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AGLO 1972 No. 074 - September 15, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              September 15, 1972
Honorable Phillip B. Winberry
Administrator for the Courts
Temple of Justice
Olympia, Washington 98504
                                                                                            Cite as:  AGLO 1972 No. 74 (not official)
Dear Sir:
            This is written in response to your recent request for our opinion with regard to the legality of payment of the salary of Whatcom County Superior Court Judge Hobart S. Dawson, who is currently serving in that capacity pursuant to an appointment made by the governor in accordance with the following provision of Article IV, § 5 of the state Constitution:
            ". . .  If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term."
            We are informed that Judge Dawson, a retired former judge of the Whatcom county superior court, has recently been appointed to serve again in this capacity upon the retirement, effective August 31, 1972, of the Honorable Bert C. Kale.  He has qualified by execution of the required oath1/ and is presently serving, but will continue to do so only until such time as a successor is designated on the basis of the results of the forthcoming, 1972, judicial elections.
            Under the provisions of Article IV, § 13 of the Constitution, ". . .  One‑half of the salary of each of the superior court judges shall be paid by the state, and the other one‑half by the county or counties for  [[Orig. Op. Page 2]] which he is elected.  . . ."  As the court administrator under chapter 2.56 RCW, you are responsible for preparation of the state payrolls resulting from this provision ‑ and from this vantage point you have asked for our opinion with regard to your authority to include Judge Dawson thereon in view of the fact that (according to your letter) ". . . he attained the age of 75 on October 29, 1971."  You have identified as the basis for this request the provisions of Article IV, § 3 (a) (Amendment 25) of the Constitution which state that:
            "A judge of the supreme court or the superior court shall retire from judicial office at the end of the calendar year in which he attains the age of seventy-five years.  . . ."
            This section became a part of our Constitution in 1952, through the amendatory process and has never before been construed either by this office or the supreme court.  Based upon its literal terms, it might be argued that it only applies to a judge in active service during the year in which he attains age seventy-five, and not to the eligibility of an otherwise qualified person2/ to be appointed by the governor to fill a vacancy under Article IV, § 5, supra, at some time after that year.  Unlike the Constitutions of some other states, the language of ours does not purport to state that a person over the specified age is  [[Orig. Op. Page 3]] no longer competent, as a matter of law, to perform the functions of a judge.3/   We need not, however, determine this question in order to respond to your present inquiry.
            It is well established in this state, as in others, that once a person has assumed a public office pursuant to election or appointment by competent authority the question of his eligibility to serve is a judicial question which can only be tested by means of quo warranto proceedings under the provisions of chapter 7.56 RCW.  See, Llewellyn v. Langlie, 37 Wn.2d 384, 224 P.2d 321 (1950), and cases cited therein; also (as an example of the application of this same rule in a case closely in point from another jurisdiction), see, State v. Byington, Fla., 168 So.2d 164, 175 (1964), in which the Florida court refused to grant a writ of prohibition against the service of an assertedly over-aged judge, saying:
            "Quo warranto is an appropriate and adequate remedy to determine the right of an individual to hold a public office.  See 27 Fla. Jur., Quo Warranto, Sec. 17, and cases there cited.  Where quo warranto is an adequate remedy, it is the only proper remedy and will preclude issuance of a writ of prohibition as a substitute.  McSween v. State Live Stock Sanitary Board, 97 Fla. 750, 122 So. 239, 65 A.L.R. 508 (1929); State ex rel. Attorney General v. Gleason, 12 Fla. 190 (1868); 74 C.J.S. Quo Warranto § 4."
            In addition, there are two other rules of law which appear to bear upon this matter.  The first such rule is that which presumes the legality of all official acts of public officers, including the making of appointments to other offices over which they possess the power of appointment.  See, 2 McQuillin, Municipal Corporations, § 10.37 at pp. 833-4, and cases cited therein.  Second is the rule which runs in favor of the eligibility under a statute or  [[Orig. Op. Page 4]] constitutional provision of those persons in public office whose legal right to serve is challenged.  As stated in State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 566, 413 P.2d 972 (1966), with respect to this latter rule:
            "A strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility.  State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321 (1930).  . . ."

            In view of these several points of law, and the policy considerations upon which they rest, we believe that our position at the present time must be one of presuming the validity of the governor's appointment of Judge Dawson and of his eligibility to serve pursuant to that appointment until and unless a contrary ruling on the matter is issued by a court of competent jurisdiction in quo warranto proceedings.  Under the provisions of RCW 7.56.020, such proceedings may be initiated either by the prosecuting attorney of the county in which the disputed office is situated or by some other person claiming an interest in that office.4/   Moreover, we think that until such time as the judge is declared in this manner to be ineligible to serve, or until he ceases to serve for any other reason, he should be regarded as being fully entitled to be compensated for his services through payment by both the state and county of their respective shares of the salary attached to his office.5/   Accord, 63 Am.Jur. 2d, Public  [[Orig. Op. Page 5]] Officers, § 510 et seq., and cases cited therein.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, Washington Constitution, Article IV, § 28.
2/See, Washington Constitution, Article IV, § 17, which provides that:
            "No person shall be eligible to the office of judge of the supreme court, or judge of a superior court, unless he shall have been admitted to practice in the courts of record of this state, or of the Territory of Washington."
            Without question, Judge Dawson meets this qualification.
3/Contrast, for example, the provisions of Article XII of the Connecticut Constitution of 1818, which state that:
            ". . .  No judge of the supreme court of errors or of the superior court shall be capable of holding his office after he shall arrive at the age of seventy years."  (Emphasis supplied.)
4/But, notably, not by the attorney general.  See, State ex rel. Atty. Gen. v. Seattle Gas Co., 28 Wash. 488, 68 Pac. 946 (1902).
5/See RCW 2.08.090 which fixes the current compensation of superior court judges.  We should also note that as a retired judge returning to service, Judge Dawson is governed during the period of his active duty as a judge by the following provisions of RCW 2.12.040:
            "If any retired judge shall accept an appointment or an election to a judicial office, he shall be entitled to receive the full salary pertaining thereto, and his retirement pay under this chapter shall be suspended during such term of office and his salary then received shall be subject to contribution to the judges' retirement fund as provided in this chapter."
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