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AGO 1984 No. 20 - August 14, 1984
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

COURTS ‑- JUSTICE ‑- JUSTICE COURT ACT OF 1961 ‑- COMPENSATION OF JUSTICES PRO TEM AND VISITING JUDGES

(1) The correct compensation to be paid under RCW 3.34.130 to a pro tem district court judge is one two-hundred fiftieth of the annual salary of a full-time district court judge (as provided for in RCW 3.58.010), regardless of whether the regular judge in whose place the pro tem justice is serving is a part-time, or a full-time, district court judge.

(2) When a part-time district court judge holds court in another judicial district within the same county, he or she is not entitled to be compensated for that service as a district court justice pro tempore under RCW 3.34.130, in addition to receiving reimbursement for subsistence, lodging and travel expenses under RCW 3.34.140. 

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                                                                 August 14, 1984

Honorable L. Eugene Hanson
Prosecuting Attorney
Klickitat County Court House
205 S. Columbus, No. 105
Goldendale, WA 98620-9289

Honorable James R. Larsen
Administrator for the Courts
Eastside Plaza Bldg. B
1206 S. Quince, EZ-11
Olympia, WA 98504

Cite as:  AGO 1984 No. 20                                                                                                                

 Gentlemen:

            By recent letters you have requested our opinion on questions which we paraphrase as follows:

             (1) What compensation is to be paid pursuant to RCW 3.34.130 to a pro tem district court judge serving in place of a part-time, regular, district court judge?

             (2) When a part-time district court judge holds court in another judicial district within the same county, is he or she entitled to be compensated for that service as a district court justice pro tem under RCW 3.34.130, in  [[Orig. Op. Page 2]] addition to receiving reimbursement for subsistence, lodging and travel expenses under RCW 3.34.140?

             We answer your first question in the manner set forth in our analysis and your second question in the negative for the reasons stated therein.

                                                                      ANALYSIS

             Although not necessarily limited thereto, your questions arise out of, and are illustrated by, a factual situation currently existing in Klickitat County.  For a number of years that county (as permitted by RCW 3.38.010, et seq.) has been divided into two judicial districts, each having an approximate population of 8,000 inhabitants.  Both districts, because of their populations and salaries, are served by part-time district court judges.  See, RCW 3.34.020 and 3.34.040.  And, on occasion, one or the other of the two judges for those districts is called upon to serve as a visiting judge in the other district pursuant to RCW 3.34.140.  In other instances, where neither of the two judges is available, district court justices pro tem are from time to time appointed as provided for in RCW 3.34.130.

             Question (1):

             Your first question involves the correct compensation to be paid to those persons serving one or the other of the two districts as a justice pro tem.  And it arises, basically, because (as above explained) neither of those two districts is served by afull-time district court judge.

             Both before its recent amendment by § 19, chapter 258, Laws of 1984 (effective July 1, 1984) and currently, however, RCW 3.34.130 has related the compensation of a district court justice pro tem to the salary of a full-time district court judge.  Before its amendment the statute read, in pertinent part, as follows:

             ". . . A justice of the peace pro tempore shall be paid for each day he holds a session one‑two hundred fiftieth of the annual salary of afull time justice of the district.. . ."  (Emphasis supplied)

             And presently, as amended, the statute reads:

             ". . . A judge pro tempore shall be paid for each day he or she holds a session one‑two hundred fiftieth of the  [[Orig. Op. Page 3]] annual salary of a full time district judge.. . ."  (Emphasis supplied)

             The salary of a full-time district court judge, in turn, is provided for in RCW 3.58.010.  Historically, that statute actually fixed a specific dollar amount‑-which was amended upward from time to time from a beginning level of $8,000 per year in 1961 to a level of $35,000 per year beginning on July 1, 1980.  By its enactment of § 8, chapter 162, Laws of 1980, however, the legislature changed that by again amending RCW 3.58.010‑-this time to provide, instead, that:

             "The annual salary of each full time district court judge shall be ninety percent of the salary of a judge of a superior court. . . ."

             Currently, by virtue of § 3, chapter 64, Laws of 1984 (amending RCW 2.08.090), the salary of a superior court judge is $60,000 per year.  It thus follows that the present salary for a full-time district court judge is $54,000 per year.  And thus, since RCW 3.34.130 now refers only to a designated percentage of the salary of a full-time district court judge in the abstract, it readily now also follows that a district court judge pro tem is currently to be paid one two-hundred fiftieth of $54,000 (i.e., $216) per day‑-regardless of whether he or she is serving in place of a full-time or a part-time regular district court judge.

             But what of the situation which existed prior to July 1, 1984 when the present version of RCW 3.34.130, supra, became effective?  Our answer to that question will be found in AGO 63-64 No. 78, copy enclosed, at pages 2-3.  In that opinion we first recognized the practical problem posed by the then existing language of RCW 3.34.130,supra, observing as follows:

             ". . . where there is no full-time justice serving in the district, a pro tempore justice's compensation cannot be determined by using the salary of the justice who is being replaced as a base because the statutory formula indicates that compensation is to be measured by the salary of a full-time justice."  (Emphasis supplied)

             In response to that dilemma, however, we then expressed, and explained, the following solution:

             "In this situation, in our opinion, it is appropriate to rely on the $8,000.00 amount fixed for a full-time  [[Orig. Op. Page 4]] justice by RCW 3.58.010,supra.

             "The compensation then, for a pro tempore justice of the peace serving for a part-time justice, will be one‑two hundred fiftieth of $8,000.00 for each day in which a session is held by the pro tempore judge.

            "There can be no objection to measuring the compensation of a pro tempore justice serving for a part-time justice by a full-time justice's salary because the pro tempore justice is being compensated on a daily basis.  The 'session day' salary rate of a part-time justice is presumably comparable to that of a full-time justice.  The annual salary of a part-time justice is less because he holds fewer sessions not because his services are worth less money.

             "If the annual salary of a part-time justice were taken as a measure of the replacement pro tempore justice's compensation the resulting compensation rate would bear no relationship to the 'session day' salary rate of the judge being replaced.  This problem is avoided by basing the compensation of a pro tempore justice who takes the place of a part-time justice on the amount provided for a full-time justice by RCW 3.58.010 according to the formula appearing in RCW 3.34.130."

             We adhere to that analysis at this time.  When AGO 63-64 No. 78 was issued, the annual salary of a full-time district court judge, under RCW 3.58.010,supra, was $8,000 per year.  In subsequent years, beginning with 1965 and running through 1980, the salary was periodically increased by the legislature to higher specific dollar amounts.  And since 1980 it has, as above noted, been ninety percent of a superior court judge's salary.  In accordance with AGO 63-64 No. 78, however, whatever that dollar amount has been in the past, at any given point in time, has been the base against which a district court justice pro tem's daily compensation is to be measured.1/

              [[Orig. Op. Page 5]]

            Question (2):

             Your second question, repeated for ease of reference, asks:

             When a part-time district court judge holds court in another judicial district within the same county, is he or she entitled to be compensated for that service as a district court judge pro tem under RCW 3.34.130, in addition to receiving reimbursement for subsistence, lodging and travel expenses under RCW 3.34.140?

             We have already made note of RCW 3.34.130, relating to the appointment of district court justices pro tem and providing for their compensation.  On the other hand, RCW 3.34.140 reads as follows:

            "Any justice of the peace may hold a session in any justice court district in the state, at the request of the justice or majority of justices in such district if the visiting justice of the peace determines that the state of justice court business in his district will permit him to be absent:  PROVIDED, That the board of county commissioners of the county in which such justice court is located shall first approve such temporary  [[Orig. Op. Page 6]] absence and no justice of the peace pro tempore shall be required to serve during his absence.  A visiting justice shall be entitled to reimbursement for subsistance, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060 as now or hereafter amended while so acting, to be paid by the visited district:  PROVIDED, That no such expenses shall be paid to the visiting justice unless the county commissioners of the county in which the visited district is located shall have consented and approved thereto prior to such visit."

             In our opinion, by their own express terms, RCW 3.34.130 and 3.34.140 are mutually exclusive of each other.  RCW 3.34.130 relates to the appointment and service of one who is not a district court judge as a district court justice pro tem.2/ Conversely, RCW 3.34.140, supra, relates to the service of a duly elected or appointed district court judge as a visiting judge in another judicial district.  On that count, both statutes appear to us to be plain, clear and unambiguous.

            By the same token, both statutes are likewise clear with respect to the financial consequences of service (1) as a district court justice pro tem and (2) as a visiting district court judge.  In the former case, as also explained in AGO 63-64 No. 68, supra, the compensation provided for by the above‑quoted language of RCW 3.34.130 (now as amended by § 19, chapter 258, supra) is to be paid.  And that represents full compensation for a district court justice pro tem.  Similarly, in the case of a district court judge serving as a visiting judge in another district, RCW 3.34.140 and that statute alone is determinative of what the visiting judge is to be paid in return.  Specifically, that statute says:

              [[Orig. Op. Page 7]]

            ". . . A visiting justice shall be entitled to reimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060 as now or hereafter amended while so acting, to be paid by the visited district: . . ."3/

             We therefore answer your second question, as above stated, in the negative.  When a district court judge for one judicial district within a particular county serves as a visiting judge in another district within the same county (or, for that matter, within any other county), he or she is only to be reimbursed for subsistence, lodging and travel expenses in accordance with RCW 3.34.140,supra, and is not to receive, in addition, the compensation payable to a district court justice pro tem under RCW 3.34.130,supra.  Indeed, his or hercompensation for such service must be deemed to be the basic statutory salary payable to the particular district court judge under RCW 3.58.010 (full-time district court judges) or RCW 3.58.020 (part-time district court judges), as the case may be.

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

 Yours very truly,
KENNETH O. EIKENBERRY
Attorney General

EDWARD B. MACKIE
Chief Deputy Attorney General

                                                         ***   FOOTNOTES   ***

 1/It is RCW 3.58.010, and not 3.58.020, which establishes the salary of a full-time judge‑-notwithstanding so much of RCW 3.34.040 as reads:

 "A district judge serving a district having a population of 40,000 or more persons, and a district judge receiving a salary greater than the maximum salary provided in RCW 3.58.020(6) shall be deemed full time judges and shall devote all of their time to the office and shall not engage in the practice of law. . . ."  (Emphasis supplied)

 RCW 3.58.020, however, establishes maximum and minimum salaries for part-time judges.  Correspondingly, any judge who receives more than the maximum salary of a part-time judge thereby becomes a full-time judge and, as a consequence, is then governed by RCW 3.58.010 which provides that "each full time district court judge" shall receive an annual salary equal to ninety percent of the salary of a superior court judge.  In return, he or she is to serve full time and not engage in private practice.

 We also note that there is in RCW 3.58.020 no provision for part-time judges' pay in districts having a population between 30,000 and 40,000.  This gap in the law occurred when RCW 3.58.020 was amended by § 9, chapter 255, Laws of 1979, 1st Ex. Sess. (SSB 3008); compare, § 1, chapter 195, Laws of 1974, 1st Ex. Sess.

 2/Also see, again, RCW 3.34.040, supra, which specifically permits part-time district court judges to "engage in other occupations."  The reference to "other" occupations must relate to all occupations except that of functioning as a judge.

 3/Note also, the following qualification as set forth in the final sentence of RCW 3.34.140:

 ". . . these shall not be paid to the visiting judge unless the legislative authority of the county in which the visited district is located has approved the payment before the visit.

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