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AGO 1991 No. 13 - March 28, 1991
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

CITIES AND TOWNS ‑- SALARIES AND WAGES ‑- JUDGES ‑- SALARY OF MUNICIPAL COURT JUDGES

Chapter 3.50 RCW empowers certain cities to establish a municipal court that is not part of the state's district court system.  If a city establishes a municipal court pursuant to chapter 3.50 RCW, the salary of its municipal court judges is set by the city by ordinance.  A city may pay its municipal court judges less than full-time district judges receive when serving in a municipal department established pursuant to chapter 3.46 RCW.

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                                                                  March 28, 1991

Honorable Karen Schmidt
State Representative, 23rd District
314 House Office Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1991 No. 13

Dear Representative Schmidt:

            By letter previously acknowledged you requested an opinion on a question paraphrased as follows:

            If a city creates a municipal court pursuant to chapter 3.50 RCW, may it compensate a person serving as its full-time municipal judge at a lesser salary than that person received when her or she was a full-time district judge serving a municipal department pursuant to chapter 3.46 RCW?

            We answer your question in the affirmative for the reasons set forth in the background and analysis below.

                                                                BACKGROUND

            Your question requires, at the outset, a comparison of the different municipal court systems authorized by chapters 3.46 and 3.50 RCW.

             [[Orig. Op. Page 2]]

Chapter 3.46 RCW‑-Municipal Departments

            Chapter 3.46 RCW permits any city to establish a "municipal department of the district court."  RCW 3.46.010.  Such a department, as the name indicates, is a part of the larger district court system established in each of the counties.  RCW 3.38.020(6).  RCW 3.46.020 expressly requires, therefore, that "[e]ach judge of a municipal department shall be a judge of the district court in which the municipal department is situated."  The term of a judge of a municipal department is coextensive with this or her term as a district judge.  RCW 3.46.080.

            The jurisdiction of a district judge, while serving a municipal department, is limited to matters arising from city ordinances unless otherwise conferred by statute.  RCW 3.46.030.  When a district judge is not serving the municipal department, his or her jurisdiction is much more extensive in both civil and criminal matters.  See RCW 3.66.020, [3.66].060.

            The salaries of full-time district judges are established pursuant to the state constitution and implementing statutes.  Article 28, section 1 (Amendment 78), of the Washington State Constitution, last amended in 1986, provides in part:

            Salaries for members of the legislature, elected officials of the executive branch of state government, and judges of the state's supreme court, court of appeals, superior courts, anddistrict courts shall be fixed by an independent commission created and directed by law to that purpose.

(Emphasis added).  The Legislature, to implement the above provision, created the Washington Citizen's Commission on Salaries for Elected Officials and directed the commission to establish, among other salaries, that of each full-time district judge.  RCW 3.58.010.  The commission has set the annual salary for "[f]ull-time judges of the district court" at $76,600, effective September 3, 1990.  RCW 43.03.012(3)(d).

            A district judge may serve as the judge of a municipal department either full-time or part-time.  The salary of a district judge, while he or she is serving as judge of a municipal department, is paid by the city.  If the judge serves the municipal department full-time, the city pays the entire salary.  If the judge serves the municipal department part-time, the salary is paid jointly by the county and the city in the same proportion as the time of the judge has been allocated to each.  RCW 3.46.090.  The fact that part or all of the judge's salary is paid by the city does not, however, negate the fact that he or she is serving the municipal department as a district judge, with salary level set accordingly.

             [[Orig. Op. Page 3]]

            RCW 3.46.150 expressly allows a city (after giving the county requisite notice and meeting other requirements not at issue here) to terminate the municipal department previously created.  The city may subsequently, if it wishes, establish a municipal court pursuant to chapter 3.50 RCW.  The statutes governing such municipal courts are set forth below.

Chapter 3.50 RCW‑-Municipal Courts

            The Legislature has provided, under chapter 3.50 RCW, an alternative municipal court system available to cities with a population of 400,000 or less.  Cities are expressly given the option of either using the system set forth in chapter 3.50 RCW or "establish[ing] a municipal department of a district court under chapter 3.46 RCW."  See RCW 3.50.005-[3.50].007.

            A municipal court established under chapter 3.50 RCW is not part of the district court system.  Its municipal judges are not required to be district judges.  Moreover, in cities whose population is less than 5,000, the municipal judge need not be an attorney.  RCW 3.50.040.  The only express authorization to appoint a district judge as a municipal judge is limited and set forth in RCW 3.50.040, which provides in part:

            Any city or town shall have authority to appoint a district judge as its municipal judgewhen the municipal judge is not required to serve full time.  In the event of the appointment of a district judge, the city or town shall pay a pro rata share of the salary.

(Emphasis provided.)

            No statutes provide that full-time municipal judges under chapter 3.50 RCW shall be district judges.  Furthermore, a full-time municipal judge cannot simultaneously be a full-time district judge, since RCW 3.34.040 requires that full-time district judges "shall devote all of their time to the office [of district judge]."  The terms of full-time municipal judges, unlike those of judges serving municipal departments under chapter 3.46 RCW, have no connection to the terms of district judges.  When a city establishes a municipal court under chapter 3.50 RCW, it elects or appoints new municipal judges to serve new terms.  Compare RCW 3.50.040-[3.50].050 with RCW 3.46.080.

            Salaries of full-time municipal judges are not fixed by the Washington Citizen's Commission on Salaries for Elected Officials, nor by any state statutes.  Rather, RCW 3.50.080 expressly provides in part:

            Salaries of municipal court judges shall be fixed by ordinance.  All costs of operating the municipal court,  [[Orig. Op. Page 4]] including but not limited to salaries of judges . . . shall be paid wholly out of the funds of the city or town.

(Emphasis added).

                                                                     ANALYSIS

            With the above background in mind, we now turn to your specific question:

            If a city creates a municipal court pursuant to chapter 3.50 RCW, may it compensate a person serving as its full-time municipal judge at a lesser salary than that person received when he or she was a full-time district judge serving a municipal department pursuant to chapter 3.46 RCW?

            Our response is based upon an analysis of the above‑cited statutes.  We are guided in this task by reference to well-established rules of statutory construction.  The primary objective is to ascertain and carry out the intent of the Legislature.  Martin v. Meier, 111 Wn.2d 471, 479, 760 P.2d 925 (1988).  Such intent is to be determined from the subject matter and statutory texts as a whole, interpreted in terms of the general objects and purposes of the legislation.  Eastlake Comm'ty Coun. v. Roanoke Assoc., 82 Wn.2d 475, 490, 513 P.2d 36 (1973).

            In reviewing the statutes, particularly chapter 3.50 RCW, it is apparent that the Legislature intended this chapter to establish a municipal court system separate from the state's district court system.  Municipal judges serving full-time under chapter 3.50 RCW do not serve as district judges.  Their salaries are not determined by reference to the salaries paid to district judges.  The Legislature explicitly has provided, rather, that their salaries "shall be fixed by ordinance."  RCW 3.50.080.

            If a municipality had no option in "fixing" such salaries, but to set the rate at that mandated for district judges, the municipality would have no real authority at all, and this aspect of the legislation would be rendered useless and meaningless.  Such a result must not be presumed.  State v. McCullum, 98 Wn.2d 484, 493, 656 P.2d 1064 (1983).  Instead, we conclude that the Legislature has conferred discretion on municipalities to set the salaries of full-time municipal judges, serving under chapter 3.50 RCW, at the level the municipality deems appropriate.

            This result comports with the separate municipal court system established in chapter 3.50 RCW.  When viewed in this light, it is further apparent that to pay an individual a lesser  [[Orig. Op. Page 5]] salary as a municipal judge serving under chapter 3.50 RCW, than he or she previously received as a district judge serving a municipal department under chapter 3.46 RCW, is not to provide for a "decrease in salary."  Rather, the individual is simply receiving a new, albeit perhaps lower, salary for serving in a new position.

            It must be a new position, because as previously indicated, a full-time district judge cannot simultaneously serve as a full-time municipal judge under chapter 3.50 RCW.  See RCW 3.34.040.  If a full-time district judge wishes to accept the new position of full-time municipal judge, he or she may do so only following the expiration of the term of office of district judge, or by vacating the office of district judge.  The individual thus moves from one judicial position to another.  There are two positions‑-hence, two salaries.1/

             [[Orig. Op. Page 6]]

            For the reasons set forth above, we conclude that a city may take the action contemplated in your question, and therefore answer your question in the affirmative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

GREGORY J. TRAUTMAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/For this reason, the result here comports with state constitutional mandates.  We are aware that various provisions of the state constitution prohibit decreasing the salary of a public officer "during his term of office."  See Const. art. 2, § 25 (amend. 35) (regarding public officers); Const. art. 11, § 8 (amend. 57) (regarding county, city, town, and municipal officers).  But as the State Supreme Court has emphasized, "The provisions of the constitution forbidding a change in the compensation of any public officer during his term of office refer to theterm and not to the individual."  State ex rel. Wyrick v. Ritzville, 16 Wn.2d 36, 42, 132 P.2d 737 (1942) (emphasis added).

            A municipal legislative body possessing the requisite power may abolish an office altogether.  3 E. McQuillin,Municipal Corporations § 12.118 (3d rev. ed. 1990).  Under RCW 3.46.150, cities are given the authority to terminate a "municipal department of the district court" previously created under chapter 3.46 RCW, and necessarily, to terminate the office of municipal judge also previously created under that chapter.

            When an office is abolished, the term of office incident thereto is likewise abolished.  If the municipal legislative body later creates a new office of like character, but with a different salary and tenure [e.g., the office of municipal judge under chapter 3.50 RCW], and appoints the individual who previously served in the former office to serve in the new office, the constitutional bar against decreasing an officer's salary "during his term of office" has no application. 4 E. McQuillin,Municipal Corporations § 12.198a (3d rev. ed. 1985).

            Of course, a full-time district judge who has been serving in a municipal department remains a district judge, even after the elimination of the municipal department, either until he or she vacates the position, or until the term of district judge expires.  See RCW 3.38.040.  The jurisdiction of such a district judge is henceforth as set forth in the general district court statutes.  See RCW 3.66.020, [3.66].060.  Onlyafter that individual ceases to be a full-time district judge may he or she be appointed or elected to the new position of full-time municipal judge under chapter 3.50 RCW.  See RCW 3.34.040.  Having accepted the new position, with a new salary, the constitutional prohibition referred to above does not apply.

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