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November 4, 1971
The Supreme Court
State of Washington
Temple of Justice
Olympia, Washington 98504
Attention: Mr. William M. Lowry, Clerk
Cite as: AGLO 1971 No. 124 (not official)
This is written in response to your request for our opinion regarding the procedures to be followed in computing the compensation of a retired superior court judge serving as a pro tempore judge of the Washington Supreme Court under Article IV, § 2 (a), Amendment 38, of the state constitution. We paraphrase your questions as follows:
(1) Is the compensation payable to a retired judge of the superior court serving as a pro tempore judge of the supreme court to be computed on the basis of the formula set forth in RCW 2.08.180?
(2) If question (1) is answered in the negative, what is the proper method of computing the aforesaid compensation?
Article IV, § 2 (a) of the Washington constitution, which was added thereto in 1962 through the adoption of Amendment 38, provides as follows:
"When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court, and to authorize any superior court judge to perform judicial duties in any superior court of this state."
At its first session thereafter, the legislature implemented this constitutional provision by its enactment of chapter 40, Laws of 1963. Section 2 thereof, now codified as RCW 2.04.250, contains the following provision regarding the remuneration of "temporary judges of the supreme court":
[[Orig. Op. Page 2]]
(1) A superior court judge serving as a judge pro tempore of the supreme court as provided in RCW 2.04.240 shall receive, in addition to his regular salary, his actual traveling expenses not to exceed one round trip at ten cents per mile from his residence during his term of service as judge pro tempore and twenty dollars per day in lieu of subsistence and lodging.
"(2) A retired judge of a court of record in this state serving as a judge pro tempore of the supreme court as provided in RCW 2.04.240 shall receive, in addition to any retirement pay he may be receiving, the following compensation and expenses:
"(a) His actual traveling expenses not to exceed one round trip at ten cents per mile from his residence during his term of service as judge pro tempore and twenty dollars per day in lieu of subsistence and lodging.
"(b) During the period of his service as a judge pro tempore, an amount equal to the salary of a regularly elected judge of the court in which he last served for such period diminished by the amount of retirement pay accrued to him for such period.
"(3) Whenever a superior court judge is appointed to serve as judge pro tempore of the supreme court and a visiting judge is assigned to replace him, the full amount of the actual traveling and living expenses incurred by such visiting judge as a result of such assignment shall be paid upon application of such judge from the appropriation of the supreme court.
"(4) The provisions of RCW 2.04.240 and 2.04.250 shall not be construed as impairing or enlarging any right or privilege acquired in any retirement or pension system by any judge or his dependents."
The other statute which is to be noted in answering your questions is RCW 2.08.180, codified § 11, page 343, Laws of 1890, as last amended by § 1, chapter 149, Laws of 1967, and providing as follows:
[[Orig. Op. Page 3]]
"A case in the superior court of any county may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case; and his action in the trial of such cause shall have the same effect as if he were a judge of such court. A judge pro tempore shall, before entering upon his duties in any cause, take and subscribe the following oath or affirmation:
"'I do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully discharge the duties of the office of judge pro tempore in the cause wherein . . . . . . . . is plaintiff and . . . . . . . . defendant, according to the best of my ability.'
"A judge pro tempore who is a practicing attorney and who is not a retired judge of the supreme court or of a superior court of the state of Washington, or who is not an active judge of an inferior court of the state of Washington, shall receive a compensation of one‑two hundred and fiftieth of the annual salary of a superior court judge for each day engaged in said trial, to be paid in the same manner as the salary of the superior judge. A judge who is an active judge of an inferior court of the state of Washington shall receive no compensation as judge pro tempore. A judge who has retired from the supreme court or superior court of the state of Washington shall receive compensation as judge pro tempore in the amount of sixty percent of the amount payable to a judge pro tempore under this section."
We have set forth the full text of the two foregoing statutes because we believe it important to understand, from a complete reading of these statutes, that each applies in a different situation. RCW 2.08.180 covers the situation of a member of the bar who is serving as a judge pro tempore of a superior court ‑ whereas RCW 2.04.250 deals with pro tempore judges of the state supreme court. We can see no basis for reading the terms of either of these statutes into the other by implication. Each, by its express terms, covers its own particular case and no others.
[[Orig. Op. Page 4]]
Therefore, we believe it clear that your first question, as above paraphrased, must be answered in the negative. The compensation of a retired superior court judge who is serving as a pro tempore judge of the supreme court is not to be computed on the basis of the formula set forth in RCW 2.08.180.
Instead, by the express terms of RCW 2.04.250 (2), supra, a retired judge of a superior court serving as a judge pro tempore of the supreme court is to receive, in addition to any retirement pay he may be receiving, his actual traveling expenses to the extent set forth in subsection (2) (a), and, in addition,
". . . an amount equal to the salary of a regularly elected judge of the court in which he last served for such period diminished by the amount of retirement pay accrued to him for such period."
Thus, where the retired judge serving as a pro tempore judge of the supreme court last served as a superior court judge, as in the case to which your questions refer, he is to receive for the period of his service as a pro tempore judge of the supreme court the same salary as he would have received had he been serving as a superior court judge for that same period ‑ less his retirement pay for the period ‑ as follows:
(1) If the retired superior court judge in question serves a full month as a pro tempore judge of the supreme court, he should receive for that period the same salary (less retirement pay) as is payable for a full month's service as a superior court judge ‑ i.e., one‑twelfth of the annual compensation of a superior court judge;
(2) In the case of fractional months, the salary paid (less retirement pay) should be computed on the same basis as would be a fractional month's salary payable to an active superior court judge.
In anticipation of this latter conclusion, we asked to be informed as to the current procedures of the state court administrator in calculating fractional month's salaries for active superior court judges who work for less than a full month ‑ either because of a mid-month death, retirement or resignation or because of not assuming office until after the start of a month. You responded to this inquiry as follows:
[[Orig. Op. Page 5]]
"For your information, the Court Administrator informs me that in computing the amount due a regular superior court judge entitled to compensation for a fractional portion of a month, the compensation the judge would have received for a full month service is multiplied by the days served over the number of days in the month."
For example, if a superior court judge serves for a total of thirteen days in a given thirty-one day month, his salary for that period will be one‑twelfth of the annual salary of a superior court judge, multiplied by 13/31. It is our opinion, in answer to your second question, that this is the proper formula to be utilized in computing the gross salary payable to a retired superior court judge who is serving as a pro tempore judge of the supreme court under Article IV, § 2 (a) (Amendment 38) and RCW 2.04.250, supra, where service is for a fractional month.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General