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Stalemate over prosecutor likely to continue

It’s looking more likely than ever that Gov. Jay Inslee may be forced to appoint the position for Grays Harbor Prosecutor, although there may be a Constitutional snag in that plan, too.

The Grays Harbor County commissioners appointed Montesano attorney Vini Samuel to the position on Oct. 21. But she doesn’t really want the post because she thinks friend and Deputy Prosecutor Katie Svoboda should have been picked.

At the same time, she doesn’t really want to tell the commissioners formally that she doesn’t want it because it could kick off a number of legal maneuvers that dives into murky legal waters. So, she hasn’t responded to the commissioners’ letter appointing her to the position. That leaves everything in a bit of a stalemate.

“There are three options I would have, one is I can accept, one is I can decline and one is not to do anything,” Samuel told the Grays Harbor Democrats during their recent meeting in her first comments on the matter in weeks. “And it’s an interesting place to be put.”

When Prosecutor Stew Menefee retired from the position on September 30, it kicked off a process where the Grays Harbor Democrats chose a list of three names the Democrats picked for the county commissioners to choose their next prosecutor. Samuel was the third name on it. Svoboda was the Democrats’ top choice for the job. George Smylie, an attorney for the state, was also on the list.

Attorney Michael Spencer, a former prosecutor who actively campaigned for the spot, was left off the list. That’s created quite a bit of criticism in legal and political circles.

Aberdeen attorney Wayne Hagen distributed a memo to the county commissioners, arguing that if Samuel declines the post, then it creates a new vacancy for the post.

“In the present case, the authority of the County Commissioners was to appoint one of the three nominees,” Hagen wrote. “Now that they have appointed Ms. Samuel, the office has been filled. Once appointed, the appointee must undertake the oath of office. lf she fails to do so, a new vacancy has been created. At that point, the County Commissioners would notify the Democratic Party an appointment has occurred, the appointee failed to take the oath of office, and, therefore, a new vacancy has occurred, requiring the submission of a new three person list.”

Samuel, Smylie and Svoboda all contest Hagen’s opinion. Samuel notes that Hagen endorsed Spencer and was creating an “advocacy opinion” using “description language, not real law” and was “jumping on to lily pads trying to create new constitutional law since none really exists. He’s taking a leap here.”

Svoboda and Samuel note that the laws and judicial rulings surrounding when a vacancy is created are pretty strict. In 1980, then-Attorney General Slade Gorton issued an opinion noting that when an elected Clerk in Clark County couldn’t post a required bond to keep the position, the position didn’t even create a vacancy and the prior clerk remained the incumbent. Hagen told The Vidette he would review the opinion.

Samuel told the Grays Harbor Democrats that given the lack of case law in this specific case, it may make sense for her to do absolutely nothing and hope the clock runs out and this matter ends up in the governor’s hands.

“If I decline and the commissioners choose not to stay with the current list, I’m pretty sure there will be a lawsuit,” Samuel said. “And here’s my concern, that lawsuit will cost money. I don’t want us to be the test case. I don’t think anyone wants us to be the test case.”

Samuel says she thinks it would set up a pretty dangerous precedent if county commissioners from anywhere in the state, not just Grays Harbor, are allowed to keep sending back the matter to the political parties to come up with new lists.

The question then becomes, is the clock for this to go to the governor even still ticking?

The Washington state Constitution states that once a vacancy has been created, the list of three names that the political party created gets forwarded on to the county legislative authority for appointment. However, if the county commissioners “do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter” appoint a person from the list of three names previously provided. The provisions are silent as to whether Samuel has to actually respond.

In this case, the county commissioners did agree on a name within 60 days. Samuel just hasn’t responded. The 60-day clock runs out on Nov. 29. If the position is still vacant by that date, does that mean the governor’s 30-day clock will start or did the original 60-day clock stop as soon as the appointment was made?

It’s the latest question on the minds of attorneys with the Grays Harbor Bar Association, many of which support Spencer. And it’s a question for Inslee’s attorneys and likely the Attorney General’s Office when the 60-day clock stops.

Potentially, the position could stay vacant until Samuel settles on what she wants to do. At a minimum, the position’s filing period opens up in May and the election is next November. Meantime, Deputy Prosecutor Gerald Fuller is the acting prosecutor during this whole mess — a role some wonder if he’ll be forced to stay in for the next year.

County Commissioner Frank Gordon was chastised a bit by members of the Grays Harbor Democratic Party last week. He said he honestly expected a formal censure of some sort for deciding to appoint Samuel to the position and not Svoboda.

Svoboda is staying positive and she was embracing a quote that Gordon used describing Svoboda as “Our Girl Katie.”

The full quote from Gordon after the Oct. 21 commission meeting stated, “We’re just going to have Vini on board for that short term so that the prosecutor’s office can keep running smoothly and it gives the choices for our girl Katie and others to do it and let the voters of the Harbor determine who is going to be our long-term prosecutor.”

Svoboda helped distribute buttons at the Democratic meeting stating, “I’m voting for Our Girl Katie for Prosecutor.”

She explained, “When Commissioner Gordon had a quote saying ‘Our Girl Katie,’ my dad took issue with it saying, ‘You’re not their girl, you’re our girl.’ But, then my mom chimed in and said, ‘But sweetie, you’ve never been a stranger and everyone is invested in you.’ So, if being ‘our girl’ means I’m Grays Harbor’s girl then I own it. And I decided to take it back.”

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