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AGO 1952 No. 371 - August 11, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

FILIATION PROCEEDINGS -- WRITTEN STATEMENT OF MOTHER, COST OF -- AS PART OF LEGAL COSTS

The testimony of the mother in filiation proceedings, reduced to writing and signed by her, constitutes part of the transcript from the justice court to the superior court, and cost of its preparation may be charged as part of legal costs in the justice court proceeding.

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                                                                 August 11, 1952

Honorable Charles O. Carroll
Prosecuting Attorney
King County Washington
County-City Building
Seattle, Washington                                                                                                              Cite as:  AGO 51-53 No. 371

Attention:  Laurence D. Regal

Dear Mr. Carroll:

            We acknowledge receipt of your request of July 17, 1952, for an opinion of this office on the following question:

            "Our question then is whether the legislature in requiring the testimony of the complaining witness in a filiation case to be '. . . reduced to writing by the justice, read carefully to the witness and be signed by her, . . .' intended that the justice transcribe such testimony in longhand; or did the legislature also intend that the testimony could be transcribed stenographically?

            "If, in your opinion, the latter is the case would it not also follow that the cost of such transcription constitutes a valid charge to be added to the cost of justice court proceedings?",

             [[Orig. Op. Page 2]]

            and our conclusions are:

            The testimony of the mother in filiation proceedings, reduced to writing and signed by her, constitutes part of the transcript from the justice court to the superior court, and cost of its preparation may be charged as part of legal costs in the justice court proceeding.

                                                                     ANALYSIS

            You have stated that in filiation proceedings held under the authority of RCW 26.24 the justice of the peace has a court reporter transcribe the testimony given at the hearing, but has not included the reporter's fee in the cost bill, and upon being ordered by the superior court to pay all costs, both in the justice of the peace and superior courts, the defendant does not pay for the cost of the transcript, thus requiring your office to defray said costs from your budget.

            Examination of chapter 26.24 RCW reveals that the position of the justice of the peace is more that of a committing magistrate than as presiding judge; he is required, in the presence of the accused, to take the testimony of the mother, under oath, reduce the same to writing and have her sign her statement.  If he then determines that sufficient cause appears, the justice of the peace then binds the accused over to the superior court, and, in the language of RCW 26.24.020, which we quote in part:

            "The justice shall transmit the bond, together with the transcript of his proceedings, the complaint and the other papers in the case, without delay to the clerk of the superior court of the county."

            Specifically in reference to the testimony of the mother, RCW 26.24.050 provides:

            "The testimony of the mother, or mother to be, shall be reduced to writing by the justice, read carefully to the witness and be signed by her, and shall bereturned to the justice of the superior court with the other papers in the proceeding, to be used by either party thereto."  (Emphasis ours),

            and in RCW 26.24.060 it is provided that issues shall be joined thereon as provided in civil actions.  Upon hearing in the superior court, all costs, both in the superior and in the justice courts, may be ordered to be paid by the defendant.

             [[Orig. Op. Page 3]]

            So far as the justice court is concerned, there appears to be no statutory requirement that any statement or testimony except that of the mother be taken or reduced to writing.

            By examination of RCW 12.36.050, providing for transcript of the proceedings in the justice court being transmitted to the clerk of the superior court, it will be noted that the only provisions are that the transcript shall contain all entries made in the justice's docket relating to the case, together with all the process and other papers relating to the case, and in such civil appeals trial isde novo on the pleadings in justice court; thus there is no provision made or need for a statement of facts of testimony in the justice court being transmitted to the superior court.

            Supreme court decisions in bastardy and filiation proceedings are of little assistance in the present problem as your request for this opinion has pointed out.  State v. Tieman, 32 Wash. 294, 73 Pac. 375, in which the court held that the older law was invalid, held that the proceedings were primarily civil in nature rather than criminal;State v. White, 119 Wash. 512, 205 Pac. 838, does not discuss the origin of the action in the justice court, and the justice court is not mentioned inState v. Taylor, 39 Wn. (2d) 751,238 P. (2d) 1189.  The position of the court taken in the Tieman case,supra, namely, that such proceedings are civil in nature, was affirmed.  Examination of the records in the White andTaylor cases in the possession of the clerk to the supreme court revealed that no cost bills, except for statutory costs, were filed, and it is interesting to note that only the complaint and statement under oath of the mother appear to have been transmitted from the justice court to the superior court in each case, and statement of the mother under oath in each case was short.

            There being no case law to assist in determining your problem, the statutes setting up the filiation proceedings must provide the answer, and it would appear that inasmuch as the justice of the peace is required to take the statement of the mother under oath, reduce it to writing, and require her signature thereto, together with the requirement that upon the matter being transmitted to the superior court said statement shall be returned by the justice of the peace to the superior court with the other papers in the proceeding to be used by either party thereto, the conclusion must follow that said statement under oath makes up part of the papers relating to the case which are required to be made by the justice and included in his transcript to the superior court.  It would therefore  [[Orig. Op. Page 4]] follow that said statement of the mother is required to be transmitted to the superior court and is properly part of the transcript.  And the cost of preparation of it should be included in the cost bill of the justice court proceedings.

Very truly yours,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General

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