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AGO 1971 No. 40 - December 13, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- COURTS ‑- ATTORNEYS ‑- ELIGIBILITY FOR APPOINTMENT TO MUNICIPAL COURT UNDER CHAPTER 3.50 RCW

An attorney admitted to practice in the state of Washington may be appointed as a municipal judge of a city which has established a municipal court under chapter 3.50 RCW even though he neither resides nor maintains a law office within such city, provided that he is practicing law within the municipality to the extent of representing clients who reside therein on a substantial and continuing basis.

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                                                               December 13, 1971

Honorable L. Edward Brown
Prosecuting Attorney
Grays Harbor County
131 Main Street North
Montesano, Washington 98563

                                                                                                                 Cite as:  AGO 1971 No. 40

Dear Sir:

            By a previously acknowledged letter, you have requested an opinion of this office on a question which we paraphrase as follows:

            In a city having a population of less than 5,000 inhabitants which has established a municipal court under chapter 3.50 RCW, may a person who is an attorney licensed to practice in this state be appointed as municipal judge where such person, although neither residing nor maintaining a law office in such city, represents clients who do reside therein?

            We answer your question in the affirmative subject to the qualification which appears in the following analysis.

                                                                     ANALYSIS

            Chapter 3.50 RCW codifies that portion of the 1961 justice court act (§§ 50-96, chapter 299, Laws of 1961) which permits any city or town with a population of twenty thousand  [[Orig. Op. Page 2]] or less to establish a municipal court to be governed by the provisions of this act ‑ as an alternative to the retention of its preexisting police or municipal court established under prior statutes.1/

             Your question pertains to RCW 3.50.040 which, after providing for the appointment, terms and qualifications of municipal judges under this chapter, provides in material part as follows:

            "The person appointed as municipal judge shall be a citizen of the United States of America and of the state of Washington; and an attorney duly admitted to practice law before the courts of record of the state of Washington and practicing law in the municipality or residing in the municipality where the department is located:Provided, That in a municipality having a population less than five thousand persons, a person other than an attorney may be the judge.  Any city or town shall have authority to appoint a duly elected justice of the peace as its municipal judge when the municipal judge is not required to serve full time.  In the event of the appointment of a justice of the peace, the city or town shall pay a pro rata share of his salary."

            You posit the case of a city having less than 5,000 inhabitants which desires to have an attorney serve as its municipal judge.  Your question is whether the city can appoint as its municipal judge an attorney who neither resides nor maintains a law office within the city where he, nevertheless, represents private clients who do reside therein.

             [[Orig. Op. Page 3]]   A plain reading of the statute indicates that the answer to this question turns on the meaning to be given the words "practicing law."  However, before resolving this issue we believe it necessary to consider a preliminary question.  Since we are dealing here with a city of less than 5,000 inhabitants, it might be argued from the proviso that a nonresident who is not an attorney at all can be appointed municipal judge ‑ thereby rendering the nature and extent of the appointee's practice of law irrelevant.

            This argument is, in our judgment, met by taking a diagramatic approach to the statutory provision.  Basically, RCW 3.50.040 provides that the appointee must be:  (1) a citizen, (2) an attorney, and (3) either "practicing law" in the municipalityor "residing" therein.  The proviso, on its face, simply eliminates the requirement that the appointee be an attorney where the municipality involved has less than 5,000 inhabitants.  If the appointee in this latter instance is not an attorney, then, of course, he is precluded from "practicing law in the municipality."  However, the alternative qualification enunciated in (3) above ‑ that he "reside" therein ‑ is not thus automatically eliminated as well.  In the absence of a clear-cut legislative directive to the contrary, we are therefore of the opinion that, regardless of the population of the municipality, residency is required in all cases except those involving nonresidentattorney appointees.  Where a nonresidentattorney appointee is involved, there remains the determination of whether or not he is "practicing law in the municipality."

            Accordingly, we turn now to the basic issue raised by your request; i.e., the meaning of the phrase "practicing law" in RCW 3.50.040, supra.

            The terms "practicing law" and "practice of law" have often been examined by our courts and those of other jurisdictions in another context ‑ regulation of the unauthorized practice of law.  See,State v. Chamberlain, 132 Wash. 520, 232 Pac. 337 (1925);State ex rel. Ayamo v. W. S. B. Ass'n., 24 Wn.2d 706, 167 P.2d 674 (1946);In re Droker v. Mulholland, 59 Wn.2d 707, 370 P.2d 242 (1962).  We are not here concerned with such regulation, however, but with qualification for public office.  In only one case has our court been concerned with defining a similar provision for qualification purposes.  State ex rel. Laughlin v. State B. A., 26 Wn.2d 914, 176 P.2d 301 (1947).  While the court was there concerned with what constituted being "actively engaged in practice" in anotherstate under the rules for admission to practice, the discussion  [[Orig. Op. Page 4]] excerpted below inclines us to believe that the court would take a similar view where the question is whether a prospective municipal court appointee is "practicing law in the municipality" as required by RCW 3.50.040, supra.

            The court inLaughlin made mention of the fact that the petitioner had long since ceased residing in or maintaining an office in the former state, but did not find that conclusive, saying instead:

            "'The phrase "actual practice" is open to but one construction.  It is the opposite of casual or occasional or clandestine practice and carries with it the thought of active, open and notorious engagement in a business, vocation, or profession.'

            ". . .

            "'While we lack an authoritative definition of practicing law, we may say here that, so far as this jurisdiction is concerned, it means doing or practicing that which an attorney or counsellor at law is authorized to do and practice.'

            "Webster's New International Dictionary (2d ed.) defines the word 'practice' as follows:

            "'To do, perform, carry on, act, or exercise; now, except rarely, to do or perform often, customarily, or habitually; to make a practice of; . . .'"  (Emphasis supplied.)

            In the absence of additional case authority, we are of the opinion that a similar test is to be applied where the question is whether the individual concerned is "practicing law in the municipality" within the meaning of RCW 3.50.040.  Neither residency in the municipality nor maintenance of law offices therein is the ultimate criterion because one may be said to be "practicing law" where he neither resides nor maintains an office.

             [[Orig. Op. Page 5]]   We thus answer your question as above paraphrased in the affirmative subject, however, to the qualification that the number of professional contacts in the municipality should be substantial and continuing.  In other words, the person appointed must be "practicing" within the city in the sense described inLaughlin,supra.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


THOMAS F. CARR
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 3.50.470, codifying § 96 of the act, which provides that:

            "Although self-executing, the provisions of this chapter shall be cumulative and, notwithstanding any provision hereof, any city or town may elect to continue under any existing statutes relating to police courts, municipal courts, or laws relating to justices of the peace."

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