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July 19, 1973
Honorable Richard King
State Representative, 38th District
309 ‑ 77th Place S.W.
Everett, Washington 98201
Cite as: AGLO 1973 No. 115
By recent letter you have asked whether, in our judgment, a constitutional amendment is needed in order to permit county agencies, without the approval of their respective county prosecuting attorneys, to retain other attorneys to counsel and represent them with respect to civil matters.
In general response to this question we are enclosing herewith a xerox copy of the opinion of the Washington Supreme Court in State ex rel. Johnston v. Melton, 192 Wash. 379, 73 P.2d 1334 (1937), together with a copy of our opinion of December 30, 1970, to the Skamania County Prosecuting Attorney [[to Robert K. Leick an Informal Opinion AIR-70661]]with respect to an analogous situation. From these materials you will readily discern the nature of the problem confronting the legislature in any attempt to authorize the employment of attorneys by county agencies without a constitutional amendment. If these attorneys were to be vested with any of the present powers and functions of the prosecuting attorney as legal counsel for all county officers, then, in accordance with the court's reasoning in the Melton case, such legislation would in all probability be held to be in conflict with Article XI, § 5, which states, in material part, that:
"The legislature, by general and uniform laws, shall provide for the election in the several counties of boards of county commissioners, sheriffs, county clerks, treasurers, prosecuting attorneys and other county, township or precinct and district officers, as public convenience may require, and shall prescribe their duties, and fix their terms of office . . ."
[[Orig. Op. Page 2]]
And, as you know, the present duties and functions of the various prosecuting attorneys do include the representation of county officers and agencies in civil matters as well as the representation of the state in criminal prosecutions. See RCW 36.27.020. Therefore, while it might, conceivably, be possible to enact legislation without a constitutional amendment which would allow county agencies to employ attorneys for certain limited purposes, it seems to us that the potential utility of any such attorneys would be severely restricted unless they could be vested with at least some of the powers and functions presently performed by the of the powers and functions presently performed by the prosecuting attorneys in civil matters ‑ and this would require a constitutional amendment.
It is hoped that the foregoing explanation of this matter will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
PHILIP H. AUSTIN
Deputy Attorney General