriend sell methamphetamine to Perkins. For the next few weeks, Officer Pearce attempted to contact the girlfriend and her probation officer, to no avail.

¶3 When the girlfriend went to the Adult Probation and Parole (AP&P) office for her monthly check-in, the probation officer informed Officer Pearce that she had arrived. Officer Pearce met with the girlfriend at the AP&P office and asked her some questions based on the concerned citizen's report. In particular, Officer Pearce asked the girlfriend if he and the probation officer would find any drugs if they searched her car. At first the girlfriend said no, but as they were walking to her car, she admitted there were drugs in the center console. The officers searched the car and collected small baggies containing crystal pieces that later tested positive for methamphetamine.

¶4 After discovering the narcotics in her car, Officer Pearce informed the girlfriend of her rights and questioned her about using and selling drugs. The girlfriend admitted to selling methamphetamine and confirmed the concerned citizen's report that Perkins was one of her customers. Initially, she told Officer Pearce that she had seen Perkins use methamphetamine that morning, but she later changed her story and claimed she had last seen him use the week before. The girlfriend lived with Perkins and his sister, and Officer Pearce asked whether there were drugs at the residence (the residence). The girlfriend said they would find only drug paraphernalia.

¶5 Officer Pearce, other officers, and a canine unit, accompanied the girlfriend back to the residence and conducted a drug sniff and a search of the common areas "as outlined in [her] probation agreement." The girlfriend lived in the basement of the residence, and Perkins and his sister lived upstairs. The drug dog alerted to narcotics in the girlfriend's bedroom and in an upstairs bathroom used by Perkins and his sister. The officers also found paraphernalia and prescription medication not prescribed to the girlfriend in her room.

¶6 Based on the information provided by the concerned citizen as well as the girlfriend's statements that she sold Perkins methamphetamine and recently saw him use it, Officer Pearce wanted to detain Perkins for further investigation. Officer Pearce contacted another officer, Officer Stirland, and instructed him to attempt to locate and detain Perkins at his workplace. According to Officer Stirland's testimony, Officer Pearce did not provide many details about the justification for or purpose of the stop.

¶7 At 11:44 a.m., Officer Stirland located Perkins in the company's parking lot and detained him. Officer Stirland notified Officer Pearce, who was still at the residence where the canine unit was finishing its work. Officer Pearce told Officer Stirland that he was dispatching a canine unit to Perkin's location and to continue to detain Perkins until the unit arrived. As soon as the drug sniff at the residence had concluded, the canine unit left for Perkins's location. Due to heavy snow on the roads as well as the distance between the residence and Perkins's location, the drive took approximately twenty minutes. While waiting for the canine unit to arrive, Officer Stirland allowed Perkins to remove company-owned items from his truck and wait inside his company's office. According to the call records, the canine unit arrived at Perkins's location between 12:20 p.m. and 12:30 p.m. The drug dog alerted to narcotics in Perkins's truck within five minutes of arriving.

¶8 Meanwhile, at the residence, Officer Pearce had begun drafting an affidavit for a search warrant to obtain bodily fluids from Perkins to test for recent drug use. When he was notified that the drug dog had alerted to the smell of narcotics in Perkins's truck, Officer Pearce revised his affidavit to include a request to search the truck. The officers decided to wait for the search warrant, which was already in progress, rather than conduct a warrantless search of the truck based on the drug dog's alert or Perkins's consent.

¶9 Officer Pearce concluded his investigation at the residence at approximately 12:45 p.m. and then traveled to Perkins's location. Officer Pearce completed the affidavit for a search warrant while another officer drove. Once they arrived on the scene, Officer Pearce electronically submitted the affidavit for the search warrant at 1:31 p.m. When he did not receive an immediate response, Officer Pearce contacted the court and learned that the magistrate judge who was in charge of signing warrants that week was not available. Officer Pearce contacted two other magistrate judges, but neither judge could access the affidavit. After contacting different agencies to resolve the issue, a magistrate judge was able to review the affidavit and the search warrant was approved at 1:59 p.m.

¶10 Officer Pearce executed the search warrant and collected a urine sample from Perkins, which tested positive for methamphetamine. A search of the truck did not uncover drugs or drug paraphernalia, but did lead to the discovery of an assault rifle. The State charged Perkins with possession of an illegal substance and possession of a firearm by a restricted person.

¶11 Perkins moved to suppress the result of his urine analysis and the discovery of the firearm in his truck, arguing that his initial detention was illegal because it "was not based upon reasonable suspicion" and, even if it were, "the duration of the detention substantially exceeded what was reasonable given the information available [to the officers] at the time." Following an evidentiary hearing, the district court denied Perkins's motion to suppress, concluding that "the officer had reasonable suspicion that [Perkins] may have been in possession of illegal narcotics and acted with due diligence in pursuing the investigation thereof and obtained the necessary search warrants in a timely manner." The district court credited the call logs to establish the timeline of events and determined that the length of the detention was reasonable under the totality of the circumstances.

¶12 Following this denial, Perkins entered a conditional no-contest plea to possession of a controlled substance, preserving his right to appeal the denial of his motion to suppress under rule 11(j) of the Utah Rules of Criminal Procedure. Perkins now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Perkins contends the district court should have granted his motion to suppress for two reasons. First, he argues that the officers did not have reasonable suspicion of criminal activity to detain him. Second, he argues that the duration of the detention was "considerably longer than necessary" to confirm or dispel the officers' suspicion of criminal activity. "We review a denial of a motion to suppress as a mixed question of law and fact and will disturb the district court's factual findings only when they are clearly erroneous, but we afford no deference to the district court's application of law to the underlying factual findings." State v. Sosa , 2018 UT App 97, ¶ 6, 427 P.3d 448 (quotation simplified).

ANALYSIS

¶14 The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The touchstone of the Fourth Amendment is reasonableness, which is measured in objective terms by examining the totality of the circumstances." State v. Baker , 2010 UT 18, ¶ 10, 229 P.3d 650 (quotation simplified); see also Ohio v. Robinette , 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). "Reasonableness under the Fourth Amendment depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law [enforcement] officers." Baker , 2010 UT 18, ¶ 10, 229 P.3d 650 (quotation simplified).

¶15 There are "three different kinds of police-citizen encounters, each permitting a different degree of intrusion and requiring a different level of justification." State v. Worwood , 2007 UT 47, ¶ 21, 164 P.3d 397. "A level one encounter occurs when a police officer approaches a citizen and asks questions, but the person is not detained against his will and remains free to leave." State v. Biggs , 2007 UT App 261, ¶ 10, 167 P.3d 544 (quotation simplified). "A level two encounter," otherwise known as a Terry stop, "occurs when a police officer temporarily seizes an individual because the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime." Id. (quotation simplified); see also Terry v. Ohio , 392 U.S. 1, 26-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Finally, a level three [encounter] occurs when a police officer has probable cause to believe that a crime has been committed and effects an arrest of the suspect." Biggs , 2007 UT App 261, ¶ 10, 167 P.3d 544 (quotation simplified).

¶16 In this case, Officer Pearce ordered Officer Stirland to initiate a Terry stop and detain Perkins until a canine unit could arrive and conduct a dog sniff for narcotics. When an officer initiates a Terry stop, courts apply a two-step inquiry to determine whether the stop is constitutional: (1) whether the stop was justified at its inception, and (2) whether the resulting investigation was "carried out in a manner reasonably related in scope to the circumstances that justified the interference in the first place." State v. McLeod , 2018 UT App 51, ¶ 16, 420 P.3d 122 (quotation simplified); see also United States v. Sharpe , 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). A stop is justified at its inception when the officer has reasonable suspicion of criminal activity. See State v. Simons , 2013 UT 3, ¶ 14, 296 P.3d 721. When officers have reasonable suspicion of criminal activity, they "must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly." See Baker , 2010 UT 18, ¶ 26, 229 P.3d 650 (quotation simplified). If officers unnecessarily prolong the detention and do not act quickly to confirm or dispel their suspicions, the once-lawful detention can become unlawful. See McLeod , 2018 UT App 51, ¶ 17, 420 P.3d 122.

¶17 Here, Perkins first argues that the stop was not justified at its inception because the officers did not have reliable information to support their belief that Perkins had recently engaged in criminal activity. Second, Perkins argues that even if the stop was justified at its inception, the resulting detention was unreasonable in length. We address each argument in turn.

A. Reasonable Suspicion of Criminal Activity

¶18 To lawfully initiate a Terry stop, an officer must have reasonable suspicion that "the person has committed or is about to commit a crime." State v. Baker , 2010 UT 18, ¶ 16, 229 P.3d 650 (quotation simplified). Under these circumstances, " 'the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.' " State v. Simons , 2013 UT 3, ¶ 21, 296 P.3d 721 (quoting United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ).

¶19 Perkins's argument that the stop was unlawful at its inception focuses almost exclusively on whether the information provided by the concerned citizen was sufficiently reliable and timely to give rise to reasonable suspicion that Perkins had recently used methamphetamine. But this was not the only information on which the officers based the detention. The officers corroborated the tip when the girlfriend confirmed that she had consistently sold methamphetamine to Perkins and had recently seen Perkins using methamphetamine, possibly as recently as that morning. Also, during the search of the residence, the officers found drug paraphernalia and a drug dog alerted to narcotics in a bathroom used by Perkins and his sister. Based on this information, Officer Pearce had reasonable, articulable suspicion that Perkins had recently committed a crime and was therefore justified in instructing Officer Stirland to detain him. See State v. Biggs , 2007 UT App 261, ¶ 10, 167 P.3d 544.

B. Length of Detention

¶20 Having determined that there was reasonable suspicion to detain Perkins, we must now determine whether the length of his detention was reasonable. Perkins argues that the district court should have granted his motion to suppress because the officers did not "diligently pursue a method of investigation that would quickly confirm or dispel the basis for the [detention]."

¶21 Although Perkins's detention was continuous from the initial Terry stop to his arrest, once the dog alerted to narcotics in his truck, the nature of the detention changed. We therefore look at two distinct time periods: (1) the time between Perkins's initial detention and the dog alert on the truck (reasonable suspicion detention), and (2) the time between the dog alert on the truck, which established probable cause to search, and the execution of the search warrant (probable cause detention).

1. Reasonable Suspicion Detention

¶22 Perkins argues that even if the officers had reasonable suspicion to detain him, his detention was unreasonably prolonged waiting for the canine unit to arrive. When determining whether the length of a detention was reasonable, we do not look at the length of the detention alone. Instead, we look to the totality of the circumstances surrounding the detention, see State v. Baker , 2010 UT 18, ¶ 17, 229 P.3d 650, and "examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant," United States v. Sharpe , 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

¶23 Here, Officer Pearce was conducting parallel investigations into both Perkins and the girlfriend. Officer Pearce was still in the process of searching the residence when he ordered Officer Stirland to locate and detain Perkins. At 11:44 a.m., Officer Stirland informed Officer Pearce that Perkins had been detained, and Officer Pearce told Officer Stirland to detain Perkins until a canine unit arrived. At that time, the drug dog being used in the investigation was still finishing its work at the residence. As soon as the dog completed its sniff at the residence, Officer Pearce immediately sent the dog and its handler to Perkins's location. Given the distance between the two locations and the heavy snow, it took about twenty minutes for the canine unit to arrive. Based on the call records, the canine unit arrived somewhere between 12:20 p.m. and 12:30 p.m. and the dog alerted to the presence of narcotics within five minutes of arrival.

¶24 Under the circumstances, the thirty-six- to forty-six-minute delay until the commencement of the dog sniff was reasonable. Although we have little Utah case law directly on point, other courts have consistently held that comparable delays are reasonable where the officers promptly requested a drug dog to be transported to the scene of the stop. See, e.g. , United States v. Mendoza , 468 F.3d 1256, 1261 (10th Cir. 2006) ("Given the distance between the scene of the detention and the nearest handler, as well as [the trooper's] diligence in promptly calling the dog handler and the handler's speedy arrival, a 40-minute detention was reasonable."); United States v. Cervine , 347 F.3d 865, 872-73 (10th Cir. 2003) (holding that the length of the detention was reasonable where "the traffic stop, detention, and canine search of [the defendant's] vehicle lasted approximately fifty minutes"); United States v. Villa-Chaparro , 115 F.3d 797, 802-03 (10th Cir. 1997) (holding that the officer "acted reasonably in detaining [the defendant] for five minutes from the time he stopped [the defendant] ... and for an additional thirty-eight minutes while he waited for the canine unit to arrive").

¶25 Perkins contends that those cases, in which reasonable suspicion arose during the course of the stop, are distinguishable. For instance, he argues that in Villa-Chaparro , the officer "did not know prior to stopping the defendant that he was going to be needing a drug dog," whereas in this case the officer knew that "the very purpose of stopping [Perkins] was to investigate drugs" and had "prior knowledge that the drug dog would be needed." However, Perkins ignores the fact that the officers did not know if or when Perkins would be located. As soon as Officer Stirland confirmed that Perkins had been stopped, and Officer Pearce knew that a dog sniff could take place, he promptly sent a canine unit to Perkins's location. Nothing in the record suggests that another canine unit was available that could have arrived more quickly. See United States v. Donnelly , 475 F.3d 946, 954 (8th Cir. 2007) (holding that a fifty-nine-minute detention awaiting a drug dog was reasonable where nothing suggested that the officer "exercised suboptimal diligence" or that "a similarly trained canine unit could have reached the scene sooner"). "When police need the assistance of a drug dog in roadside Terry stops, it will in general take time to obtain one; local government police forces and the state highway patrol cannot be expected to have drug dogs immediately available to all officers in the field at all times."

United States v. Bloomfield , 40 F.3d 910, 917 (8th Cir. 1994). Given the parallel investigations taking place some distance apart, as well as the road conditions at the time, Perkins's thirty-six- to forty-six-minute detention while awaiting the drug dog's arrival was reasonable.

¶26 Finally, Perkins claims that his detention was unreasonable because Officer Stirland was not actively questioning him or otherwise investigating the suspected drug activity while waiting for the canine unit to arrive. While "officers must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly," State v. Simons , 2013 UT 3, ¶ 17, 296 P.3d 721 (quotation simplified), Perkins does not explain how subjecting him to questioning would have dispelled the officers' reasonable suspicion or reduced the length of the detention. The decision to forgo further questioning until the dog sniff was particularly reasonable in this case where the officer making the stop was not privy to the details of the investigation. Given that the police had reasonable suspicion of drug activity and promptly requested a canine unit to conduct a minimally invasive sniff to confirm or dispel their suspicions, Perkins's thirty-six- to forty-six-minute detention was reasonable.

2. Probable Cause Detention

¶27 Perkins also challenges the length of the detention between the dog alert and the time the search warrant was executed, again arguing that the officers did not diligently pursue a method of confirming or dispelling their suspicion of criminal activity. Specifically, Perkins argues that once the drug dog alerted, the officers should have conducted a search of his truck rather than waiting for a search warrant. We disagree.

¶28 Absent an exception to the warrant requirement, officers must obtain a warrant prior to conducting a search. U.S. Const. amend. IV ; see also State v. James , 2000 UT 80, ¶ 9, 13 P.3d 576 (explaining that there "are a number of exceptions to the presumptive rule" that "searches may not be conducted without a warrant supported by probable cause" (quotation simplified)). One exception to the warrant requirement is the automobile exception. James , 2000 UT 80, ¶ 10, 13 P.3d 576. This exception allows officers to conduct a warrantless search of a car "so long as there [is] probable cause for the search." State v. Rigby , 2016 UT App 42, ¶ 12, 369 P.3d 127 ; see also Pennsylvania v. Labron , 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam) ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.").

¶29 In this case, once the drug dog alerted to the scent of narcotics in the truck, the officers had probable cause to conduct a warrantless search under the automobile exception. See Rigby , 2016 UT App 42, ¶ 12, 369 P.3d 127. Nevertheless, the officer chose to take the more prudent course of obtaining a search warrant. And, as the United States Supreme Court has explained, "[g]iven probable cause to search, either course is reasonable under the Fourth Amendment." Chambers v. Maroney , 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ("For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant."). And here, where a search warrant affidavit for a urine sample was already in progress, the officers' decision to concurrently seek judicial approval for the automobile search afforded Perkins greater Fourth Amendment protection. See Illinois v. Gates , 462 U.S. 213, 236-37 & n.10, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (explaining "the Fourth Amendment's strong preference for searches conducted pursuant to a warrant"); State v. Ashe , 745 P.2d 1255, 1267 n.59 (Utah 1987) ("The government should actively encourage its law enforcement agents to seek search warrants whenever possible and by any available means provided by statute. Judicial officers should cooperate to the utmost in promoting this policy.").

¶30 We further conclude that the time between the drug dog alert on Perkins's truck and the issuance of the warrant was not unreasonably lengthy. As detailed above, Officer Pearce was conducting a dual investigation of two people at two locations during the relevant time period. When Officer Pearce was notified of the drug dog alert, he was still at the residence. As soon as the search of the residence was completed at approximately 12:45 p.m., Officer Pearce went directly to Perkins's location, working on the affidavit for the search warrant during the twenty-minute drive. The warrant was submitted at 1:31 p.m., shortly after Officer Pearce arrived on the scene. Officer Pearce placed calls to the court to locate an available magistrate to ensure that the warrant would be promptly reviewed. Under these circumstances, we agree with the district court that the officers acted with due diligence and obtained a search warrant in a timely manner.

CONCLUSION

¶31 We conclude that the officers had reasonable suspicion of criminal activity that justified detaining Perkins for further investigation. We further conclude that the detention was not unreasonably lengthy, given the simultaneous investigations, the distance between the locations, the road conditions at the time, and the developing information. Accordingly, we affirm the denial of the motion to suppress.

      Perkins testified at an evidentiary hearing and said that Officer Stirland initiated the stop between 10:45 a.m. and 11:00 a.m. and that the canine unit arrived about thirty minutes after the stop began. The court concluded that the call log provided better evidence of the timeline than Perkins's testimony, which was based only on his recollection of the events, and determined that the stop was initiated at 11:44 a.m.

      "Possession" of a controlled substance includes, among other things, "inhalation, swallowing, [or] injection." Utah Code Ann. § 58-37-2(1)(ii) (LexisNexis 2016).

      Perkins acknowledges that, under vertical collective knowledge, an officer who has reasonable suspicion of criminal activity can instruct another officer to detain an individual, even if "the corpus of information known to the first officer" was not communicated to the detaining officer. See State v. Talbot , 2010 UT App 352, ¶ 15, 246 P.3d 112 (quotation simplified).

      The officers may have also had Perkins's valid consent to search, another exception to the warrant requirement. See State v. Bisner, 2001 UT 99, ¶ 43, 37 P.3d 1073 (noting that one exception to the warrant requirement "includes searches conducted pursuant to consent").


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Peter James BUNKER, Appellant.
    No. 20160440-CA
    Court of Appeals of Utah.
    Filed July 11, 2019
    Ann M. Taliaferro, Salt Lake City, Attorney for Appellant
    Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   POHLMAN, Judge:

¶1 It is an old legal maxim that there is no right without a remedy. Peter James Bunker seeks in this appeal a remedy for delays in his appeals process without first establishing the infringement of any underlying rights. We accordingly affirm the district court's order terminating his probation as unsuccessful and reinstating his sentence.

BACKGROUND

¶2 In 2013, Bunker was charged with assault by a prisoner. After finding Bunker indigent, the district court appointed counsel to represent him (Trial Counsel). Bunker pleaded guilty to the charge.

¶3 In June 2014, the district court sentenced Bunker to a prison term not to exceed five years. The court ordered this prison term to run consecutively to Bunker's prison sentences in a separate case in which he pleaded guilty to three first-degree felonies and was sentenced to three concurrent zero-to-five-year prison terms, which the court had suspended in favor of probation. The court also ordered him to spend 320 days in jail with a credit of 247 days for time served. The court then suspended the prison term and placed Bunker on probation.

¶4 In May 2015, Adult Probation and Parole (AP&P) alleged that Bunker had committed several probation violations. At a subsequent hearing before the district court that was handling both of Bunker's cases, Bunker admitted to two probation violations. The court revoked his probation, ordered him to serve 120 days in jail with credit for 55 days already served, and then reinstated his probation.

¶5 The next year, AP&P again alleged that Bunker had violated the conditions of his probation. At a hearing, Bunker admitted to two probation violations, and the district court accordingly found that he had violated probation. On May 9, 2016, the court terminated Bunker's probation as unsuccessful and reinstated the three concurrent zero-to-five-year prison terms from the other case. Bunker filed a timely pro se notice of appeal on May 12, 2016, and this appeal was docketed.

¶6 Shortly after receiving the notice of appeal, this court informed Trial Counsel that this appeal had been filed. And in mid-July 2016, this court ordered Trial Counsel to file Bunker's docketing statement or other proper motion. One week later, Trial Counsel moved to withdraw as counsel for Bunker, explaining that, pursuant to his contract with the county, his obligation to represent Bunker "terminates with the filing of a Notice of Appeal." On August 2, 2016, this court granted the unopposed motion to withdraw and temporarily remanded the case to the district court for the determination of Bunker's indigence and, "if indigency [was] found, for appointment of counsel." This court stayed the appeal pending disposition in the district court.

¶7 For reasons that are not apparent on the record, it took another nineteen months for the district court to appoint counsel (Appellate Attorney) to represent Bunker on appeal. Once Appellate Attorney was appointed, the appeal proceeded through the routine process of briefing and argument.

ISSUE ON APPEAL

¶8 On appeal, Bunker does not claim error in the district court's decision to revoke his probation. He instead claims that the length of the appellate process violated his constitutional rights and resulted in structural error for which this court should presume prejudice. Because Bunker's claim is necessarily brought for the first time on appeal, no standard of review applies, and we decide the issue as a matter of law.

ANALYSIS

¶9 Bunker contends that he was denied due process because his rights to the assistance of appellate counsel and to a timely direct appeal have been violated. Pointing to the time after his appeal was docketed but during which he remained without appointed appellate counsel, he asserts that he "has been prevented from proceeding with his appeal" given that "it took the court system over 20 months to appoint [him] an appellate attorney." According to Bunker, under the facts of his case, "the clear denial of fundamental constitutional rights is itself the harm," and this court therefore should not require him "to demonstrate prejudice in showing the likelihood of a more favorable outcome in his sentence." In other words, he asserts that this court should conclude that the delay in the processing of his appeal constitutes structural error.

¶10 Generally, "structural errors are flaws in the framework within which the trial proceeds, rather than simply an error in the trial process itself." State v. Cruz , 2005 UT 45, ¶ 17, 122 P.3d 543 (cleaned up). Because structural errors "affect the very framework of the trial," "a structural error analysis presumes prejudice." Id. The United States Supreme Court has "found structural errors only in a very limited class of cases." Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

¶11 Bunker's argument, in essence, has two components: (1) he faced the "denial of appellate counsel" "at a critical stage in [the] proceedings" and (2) the delay in the appellate process is "a critical problem" that prevented him from proceeding with his appeal through no fault of his own. Bunker argues that these components, together, "constitute[ ] structural error that does not require a showing of harm." We discuss each component in turn, and while we do not condone the regrettable delay in this appeal, we ultimately conclude that Bunker's rights were not violated and that these circumstances do not amount to structural error.

¶12 First, Bunker complains that he was deprived of his right to appellate counsel during critical stages of the proceedings. The Utah Supreme Court has recognized that "the denial of counsel is a structural error that does not require a showing of harm where assistance of counsel has been denied entirely or during a critical stage of the proceeding." State v. Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (emphasis in original) (cleaned up). In other words, "the denial of the right to counsel, standing alone, does not necessarily constitute structural error. To find structural error, the deprivation must occur at a critical stage of criminal proceedings." State v. Montes , 2019 UT App 74, ¶ 36, 442 P.3d 1247.

¶13 "A critical stage is a step of a criminal proceeding that holds significant consequences for the accused." Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (cleaned up). "Determining whether a given stage of a proceeding is critical involves considering whether the presence of counsel is necessary to preserve the defendant's basic right to a fair trial, whether potential substantial prejudice to the defendant's rights inheres in the particular confrontation, and the ability of counsel to help avoid that prejudice." Id. (cleaned up).

¶14 Bunker suggests that the time period between the granting of Trial Counsel's motion to withdraw in August 2016 and the appointment of Appellate Attorney in March 2018 was a critical stage of the appeal during which he was deprived of appellate counsel. Although the time period during which Bunker awaited the appointment of appellate counsel was unusually prolonged, we conclude this time period was not a critical stage of the proceeding. The only acts taken by this court and the district court while Bunker awaited the appointment of counsel involved verifying his indigency status and identifying who would serve as his appellate counsel. Supra ¶¶ 6-7. And when this court remanded to the district court for the appointment of counsel, it also expressly ordered that Bunker's appeal was stayed pending the district court's disposition. Supra ¶ 6. Thus, no decisions or events bearing on the merits of Bunker's case occurred while he was unrepresented by appellate counsel. Cf. Penson v. Ohio , 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (explaining that the denial of appellate counsel may lead to the presumption of prejudice and emphasizing that the denial of counsel in that particular case "left petitioner completely without representation during the appellate court's actual decisional process"). And because of the stay, nothing happened in the court proceedings that would have required the presence of appellate counsel to preserve Bunker's right to a fair resolution of his appeal on the merits. Once his appeal progressed to the stages that held "significant consequences" for him, i.e., briefing and argument, see Maestas , 2012 UT 46, ¶ 57, 299 P.3d 892 (cleaned up), Bunker was represented. As a result, he was not denied his right to counsel during a critical stage of the proceeding, and the first component of Bunker's argument does not support structural error here.

¶15 The second component of Bunker's argument, involving his complaints regarding the delay in the appellate process, implicate whether he has the right to a speedy appeal. A criminal defendant has the constitutional right to a speedy trial. State v. Rohwedder , 2018 UT App 182, ¶ 6, 436 P.3d 324 (citing U.S. Const. amend. VI). But as Bunker acknowledges, Utah courts have not recognized a right to a speedy appeal. In fact, the Utah Supreme Court has expressly "decline[d] to recognize a right to a speedy appeal." State v. Arguelles , 2003 UT 1, ¶ 125, 63 P.3d 731. The court also has noted that "[t]here is no controlling federal precedent that recognizes such a right" and has declined to consider whether the Utah Constitution includes this right. Id.

¶16 Arguelles is dispositive. Because this binding authority does not recognize a right to a speedy appeal, Bunker cannot show that the delay in his appeal violated this nonexistent right. See id.

¶17 Notwithstanding the fact that he lacks the "right to prosecute his appeal in a timely manner," Bunker suggests that "there comes a point where delay in the appellate process becomes presumptively prejudicial." In support, Bunker relies on State v. McClellan , 2009 UT 50, 216 P.3d 956, to argue that he should not be required to show prejudice resulting from the delay in this appeal. In McClellan , the defendant's appeal took more than twenty years to reach the supreme court for several reasons outside the defendant's control, including a near three-year delay in transferring his file from the trial court to the appellate court, the dismissal of his first attempt to appeal when his attorney failed to file a brief on his behalf, resentencing, and changing attorneys. Id. ¶¶ 27-28. When the supreme court finally resolved the merits of his appeal, it concluded that the trial court should have disqualified the county attorney's office from the case because the defendant's prior defense counsel had joined the office three days before trial and the office failed to rebut the presumption that an impermissible conflict of interest existed. Id. ¶¶ 25-26. Thus, the supreme court determined that the trial court committed an error. Id. ¶ 26.

¶18 Having identified an error, the court then considered the question of prejudice. Id. ¶ 27. It stated that to support a reversal, appellate courts generally "require a showing of prejudice," that is, a showing by the defendant that absent the error "there is a reasonable likelihood that the outcome of [the] trial would have been more favorable." Id. In a departure from this rule, it decided to "presume prejudice" on the "specific facts" presented to it. Id. The court reasoned that such a presumption was justified by the fact that, during the twenty-year delay in hearing the appeal, "[m]uch of the record has been lost or destroyed" due to various "missteps outside of [the defendant's] control." Id. ¶¶ 27-28. Under those circumstances, the court determined that "it would be unjust to hold an incarcerated defendant responsible for the loss of the court records by requiring him to demonstrate the likelihood of a more favorable outcome." Id. ¶ 27. The court therefore reversed and remanded for a new trial. Id. ¶ 28.

¶19 Bunker likens his case to McClellan and asks us to presume prejudice due to delay. But the supreme court's decision to presume prejudice in McClellan was grounded in the fact that the very records that might have allowed the defendant to show prejudice were missing or destroyed as a result of the delay from mismanagement of his case. See id. ¶¶ 27-28, 34. In other words, the defendant's ability to demonstrate prejudice was hampered by the long delay in hearing his appeal. See id. Bunker has not claimed that he would face similar difficulty in demonstrating prejudice under the facts of his case, and he has not identified any records that are now unavailable because of the length of time that it has taken to hear his appeal of his probation revocation. We therefore conclude that this case is distinguishable from McClellan , and we rely on McClellan 's general direction that for an error to warrant reversal, the appellant must show prejudice. See id. ¶ 27.

¶20 Bunker next relies on Harris v. Champion , 15 F.3d 1538 (10th Cir. 1994), in which the United States Court of Appeals for the Tenth Circuit concluded that "delay in adjudicating a direct criminal appeal beyond two years from the filing of the notice of appeal gives rise to a presumption that the state appellate process is ineffective." Id. at 1556.

¶21 In Harris , the Tenth Circuit addressed indigent state defendants' collateral claims that their rights were violated by the delay in processing their direct criminal appeals in Oklahoma courts. Id. at 1546. At the time, "the appellate criminal justice system in Oklahoma was in a crisis," resulting in delays-for example, "two to four years before [indigent defendants'] appellate brief[s] would be filed." Id. at 1550 ; see also id. at 1546. In addressing the defendants' claims, the Tenth Circuit required the state to "afford the defendant a timely appeal, for an appeal that is inordinately delayed is as much a meaningless ritual as an appeal that is adjudicated without the benefit of effective counsel or a transcript of the trial court proceedings." Id. at 1558 (cleaned up). Put another way, unlike the Utah Supreme Court in Arguelles , the Harris court expressly recognized the right to a timely appeal. Compare id. , with Arguelles , 2003 UT 1, ¶¶ 124-25, 63 P.3d 731 (noting the Harris decision and declining to reach a similar conclusion). Harris is therefore distinguishable on this basis alone.

¶22 Even so, Harris does not lend support to Bunker's position. To evaluate whether a defendant's right to timely process had been violated by delays in the appellate process, the Harris court employed a similar framework to that enunciated by the United States Supreme Court for analyzing a defendant's Sixth Amendment right to a speedy trial. 15 F.3d at 1558-59 (citing Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ). The Harris court stated that the following factors should be assessed and balanced:

a. the length of the delay;
b. the reason for the delay and whether that reason is justified;
c. whether the petitioner asserted his right to a timely appeal; and
d. whether the delay prejudiced the petitioner by
i. causing the petitioner to suffer oppressive incarceration pending appeal; or
ii. causing the petitioner to suffer constitutionally cognizable anxiety and concern awaiting the outcome of his or her appeal; or
iii. impairing the petitioner's grounds for appeal or his or her defenses in the event of a reversal and retrial.

Id. at 1559. With regard to the first factor-length of delay-the court concluded that "a two-year delay in finally adjudicating a direct criminal appeal ordinarily will give rise to a presumption of inordinate delay that will satisfy this first factor in the balancing test." Id. at 1560.

¶23 Bunker reads Harris as standing for the proposition that a criminal defendant who has faced a two-year delay in the appellate process is presumptively relieved of the burden to show prejudice stemming from the delay. To the contrary, the Harris court explained that a two-year delay may be used "only to presume excessive delay," "not to presume the ultimate issue of unconstitutionality." Id. at 1560 n.10 ; see also id. at 1561 ("The passage of two years creates only a presumption of inordinate delay on appeal."). The court further instructed that to reach the ultimate issue, "the other prongs of the Barker test also must be addressed." Id. at 1560 n.10. Indeed, the court stated that a defendant ordinarily "must make some showing on the fourth factor-prejudice-to establish a due process violation." Id. at 1559. Harris therefore does not support Bunker's position that delay alone may be presumptively prejudicial. Given that Utah law does not recognize the right to a timely appeal and given that the cases on which Bunker relies are inapposite, the second component of Bunker's argument-the delay in his appellate process-also does not weigh in favor of discerning error, let alone structural error.

¶24 In sum, Bunker has not convinced us that the unfortunate delay in processing his appeal violated his rights or constituted structural error. Because there was no error or structural error that affected the "very framework" of his appeal, see State v. Cruz , 2005 UT 45, ¶ 17, 122 P.3d 543, he is not relieved of his burden to show how he was prejudiced by the delay in his appeal. Bunker has not made that showing here. We therefore deny his request that we fashion a remedy for the delay.

CONCLUSION

¶25 Bunker has not established that his rights were violated by a delay during his appeal. He also has not shown that there is a structural error for which we must presume prejudice, and we deny his related request for relief. We accordingly affirm the district court's decision revoking his probation.

      On July 23, 2014, the district court received a handwritten document signed by Bunker himself. This document was titled, "To the 3rd District Courts Notice of Appeal," and its text asked for "a change of heart on [his] sentencing" and "a chance for a second opinion." In response, the district court forwarded the document to the prosecutor and Trial Counsel. In an attached minute entry, the court advised counsel that it would "take no action at this time on any matter raised in the [document]" and invited them to file "an appropriate motion" if either one believed further action by the court was necessary. The parties debate whether the handwritten document constituted a notice of appeal. But the present appeal is taken exclusively from the district court's May 2016 probation revocation decision. Thus, the treatment and effect of Bunker's July 23, 2014 handwritten document are not questions that are properly before us.

      The State does not dispute that Bunker has the constitutional right to a direct appeal and the constitutional right to assistance of counsel on appeal. See Utah Const. art I, § 12 ("In criminal prosecutions the accused shall have ... the right to appeal in all cases."); Gailey v. State , 2016 UT 35, ¶ 27, 379 P.3d 1278 (explaining that under the due process clause of the Fourteenth Amendment to the United States Constitution, defendants "have the right to the effective assistance of counsel on direct appeal"). For reasons discussed below, the State does not accept that Bunker has the constitutional right to a timely appeal.

      In terms of a remedy for the alleged structural error, Bunker suggests that this court "set aside and vacate his sentence" and, thereafter, "order the case closed." He claims that this proposed remedy would recognize "the harm to [him] in having already served a majority of the sentence imposed by the unreviewed orders" and would incentivize "future courts and others to refrain" from delaying the process in a similar manner. Because we conclude that there is no error, structural or otherwise, warranting relief in this case, we need not consider the propriety of Bunker's requested remedy.

      In a similar case to the one at hand, this court expressly declined a criminal defendant's invitation "to apply Harris 's four-part test in evaluating whether his due process rights to a timely appeal were violated." State v. Frausto , 2002 UT App 259, ¶¶ 31-33, 53 P.3d 486. This case predated Arguelles , and without discussing whether the defendant had the right to a timely appeal, this court indicated that it is important for defendants alleging due process violations to "show how [they have] suffered prejudice because of the delays in [their] appeal[s]." Id. ¶ 37.

      The Harris court did recognize that "delay substantially beyond two years, at least in a case that does not warrant a lengthier appellate process, will reduce the burden of proof on the other three factors necessary to establish a due process violation." Harris v. Champion , 15 F.3d 1538, 1562 (10th Cir. 1994).


author: MADSEN, J.

text:
    In the MATTER OF the Appointment of SPECIAL DEPUTY PROSECUTING ATTORNEY
    No. 95945-5
    Supreme Court of Washington.
    Oral Argument Date: February 28, 2019 Filed AUGUST 08, 2019
    Pamela Beth Loginsky, Washington Association of Prosecuting Attorney, 206 10th Avenue SE, Olympia, WA 98501-1311 for Petitioner.
    William Dale Kamerrer, Law Lyman Daniel Kamerrer et al., P.O. Box 11880, 2674 R. W. Johnson Blvd. SW, Olympia, WA 98508-1880 for Respondents.
   MADSEN, J.

¶ 1 This case has its genesis in a dispute between the Franklin County Superior Court judges and the Franklin County clerk concerning the move to electronic court files. At issue is whether the Franklin County Superior Court judges validly issued an order of appointment under RCW 36.27.030, thereby securing their own special deputy prosecuting attorney to pursue a separate civil suit. For the reasons discussed below, we hold that the order is invalid; while the judges are free to sue the clerk, they must do so at their own expense.

FACTS

¶ 2 In 2015, the Administrative Office of the Courts (AOC) began to implement a new superior court case management system, known as Odyssey, in counties around the state of Washington. Odyssey is a $50 million endeavor, and AOC's goal is to implement a fully electronic case management, calendaring, and document storage and retrieval system for the superior courts. Odyssey was to be installed in most counties by the end of 2018.

¶ 3 Franklin County was an early adopter of the Odyssey record system. The county clerk and the superior court judges largely cooperated with the transition to Odyssey and anticipated that the court files would be paperless by 2018. To facilitate this transition, the clerk gave the superior court judges wireless access devices and expressed his willingness to accommodate other requests. The transition to Odyssey progressed to the point where both the superior court administrator and the clerk "signed off" that the system was fully operational in Franklin County. ACP at 89-90.

¶ 4 Shortly after the clerk's transition to a paperless file system was fully implemented, the superior court judges of Franklin County directed the Franklin County clerk to continue making and maintaining paper files. The clerk declined to do so as his budget was insufficient to allow him to maintain duplicate paper files. The clerk also deemed it unnecessary to maintain duplicate paper files as no one had accessed the existing paper files for over a year.

¶ 5 Declaring an emergency, the judges adopted Benton/Franklin Counties Superior Court Local General Rule (LGR) 3. LGR 3 orders the clerks of Benton and Franklin Counties to "keep and maintain paper files for all cases and file types, by forthwith filing all pleadings and papers in paper files, except as may be otherwise authorized in writing by the Court." ACP at 183.

¶ 6 When Franklin County Clerk Michael Killian maintained his refusal to create duplicate paper files, the judges threatened legal action. The Franklin County Prosecuting Attorney Shawn Sant appointed a special deputy prosecuting attorney pursuant to RCW 36.27.040 to represent Clerk Killian with respect to any contempt or other legal action that the judges threatened to pursue.

¶ 7 Although Prosecutor Sant could discharge his mandatory duty of providing legal advice to both the judges and Clerk Killian with respect to paper court files, he offered to appoint a special deputy prosecuting attorney to advise the judges as well. After soliciting input from the judges, W. Dale Kamerrer was ultimately appointed. It was Prosecutor Sant's purported intent that Mr. Kamerrer would assist the judges to reach a negotiated resolution of the paper records dispute with Clerk Killian.

¶ 8 Instead of engaging in discussions regarding how best to move to a paperless system and what steps might be taken to address the bench's concerns, Mr. Kamerrer initiated a suit against the Franklin County clerk. Mr. Kamerrer filed this lawsuit without prior permission from Prosecutor Sant. Upon receiving notice of the filing of the suit, and viewing the action as a lawsuit against the county, Prosecutor Sant directed Mr. Kamerrer to cease further work on the lawsuit. Prosecutor Sant halted the lawsuit in part due to a lack of funds, as neither his budget nor the judges' budget included an appropriation for the purpose of filing lawsuits against a county official at the request of another county official.

¶ 9 Mr. Kamerrer, on behalf of the judges, sought to remove the financial barrier to the lawsuit against Clerk Killian by asking the board of county commissioners (Board) to appropriate funds to pay for the action. Prosecutor Sant opposed the request on the grounds that he is not required to initiate suit on behalf of one county officer against another county officer; that if the judges' action is funded, the county would be required to expend a similar amount of money to defend the clerk; that mediation is a better option; and that the legal question may be resolved in a cost-effective manner by requesting an opinion from the Attorney General's Office.

¶ 10 After hearing from Mr. Kamerrer, Prosecutor Sant, Clerk Killian, and others in public meetings, the Board declined to appropriate the funds needed to litigate the judges' lawsuit in the trial and appellate courts. The Board's final decision on funding the lawsuit was made after Clerk Killian agreed to provide paper files, upon request, to the judges for another 3 to 12 months so that any remaining transition problems could be worked out. The Board's decision was in accord with the judges' stated willingness to resolve any technical issues related to Odyssey and the Board's belief that the public would be better served by expending funds on any necessary technological upgrades than on litigation. In light of the Board's decision, Prosecutor Sant revoked Mr. Kamerrer's special deputy appointment in a letter that repeated his availability to provide legal advice to the judges.

¶ 11 The judges disagreed with the Board's decision. The judges communicated their dissatisfaction with the Board, indicating that the Board did not sufficiently appreciate "[t]he magnitude of the disagreement between the Court and the Clerk." ACP at 192. A portion of the letter to the Board stated:

The Prosecuting Attorney cannot represent the Court in this matter. He has acknowledged that by appointing outside counsel for both the Court and the Clerk. This brings RCW 36.27.030 into play, and that statute authorizes the Court to appoint an attorney to stand in for the Prosecutor and compel the County to compensate that attorney for his or her services. We prefer that appointment and compensation be initiated by the Prosecutor and supported by the Board of County Commissioners, but that has not happened. Accordingly, the Court will exercise its authority to appoint counsel and compel compensation, with the amount of that compensation being subject to review and approval by the Court.

ACP at 194.

¶ 12 On May 21, 2018, the judges signed an "Order of Appointment" in a matter they entitled "In re the Appointment of a Special Deputy Prosecuting Attorney." Clerk's Papers (CP) at 2-4; ACP at 199-201. The order of appointment, which was filed with the Franklin County Clerk's Office on May 22, 2018, was entered in chambers. Neither the Board nor Prosecutor Sant was provided with notice that the order of appointment would be considered by the judges on May 21, 2018. Nor were they provided with an opportunity to tender legal arguments in opposition to the entry of the order of appointment. The judges did not serve a copy of the signed order of appointment on either Prosecutor Sant or the Board, who learned about the order only when Clerk Killian delivered a copy to Prosecutor Sant's office.

¶ 13 The order of appointment appoints W. Dale Kamerrer "as a Special Deputy Prosecuting Attorney to represent the plaintiffs in" "the action entitled The Judges of the Benton and Franklin Counties Superior Court: Judge Joe Burrowes, Judge Alex Ekstrom, Judge Cameron Mitchell, Judge Carrie Runge, Judge Jacqueline Shea-[B]rown, Judge Bruce Spanner and Judge Sam Swanberg, Plaintiffs, vs. Michael Killian, Franklin County Clerk and Clerk of the Superior Court, Defendants, Franklin County Superior Court No. 18-2-50285-11." CP at 3, 2. The order of appointment identifies RCW 36.27.030 as the authority for the appointment, indicating that "the Prosecuting Attorney of Franklin County is unable to discharge the duties of his office due to a disability arising from the requirements and limitations of Rules of Professional Conduct, Rule 1.7." Id. at 2. The order of appointment directs that Mr. Kamerrer shall be compensated by Franklin County for the professional services he provides to the judges.

¶ 14 Both Prosecutor Sant and Franklin County sought review in this court of the order of appointment. Ultimately, this court granted discretionary review on the issue of whether the Franklin County Superior Court judges validly issued their "Order of Appointment," signed May 21, 2018, under RCW 36.27.030.

ANALYSIS

Standard of Review

¶ 15 Respondent judges contend that this court should apply an abuse of discretion standard of review, asserting that in this "unique and local case" the superior court judges "were in the best position to decide whether the Order of Appointment was necessary" and, thus, that this court should defer to that decision. Br. of Resp'ts at 13. But this case concerns the meaning and proper application of RCW 36.27.030, under which the appointment order issued. Accordingly, review by this court is de novo. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) (meaning of a statute is a question of law reviewed de novo).

¶ 16 RCW 36.27.030 provides:

When from illness or other cause the prosecuting attorney is temporarily unable to perform his or her duties, the court or judge may appoint some qualified person to discharge the duties of such officer in court until the disability is removed.
When any prosecuting attorney fails, from sickness or other cause, to attend a session of the superior court of his or her county, or is unable to perform his or her duties at such session, the court or judge may appoint some qualified person to discharge the duties of such session, and the appointee shall receive a compensation to be fixed by the court, to be deducted from the stated salary of the prosecuting attorney, not exceeding, however, one-fourth of the quarterly salary of the prosecuting attorney: PROVIDED, That in counties wherein there is no person qualified for the position of prosecuting attorney, or wherein no qualified person will consent to perform the duties of that office, the judge of the superior court shall appoint some suitable person, a duly admitted and practicing attorney-at-law and resident of the state to perform the duties of prosecuting attorney for such county, and he or she shall receive such reasonable compensation for his or her services as shall be fixed and ordered by the court, to be paid by the county for which the services are performed.

¶ 17 In Osborn v. Grant County, this court, addressing the above statute, opined that "[t]he [superior] court can appoint a special prosecutor to represent a party only when two conditions are met. First, the prosecutor must have the authority and the duty to represent that party in the given matter. Second, some disability must prevent the prosecutor from fulfilling that duty." 130 Wash.2d 615, 624-25, 926 P.2d 911 (1996) (emphasis added). In other words, "[i]f the prosecutor has no duty ... to represent a party, the trial court cannot appoint special counsel." Id. at 625, 926 P.2d 911.

¶ 18 The prosecutor's enumerated statutory duties are found in RCW 36.27.020. Concerning those duties, Division Two of the Court of Appeals correctly observed in Fisher v. Clem, 25 Wash. App. 303, 307, 607 P.2d 326 (1980), overruled on other grounds by Brouillet v. Cowles Publ'g Co., 114 Wash.2d 788, 793-94, 791 P.2d 526 (1990), that " RCW 36.27.020 does not specifically compel the prosecutor to bring any civil suit." Accordingly, the Fisher court held that "the prosecutor's maintenance of any civil proceedings under RCW 36.27.020 is discretionary." Id.

¶ 19 This court's decision in Hoppe v. King County, 95 Wash.2d 332, 622 P.2d 845 (1980), is also instructive. There, the King County tax assessor sued the county and others challenging a property tax levy. At a preliminary hearing, the trial court ordered the appointment of special prosecutors under RCW 36.27.030, but at a subsequent hearing, the court granted defendants' summary dismissal of the complaint; the court awarded fees to the special prosecutors at another later hearing. The assessor appealed the dismissal, and the defendant county cross appealed the appointment of special prosecutors and their fee award. This court held that the prosecuting attorney had no obligation to represent the assessor and, thus, that the superior court's appointment of special prosecutors under RCW 36.27.030 was improper, as was the fee award. This court explained,

The power of the court to appoint a special prosecuting attorney is limited to cases where such an appointment is provided by statute. In order for a special prosecutor to be appointed, the prosecuting attorney must be unable to perform a duty of that office.... [N]othing in the duties of the prosecuting attorney ( RCW 36.27.020 ) requires that officer to bring an action simply because a request is made by another county officer or to provide legal representation. While RCW 36.27.020(2) does require the prosecuting attorney to "[b]e legal adviser to all county ... officers", this is not a requirement that the prosecuting attorney appear for or represent a county officer. It is certainly true that the King County Prosecuting Attorney and [the assessor] disagreed. It is also true the prosecuting attorney determined [the assessor] was not entitled to representation. This is hardly, however, a disability under RCW 36.27.030 nor is it a conflict of interest as claimed by [the assessor]. The disagreement did not give [the assessor] a warrant to obtain a special prosecutor and bring a lawsuit to assert his particular view of the law. [The assessor] was entitled to second-guess the judgment of the prosecuting attorney. He was not entitled to do so with a special prosecutor at taxpayers' expense.

Id. at 339-40, 622 P.2d 845 (emphasis added) (some alterations in original) (citations omitted). The same is true here. The Franklin County prosecutor is not required to sue a county official (e.g., the Franklin County clerk) at the request of another county official (e.g., the Franklin County Superior Court judges). Accordingly, this is not a question of conflict or disability that would trigger the availability of a court appointed special prosecutor under RCW 36.27.030. As this court succinctly stated in Osborn , "If the prosecutor has no duty ... to represent a party, the trial court cannot appoint special counsel." 130 Wash.2d at 625, 926 P.2d 911 ; see also id. at 628, 926 P.2d 911 (the prosecutor's enumerated duties (see RCW 36.27.020 ) "cannot be read so broadly as to allow the prosecutor to be legal counsel for a party in a lawsuit against the county"). Under the somewhat unusual circumstances here, the appropriate remedy is to vacate the appointment order, leaving the respondents free to pursue their separate mandamus action against the county clerk, but not at taxpayer expense.

¶ 20 We turn now to the parties' remaining arguments. First, the parties present different views of the events concerning the entry of the appointment order. Respondents characterize the order as administrative, but it is hard to see how the appointment order is merely administrative, when it purports to decide a legal question (i.e., application of RCW 36.27.030 ) and tangentially impacts a pending case (i.e., the order appoints a special prosecutor for the respondents in the separate mandamus action).

¶ 21 Petitioners focus on the in-chambers signing of the appointment order, with its absence of public scrutiny, apparent bias (i.e., the respondent judges who sign the order benefit from it), and lack of any notice or opportunity to be heard by interested parties (i.e., the prosecutor and the county), contending that for these failings, also, the appointment order must be vacated.

¶ 22 We agree with petitioners. Concerning open proceedings, petitioners contend that the electorate's selection of a prosecutor should not be cast aside behind closed doors. As this court opined in Dreiling v. Jain ,

Our state constitution requires that "[j]ustice in all cases shall be administered openly." CONST , art. I, § 10. This guarantees the public and the press a right of access to judicial proceedings and court documents in both civil and criminal cases.
....
Proceedings cloaked in secrecy foster mistrust and, potentially, misuse of power.... [T]he operations of the courts and the judicial conduct of judges are matters of utmost public concern.

151 Wash.2d 900, 908, 93 P.3d 861 (2004) (first alteration in original). Further, the public's interest in open proceedings is heightened when the matter in question calls for the expenditure of public funds. In re Dependency of M.H.P., 184 Wash.2d 741, 771, 364 P.3d 94 (2015). Here, such expenditure is the potential payment to the appointed special deputy prosecuting attorney of fees paid as unallocated funds.

¶ 23 As for notice and opportunity to be heard, petitioners correctly articulate a cognizable interest in protecting their responsibilities as elected officials from usurpation (i.e., control of budgets and expenditures for the county and the advisement on legal matters to county officials by the prosecutor). See State ex rel. Banks v. Drummond, 187 Wash.2d 157, 169, 179-80, 385 P.3d 769 (2016) (prosecuting attorney was "entitled" to bring quo warranto suit for ouster).

¶ 24 Respondents counter that there is no notice and hearing requirement applicable to RCW 36.27.030, citing State v. Tracer , 173 Wash.2d 708, 717 n.7, 272 P.3d 199 (2012). While it is true that this court rejected the State's argument that the superior court cannot appoint a substitute deputy prosecuting attorney absent a formal hearing with notice and opportunity to be heard, this court did so because the argument as presented was based on citation to foreign jurisdictions with statutory schemes for the judicial appointment of prosecuting attorneys that are different from RCW 36.27.030. See id. But, as noted, under Drummond, if the prosecutor is "entitled" to seek ouster of a usurper via a quo warranto action, the prosecutor indeed appears to have sufficient interest to trigger notice and an opportunity to be heard before any compromise of that interest occurs via an RCW 36.27.030 appointment. 187 Wash.2d at 169, 385 P.3d 769. Moreover, Tracer is distinguishable. Tracer involved a prosecutor's failure to attend a session of the court, which is governed by the second paragraph of RCW 36.27.030. See id. at 717-18, 272 P.3d 199. The appointment order here rests solely on the first paragraph of RCW 36.27.030. ¶ 25 Turning to the respondents' remaining arguments, the judges contend that regarding the Franklin County prosecutor's initial appointment of Dale Kamerrer as the judges' special deputy prosecutor, once the appointment was made, the prosecutor "lacked the authority" to later revoke his appointment. Br. of Resp'ts at 24. That is not so. Respondents' contention ignores the plain language of the statutes that authorized such appointments. RCW 36.27.040 provides the authority for such appointments. The statute states in relevant part, "The prosecuting attorney may appoint one or more special deputy prosecuting attorneys upon a contract or fee basis whose authority shall be limited to the purposes stated in the writing signed by the prosecuting attorney.... The prosecuting attorney shall be responsible for the acts of his or her deputies and may revoke appointments at will ." RCW 36.27.040 (emphasis added); see also RCW 36.16.070 ("The officer appointing a deputy ... shall be responsible for the acts of his or her appointees ... and may revoke each appointment at pleasure ." (emphasis added)). Accordingly, the prosecutor did not lack authority, as respondents contend, to terminate his initial appointment of Dale Kamerrer as special deputy prosecutor to assist respondents in settlement.

¶ 26 Respondents also rely heavily on Westerman v. Cary, 125 Wash.2d 277, 892 P.2d 1067 (1994), but that case does not require a different result. There, this court held that the appointment of a special prosecutor was proper, but that case has key factual differences. First, the Westerman prosecutor entered an appearance and undertook representation of the district court when the public defender sued the court challenging the court's new bail rule. However, despite acting as attorney for the district court, the prosecutor advocated a position directly contrary to that of the district court. Id. at 301, 892 P.2d 1067. This court noted that " RCW 36.27.020 does not except from the duty to defend those matters in which the prosecutor disagrees with his county or state client." Id. at 300, 892 P.2d 1067. The Rules of Professional Conduct required the prosecutor to withdraw if his representation of a client was materially limited by his responsibilities to another client, a third person, or his own interests. Id. Because of the prosecutor's contradictory position to his client, including his actions at trial, the superior court appropriately appointed a special prosecutor to defend the district court under RCW 36.27.030. Id. at 301, 892 P.2d 1067. This court also opined, "Where representation of two different public bodies requires the prosecutor to take directly adversary positions in the same case, a conflict exists," and "in situations which involve actual controversy (legal or factual) between the two public bodies, it would be the duty of the [prosecuting] attorney to withdraw from one representation." Id. at 300, 892 P.2d 1067 (alteration in original). By contrast, in the present case, the Franklin County prosecutor has never appeared in the separate mandamus action filed by the respondents. The prosecutor represents neither the clerk nor the respondents in that matter, and the respondent judges are the plaintiffs in the mandamus action, not the defendants. Finally, the judges in the mandamus action are not being sued for an official action they took within their powers. As discussed above, this case is more like Hoppe ; the judges are free to pursue their separate mandamus action against the clerk, but not at taxpayer expense. ¶ 27 Finally, respondents request attorney fees. A party is entitled to attorney fees on appeal if a contract, statute, or recognized ground of equity permits recovery of attorney fees at trial and the party substantially prevails. Hwang v. McMahill, 103 Wash. App. 945, 954, 15 P.3d 172 (2000). Because we vacate the appointment order, respondents have not prevailed and are not entitled to fees.

CONCLUSION

¶ 28 The primary issue in the present matter before this court is the validity of the order by which the respondent judges appointed their own special deputy prosecuting attorney under RCW 36.27.030 for use in a separate proceeding. Because the prosecutor had no duty to initiate a civil suit at the request of the respondents under the precedent as discussed, the appointment order is invalid. Accordingly, we vacate the order of appointment. We also deny respondents' request for attorney fees.

WE CONCUR:

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

Yu, J.

      The parties have adopted "ACP" as the designation for petitioner's RAP 9.11 submissions that were filed with this court on September 11, 2018.

      A similar directive was issued to the attorney appointed to represent Clerk Killian.

      Costs of the lawsuit were estimated at $14,000 to $75,000.

      This court also granted a RAP 9.11 motion to create a record for review.

      Respondents also urge this court to hold that LGR 3, the local rule directing the clerk to maintain paper files, is a lawful court rule with which the clerk must comply. Br. of Resp'ts at 14, 21. But review has not been sought of LGR 3, and the respondents admit as much. Id. at 14 ("The legality of LGR 3 is not challenged in this action."); see also Mot. for Discr. Review at 1-2 (noting that resolving the dispute between the bench and the clerk "is not before this Court in the instant case"). The current matter deals "solely" with the "validity" of the "Order of Appointment." Mot. for Discr. Review at 1, 2, 3. While the efficacy of LGR 3 is relevant to the separate mandamus action, it has no bearing on the appointment order at issue here. We decline respondents' belated request to opine on the efficacy of LGR 3.