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AGO 1957 No. 50 - April 22, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

COURTS ‑- COURT COMMISSIONERS ‑- QUALIFICATIONS ‑- POWERS ‑- INCOMPATIBILITY WITH OFFICE OF PROBATION OFFICER --INCOMPATIBLE OFFICES ‑- COURT COMMISSIONER AND CHIEF PROBATION OFFICER

(1) A court commissioner need not be a lawyer.
(2) The positions of court commissioner and chief probation officer are incompatible.
(3) A court commissioner is authorized to hear and determine all matters properly within the jurisdiction of the juvenile court.

                                                                   - - - - - - - - - - - - -

                                                                   April 22, 1957

Honorable John J. Lally
Prosecuting Attorney of Spokane County
Spokane County Courthouse
Spokane, Washington                                                                                                                Cite as:  AGO 57-58 No. 50


Attention:  !ttMr. Donald N. Olson

            Civil Deputy

Dear Sir:

            By letter of March 27, 1957, previously acknowledged, you requested the opinion of this office on the following questions:

            (1) Must a court commissioner be a lawyer?

(2) Are the positions of court commissioner and chief probation officer incompatible and, if not, may such an appointee receive a salary for his duties as court commissioner in addition to his salary as chief probation officer?

             [[Orig. Op. Page 2]]

(3) Would a court commissioner be authorized to hear and determine all matters properly within the jurisdiction of the juvenile court?

            We answer question (1) in the negative.  As to question (2), it is our opinion that the positions of court commissioner and chief probation officer are incompatible.  Therefore, it is not necessary to answer the second part of question (2).  We answer question (3) in the affirmative.

                                                                     ANALYSIS

            We shall treat these questions in the order asked.

            (1) Article IV, § 23, of the constitution of the State of Washington provides as follows:

            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law."

            RCW 2.24.010 prescribes the qualifications of the office of court commissioner as follows:

            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, a court commissioner for said county.  He shall be a citizen of the United States and an elector of the county in which appointed, and shall reside at the county seat.  He shall hold his office during the pleasure of the judge appointing him."

            Neither in the constitution nor in the statute is there any provision that a court commissioner must be an attorney.  Although it is true that under the constitutional provision above quoted and under RCW 2.24.040 and 13.04.030 a court commissioner is granted rather extensive judicial powers and authority, and Article IV, § 17, of the Washington constitution  [[Orig. Op. Page 3]] provides that judges of the supreme court and the superior courts must have been admitted to practice in the courts of record of this state in order to be eligible to the office of judge, we do not believe that this requirement can be extended by implication to the office of court commissioner.

            "The right of a citizen to hold public office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law."  (67 C.J.S. § 11, p. 124.)

            Our Washington court has held in State ex rel. Weston v. Schragg, 158 Wash. 74, that eligibility to office must be presumed, and any doubt as to eligibility of any person to holding office must be resolved against the doubt.

            (2) In an opinion of the attorney general dated January 26, 1953, directed to the prosecuting attorney of Thurston County, the rules governing the problem of incompatibility of public offices are thoroughly treated.  We enclose a copy of that opinion.  Generally, it may be stated that public offices are incompatible when the performance of the duties of one interferes in some way with the duties of the other and there is an inconsistency in the functions of the two offices.

            In order to determine whether the duties of probation officer and those of court commissioner are incompatible so that they cannot be exercised by the same individual, we must examine those duties as prescribed by statute.  RCW 2.24.040 provides in pertinent part that:

            "The court commissioner shall have power, authority and jurisdiction, concurrent with the superior court and the judge thereof, in the following particulars:

            "(8) To hear and determine all complaints for the commitment of minors to the state training school, or state school for girls with all powers conferred upon the superior court in such matters;"

            RCW 13.04.040 provides with regard to the powers of probation officers as follows:

             [[Orig. Op. Page 4]]

            "The court shall appoint or designate one or more persons of good character to serve as probation officers during the pleasure of the court, said probation officers to receive no compensation from the public treasury.  In case a probation officer shall be appointed by any court, the clerk of the court, if practicable, shall notify him in advance when a child is to be brought before said court.  The probation officer shall make such investigation as may be required by the court.  The probation officer shall inquire into the antecedents, character, family history, environments and cause of dependency or delinquency of every alleged dependent or delinquent child brought before the juvenile court and shall make his report in writing to the judge thereof.  He shall be present in order to represent the interests of the child when the case is heard; he shall furnish the court such information and assistance as it may require, and shall take such charge of the child before and after the trial as may be directed by the court; . . .

            "All probation officers shall possess all the powers conferred upon sheriffs and police officers to serve process and make arrests for the violation of any state law or county or city ordinance, relative to the care, custody and control of delinquent and dependent children."

            It is our opinion that if the functions of court commissioner and probation officer were exercised by the same individual, it is likely in certain cases involving juvenile offenders that a situation would exist where this individual would occupy simultaneously the positions of investigating officer, "attorney" for the defendant, custodial officer, process server, arresting officer and judge.  We believe that this presents a clear case of incompatibility of officers, and that the occupancy by one person of both offices is not consistent with the impartial administration of justice.

            As already observed, this conclusion makes it unnecessary to consider the second part of question 2.

             [[Orig. Op. Page 5]]

            (3) RCW 13.04.030 provides in part as follows:

            ". . . In counties in which there is no resident judge of the superior court, the court commissioner shall have the power, authority and jurisdiction, concurrent with the superior court and the judge thereof, to hear all matters relating to dependent and delinquent children, and to enter judgment and make orders with the same power, force and effect as any judge of the superior court, subject to review only by the judge of the superior court, on motion or demand filed by any party in interest within ten days from the entry of the order or judgment by the court commissioner."

            Despite the restrictive language contained in the first sentence of the quoted portion of the statute, we do not believe that this provision can be limited in its application to "counties in which there is no resident judge of the superior court."  It was held inHoward v. Hanson, 49 Wash. 314, that Article IV, § 23, of the constitution cannot be limited by an act of the legislature since "This grant of power is supreme in the courts and the legislature is without power to take it away."

            Our Washington court has held on several occasions that under Article IV, § 23, of our state constitution, which is self-executing, a court commissioner has power to adjudge all cases where a jury is not required.  Peterson v. Dillon, 27 Wash. 78;State ex rel. Lockhart v. Claypool, 132 Wash. 374,Ankeny v. Pomeroy Grain Growers, Inc., 170 Wash. 1.

            In theLockhart case the court, after quoting Article IV, § 23, stated as follows:

            "Under this provision the court commissioner is given: First, power 'to perform like duties as a judge of the superior court at chambers, subject to revision by said judge;' second, power 'to take depositions;' and, third, power 'to perform such other business connected with the administration of justice as may be prescribed by law.'

            "The question, more particularly, is, What powers are conferred upon a judge at chambers?  Was it the  [[Orig. Op. Page 6]] intention of the makers of the constitution to give the commissioners such powers as then existed by law, or was it intended to give them such powers as might in the future be conferred upon a judge at chambers?  At the time the constitution was adopted, the powers of a judge at chambers, as defined by § 2138 of the code of 1881, p. 368, were these:

            "'The several judges of the district courts in this territory, and each of them in their respective districts, may, at chambers, in vacation, entertain, try, hear and determine, all actions, causes, motions, demurrers and other matters not requiring a trial by jury; and all rulings, orders, judgments and decrees, made or rendered by a judge of the district court at chambers, may be entered of record in vacation, and shall have like force and effect as though made or rendered at a regular term of the district court.'

            "InPeterson v. Dillon, 27 Wash. 78, 67 Pac. 397, speaking with reference to whether the court commissioners had such power as a judge at chambers at the time of the adoption of the constitution, it was said:

            "'Under our present system, when an act of a judicial nature is performed by the judge, it is, in contemplation of law, done in open court, although the act may in reality be done in the private room or office of the judge.  When the framers of the constitution used the term "at chambers" in speaking of the duties performed by the judges at chambers, they had in view a certain object, and, in order to ascertain what this was, we must have recourse to the meaning of the term "at chambers" as it was understood at the time this particular provision of the constitution was framed.  The courts established by the constitution were to supersede the territorial courts.  The men who framed the constitution were familiar with the powers then exercised by the judges at chambers, and in using that term it is  [[Orig. Op. Page 7]] fair to infer that they had reference to such powers.'"

            The only question thus presented is whether or not a "judge at chambers" at the time the constitution was framed could exercise the same powers relating to delinquent and dependent children as are provided in RCW chapter 13.04.  It is true that our laws relative to dependent and delinquent children had not been enacted at the time our constitution was adopted, nor were "juvenile courts" established until after that time.  It is our opinion, however, that these laws are actually nothing more than a codification of the common law existing in the territory prior to the adoption of the Washington constitution.  It is well established that courts of equity, or courts exercising equity jurisdiction, have inherent jurisdiction over the custody, care and control of infants independent of statute.  43 C.J.S., Infants, § 51;Weber v. Doust, 84 Wash. 330; In re Hudson, 13 Wn. (2d) 673.

            We therefore conclude that at the time of the framing of our constitution a "judge at chambers" could exercise all the powers now granted to "juvenile courts."  Article IV, § 23, gives to court commissioners these same powers.

            We hope this opinion will be of assistance in resolving the questions presented.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


DAVID S. BLACK
Assistant Attorney General

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