¶20
J.M. Johnson, J.(concurring) — Since recall of public officials is a Washington constitutional right, the use of public funding to oppose exercise of that right is normally unlawful. There are statutes forbidding governments such as the Seattle School District (District) from spending any public money or staff time opposing a recall. By allowing the District to intervene and oppose this recall, the trial judge allowed the District to accomplish the same end— likely with its limited taxpayer funds.4
¶21 Washington voters through Initiative 134 (I-134) have decided to prohibit government from spending public money on politics, whether the money is in the form of cash or public-employee time. RCW 42.17.128 forbids use of public funds to finance political campaigns, and RCW 42.17.130 prohibits the use “directly or indirectly” of public facilities or employee time to oppose a ballot measure, specifically including recall. RCW 42.17.020(4).
¶22 But attracting talent to local government is important enough that it is also policy to avoid unnecessarily subjecting members to some costs. Thus, RCW 4.96.041(3) sometimes allows the target of such recall to request representation in a determination of the recall petition’s sufficiency and formulation of a fair title. In re Recall of Pearsall-Stipek, 129 Wn.2d 399, 402, 918 P.2d 493 (1996). To make sure such request is not just a veiled use of public funds to oppose the recall, the law requires both the local legislative body and the government attorney approve participation in the litigation. RCW 4.96.041(3). As noted below, a public official cannot approve such approval to benefit himself.
*513¶23 Here, the District did not follow this procedure before it used (and continues to use) public money to intervene and oppose recall. The statute requires first getting a vote of a quorum of nonconflicted members of the board and then the District attorney approves. Obviously, any affected member, here a majority of the board, would be prohibited by conflict of interest law from authorizing a contract to his or her benefit (see RCW 42.23.030). The failure to get the required approval means any expenditure violates other law, especially provisions of I-134, now chapter 42.17 RCW, cited above. The District claims here it is not technically representing the members or that the interests diverge. The record here does not establish any factual determination that the interests actually diverge. See Order Granting Seattle School District’s Mot. to Intervene. The trial judge had no discretion to allow the District to intervene.
¶24 The District claims that Eric Dawson assigned error to the intervention but did not argue it in his first appeal brief. RAP 10.3(a)(4); see Ang v. Martin, 154 Wn.2d 477, 487, 114 P.3d 637 (2005). We have discretion to decide an issue a party fails to argue in its initial brief, especially where, as here, the party raised it below and addresses it in a reply brief. State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995).
¶25 The District also rejoins that the case is moot because the election is over. This argument ignores the established exception to mootness for cases that have the capability of repetition but evading review. De Funis v. Odegaard, 84 Wn.2d 617, 628, 529 P.2d 438 (1974). Complaints over elections often fit neatly into this exception because by the time appeal is heard, the election is over. Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969).
f 26 So the trial judge abused his discretion by allowing the District intervention. This error is not determinative in the litigation at hand. Citizens may recall their elected officials only for misfeasance, malfeasance, or violating the *514oath of office. Wash. Const, art. I, §§ 33-34; RCW 29A.56-.110. Closing and selling Martin Luther King Elementary School did not constitute this level of improper conduct.
¶27 We ought not turn a blind eye to a government’s misconduct or misuse of limited taxpayer resources. Recall in Washington is not just a statutory right, but a constitutional right. Wash. Const, art. I, §§ 33-34. When a government illegally spends tax money to oppose exercise of a constitutional right, there is an injustice of constitutional dimension. The courts must diligently guard against such violation. With that admonishment, I concur.
Sanders, J., concurs with J.M. Johnson, J.
Reconsideration denied February 13, 2008.
The District’s representation may have been pro bono, but the record does not support this conclusion.