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AGLO 1976 No. 30 - April 23, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- PROSECUTING ATTORNEY ‑- CORONER ‑- SERVICE BY PROSECUTOR AS CORONER IN FOURTH CLASS COUNTY

(1) Notwithstanding § 1, chapter 86, Laws of 1973, Ex. Sess., the prosecuting attorney of a fourth class county is still required to serve as ex officio county coroner.

(2) Such prosecuting attorney is authorized to appear and defend the county in an action involving alleged misconduct by the coroner or his deputies.

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

                                                                   April 23, 1976

Honorable Andrew C. Braff
Prosecuting Attorney
Stevens County
P.O. Box 390
Colville, Washington 99114                                                                                                               Cite as:  AGLO 1976 No. 30

Dear Sir:

            This is written in response to your recent request for our opinion on two questions which we paraphrase as follows:

            (1) In view of the provisions of § 1, chapter 86, Laws of 1973, Ex. Sess., is the prosecuting attorney of a fourth class county still required to serve as ex officio county coroner?

            (2) In the event that question (1) is answered in the affirmative, is the prosecuting attorney authorized to appear and defend the county in an action involving alleged misconduct by the coroner or his deputies?

            We answer both of the foregoing questions in the affirmative.

                                                                     ANALYSIS

            RCW 36.16.030 provides that in counties of the fourth, fifth, sixth, seventh, eighth and ninth classes, ". . . no coroner shall be elected and the prosecuting attorney shall be ex officio coroner: . . ."

            In an opinion dated November 23, 1926, to the prosecuting attorney of Island county [[to James Zylstra]](copy enclosed), this office concluded that the legislature, by its enactment of the foregoing provision pursuant to chapter 148, Laws of 1925, Ex. Sess., had not abolished the office of county coroner in those counties specified; instead, we said that this legislation

            ". . . continues the offices of prosecuting attorney and coroner separate,  [[Orig. Op. Page 2]] distinct and unchanged except that one person holds both offices instead of the offices being held by two persons."

            Question (1):

            Your first question involves the relationship between RCW 36.16.030,supra, and RCW 36.27.060.  The latter statute deals, basically, with the delineation between full time and part time prosecuting attorneys; i.e., those prosecuting attorneys who are required to serve full time and ". . . not engage in the private practice of law . . ." and those who are not so restricted.

            Prior to January 13, 1975, when chapter 86, Laws of 1973, Ex. Sess., took effect, RCW 36.27.060 read as follows:

            "The prosecuting attorneys and their deputies of class three counties and counties with population larger than class three counties shall serve full time and shall not engage in the private practice of law:  PROVIDED, That deputy prosecuting attorneys in counties of the second class and third class may serve part time and engage in the private practice of law if the board of county commissioners so provides."

            By its passage of the foregoing 1975 amendment, however, the legislature extended the scope of this statutory requirement, and correlative prohibition, to include the prosecuting attorneys of fourth class counties as well, effective as of the second Monday in January, 1975 (January 13, 1975) when new terms of office commenced.  In making this change, however, the legislature did not, at the same time, amend so much of RCW 36.16.030, supra, as requires the prosecuting attorney of a county of the fourth class or below to serve, ex officio, as county coroner.1/   Your initial question is whether, in view of all of this, the prosecuting attorney of a fourth class county is still required to perform the duties of county coroner as well.  In our opinion this question is answerable in the affirmative.

            All that RCW 36.27.060,supra, means, in our opinion, is that the prosecuting attorneys of fourth class counties (as well as those of larger counties) are now required to devote their full time to the performance of the duties of their office ‑ as opposed to serving on a part time basis and being permitted to conduct a private law practice on the outside.  But under RCW 36.16.030,supra, one of the  [[Orig. Op. Page 3]] duties of a fourth class county prosecuting attorney remains that of serving, ex officio, as county coroner.  Therefore, until that latter statute is also amended it will remain a function of the now "full time" prosecuting attorney of a fourth class county to serve, ex officio (i.e., by virture of his office) as county coroner of that county.

            Question (2):

            Your second question, as we understand it, arises by reason of the following language of RCW 36.24.170:

            "The coroner shall not appear or practice as attorney in any court, except in defense of himself or his deputies."

            Although reenacted by chapter 4, Laws of 1963, as a part of the legislature's recodification of Title 36 RCW relating to counties, our research discloses that RCW 36.24.170 actually originated during territorial days and owes its present text to the provisions of § 4, chapter 45, Laws of 1891. Moreover, this statute has never been construed in derogation of the prosecuting attorney's specific duties, under RCW 36.27.020(3) and (4), to appear for and represent the county ". . . in all . . . civil proceedings in which . . . his county . . . may be a party . . ." and to ". . . defend all suits brought against . . . his county . . ."

            Accordingly, having answered your first question in the affirmative we likewise answer your second question.  Even though the prosecuting attorney of a fourth class county is no longer entitled to conduct an outside private legal practice it remains his duty, under RCW 36.27.020, to appear and defend his county in all civil actions against it ‑ including such actions as arise by reason of the alleged misconduct of the county coroner or his deputies.  And this is so, as before, notwithstanding the fact that the prosecuting attorney in such a county also himself serves, ex officio, as the coroner.

             [[Orig. Op. Page 4]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/The classification of counties, on the basis of population, is provided for by RCW 36.13.010 with counties of the fourth class therein specifically being defined as ". . . counties containing a population of 18,000 and less than 40,000 . . ."

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