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AGLO 1973 No. 64 - June 15, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
COURTS ‑- JUSTICE COURT DISTRICT ‑- ELECTION ‑- COUNTY COMMISSIONERS ‑- AUTHORITY
 
The county commissioners of a fifth class county having a 1970 census population of 15,796 inhabitants does not have the authority to provide for the election of a single, full time judge to serve a justice court district encompassing the entire county.
 
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                                                                   June 15, 1973
  
Honorable Anton J. Miller
Prosecuting Attorney
Pacific County
P.O. Box 563
Raymond, Washington 98577
                                                                                                               Cite as:  AGLO 1973 No. 64
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
 
            Do the county commissioners of Pacific county, a fifth class county having a 1970 census population of 15,796 inhabitants, have the authority to provide for the election of a single, full time judge to serve a justice court district encompassing the entire county?
 
            We answer this question in the negative.
 
                                                                     ANALYSIS
 
            As we understand it, Pacific county has recently adopted the provisions of the 1961 justice court act, chapter 292, Laws of 1961, under which it is allotted a total of three justices of the peace.  See, RCW 3.34.010.  In fact, however, you have advised us that it has only utilized two of these allotted judges ‑ each serving on a part time basis because of the over-all population of the county.  Accord, RCW 3.34.040 which provides as follows:
 
            "Justices of the peace serving districts having a population of forty thousand or more persons, and justices receiving a salary greater than nine thousand dollars for serving as a justice, shall be deemed full time justices and shall devote all of their time to the office and shall not engage in the practice of law.  Other justices shall devote sufficient time to the office to properly fulfill the duties thereof and may engage in other occupations but such justice shall not use the  [[Orig. Op. Page 2]] office or supplies furnished by the judicial district for his private business but shall maintain a separate office for his private business nor shall he use the services of any clerk or secretary paid for by the county for his private business."
 
            You have further advised us these two district court judges have recently tendered their resignations and that the county commissioners are now desirous of replacing them with a single, full time district court judge if this is legally permissible.  In support of the possibility that this might be done, you have directed our attention to § 2, chapter 14, Laws of 1973, lst Ex. Sess., by which the legislature amended another section of the justice court act, RCW 3.34.020, to read as follows:
 
            "In each justice court district having a population of forty thousand or more but less than sixty thousand, there shall be elected one full time justice of the peace; in each justice court district having a population of sixty thousand but less than one hundred twenty-five thousand, there shall be elected two full time justices; in each justice court district having a population of one hundred twenty-five thousand but less than two hundred thousand, there shall be elected three full time justices; and in each justice court district having a population of two hundred thousand or more there shall be elected one additional full time justice for each additional one hundred thousand persons or fraction thereof:  Provided, That if a justice court district having one or more full time justices should change in population, for reasons other than change in district boundaries, sufficiently to require a change in the number of judges previously authorized to it, the change shall be made by the county commissioners without regard to RCW 3.34.010 as now or hereafter amended and shall become effective on the second Monday of January of the year following:  Provided further, That upon any redistricting of the county thereafter RCW 3.34.010, as now or hereafter amended, shall again designate the number of justices in the county:  Provided, That in a  [[Orig. Op. Page 3]] justice court district having a population of one hundred twenty thousand people or more adjoining a metropolitan county of another state which has a population in excess of five hundred thousand there shall be one full time justice in addition to the number otherwise allowed by this section and without regard to RCW 3.34.030 or resolution of the county commissioners: Provided further, That the county commissioners may by resolution make a part time position a full time office if the district's population is not more than ten thousand less than the number required by this section for a full time justice of the peace:  Provided further, That the county commissioners may by resolution provide for the election of one full time justice in addition to the number of full time justices authorized hereinbefore."  (Emphasis supplied.)
 
            We cannot, however, read this amended statute as having any bearing upon the situation described in your letter.  Under both this provision and RCW 3.34.040, quoted earlier, a justice court district can only be served by a full time district court judge if it has a population of 40,000 or more inhabitants.  In fact RCW 3.34.020, supra, is, throughout, applicable only to such districts as have at least this minimum population.
 
            All that the above underscored 1973 amendatory proviso does, in our judgment, is to authorize the board of county commissioners of a county already having at least one full time district court judge on the basis of its population to provide, by resolution, for the election of one additional full time judge for its county or any district of 40,000 or more inhabitants situated therein.  Thus, in our judgment, your question (as above paraphrased) must be answered in the negative.
 
            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
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