(dissenting) — I agree with Justice Alexan*657der that, on the merits, deputy prosecutors are public employees who do not fall within the exception for employees appointed for “a specified term of office.” Accordingly, the Public Employment Relations Commission (PERC) does have jurisdiction over the deputy prosecutors. As to the threshold issues in this case, I agree with Justice Talmadge that the court had no authority to issue a writ of prohibition under RCW 7.16.360. However, I agree with the majority that the trial court did not abuse its discretion in denying the Union’s motion to intervene. I write separately to take issue with the majority’s assertion that “[w]e have held in cases dealing with the jurisdiction of PERC that exhaustion of administrative remedies is not required.” Majority at 652.1 fail to see any such holding articulated in any of the cases upon which the majority relies.
The majority reasons that PERC may not consider questions of jurisdiction because the power to determine agency jurisdiction is ultimately vested in this court. Majority at 652 (citing Local 2916, IAFF v. Public Employment Relations Comm’n, 128 Wn.2d 375, 379, 907 P.2d 1204 (1995)). Yet, the court’s role as the ultimate arbiter of the scope of agency authority only reinforces the notion that PERC should make the initial determination. The Administrative Procedure Act, RCW 34.05 (APA), expressly contemplates that judicial review may be sought to resolve questions of agency jurisdiction. RCW 34.05.570(3)(b). Indeed, in Local 2916 the jurisdictional challenges were first brought before PERC hearing examiners, upheld by PERC on review, and appealed to the superior court before ultimate resolution by this court. Local 2916, 128 Wn.2d at 378-79. I am unable to follow the majority’s reasoning that a case in which administrative remedies were exhausted somehow stands for the proposition that failure to exhaust is not required.
The majority also erroneously relies on Zylstra v. Piva, 85 Wn.2d 743, 539 P.2d 823 (1975). In Zylstra, juvenile court employees challenged the applicability of the Public Employees’ Collective Bargaining Act, RCW 41.56. The court held that the plaintiffs’ failure to exhaust administra*658tive remedies under the act did not bar their access to the courts because remedies available under the act would be futile. Zylstra, 85 Wn.2d at 745. The APA expressly excuses the exhaustion requirement where exhaustion would be futile. RCW 34.05.534(3)(b). However, the majority does not discuss, let alone demonstrate, such futility here. Therefore, its reliance on Zylstra is misplaced.
Lastly, the majority cites to Washington State Bar Ass’n v. State, 125 Wn.2d 901, 890 P.2d 1047 (1995) in which we considered a challenge to PERC jurisdiction which was brought directly before this court. At no point does that opinion address exhaustion. It is quite a leap to suggest that this court’s failure to raise the issue sua sponte is tantamount to a “holding” on the matter.
We have never held that exhaustion of administrative remedies may be excused for challenges to PERC jurisdiction. In fact, the APA resolves the exhaustion question in this case. RCW 34.05.510 provides that, subject to exceptions not applicable here, chapter 34.05 “establishes the exclusive means of judicial review of agency action . . . .” According to RCW 34.05.534, “[a] person may file a petition for judicial review under this chapter only after exhausting all administrative remedies . . . .” Challenges to PERC jurisdiction are not among the few exemptions to this requirement. See id. Unless and until the majority is able to demonstrate the applicability of one of the statutory exceptions to the exhaustion requirement, we should not entertain the challenge to PERC’s exercise of jurisdiction in this matter.