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AGO 1964 No. 78 - January 21, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COURTS ‑- JUSTICE COURT ACT OF 1961 ‑- PART-TIME JUSTICE OF THE PEACE ‑- APPOINTMENT OF JUSTICE PRO TEMPORE ‑- COMPENSATION.

(1) Under the 1961 justice court act a justice court presided over by a part-time justice of the peace may pursuant to RCW 3.34.130 designate a justice of the peace pro tempore to serve on his behalf.

(2) The compensation of a pro tempore justice who takes the place of a part-time justice is based on the amount provided for a full-time justice under RCW 3.58.010 according to the formula appearing in RCW 3.34.130.

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                                                                 January 21, 1964

Honorable Cliff Yelle
State Auditor
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 78

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following paraphrased questions:

            (1) May a justice court presided over by a part-time justice of the peace designate a justice of the peace pro-tempore to serve on his behalf under RCW 3.34.130 (§ 22, chapter 299, Laws of 1961)?

            (2) If the answer to question 1 is yes, how is the compensation of a pro tempore justice serving for a part-time justice of the peace determined?

            We answer your first question in the affirmative, and the second as explained in the analysis.

                                                                     ANALYSIS

            RCW 3.34.130 (§ 22, chapter 299, Laws of 1961) provides as follows:

            "Each justice court shall designate one or more justices of the peace pro tempore who shall serve during the temporary absence, disqualification, or incapacity of a justice of the peace of the district.  The qualifications of a justice of the peace pro tempore shall be the same as for a justice of the district:  Provided, That if no qualified person is available, then the court shall appoint  [[Orig. Op. Page 2]] a registered voter of the county in which the justice court district or portion thereof is located.  A justice of the peace pro tempore may sit in any district of the county for which he is appointed.  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 a full time justice of the district.  For each day that a justice of the peace pro tempore serves in excess of thirty days during any calendar year, the annual salary of the justice of the peace in whose place he serves shall be reduced by an amount equal to one‑two hundred fiftieth of such salary."

            The first sentence of that provision clearly indicates that each justice court has the power to designate pro tempore justices to serve for temporary periods.  In fact, it could be forcefully argued that each justice court has a duty to designate at least one pro tempore justice because the language used by the legislature is mandatory in nature, i.e., "Each justice court shall designate one or more justices of the peace pro tempore . . ."  The word "shall" is usually indicative that a legislative provision is mandatory rather than directory.  See, e.g.,State ex rel. McDonald v. Stevenson, 176 Wash. 355, 29 P.2d 400 (1934).

            Accordingly, it is the opinion of this office that part-time justices of the peace have the authority under RCW 3.34.130 (§ 22, chapter 299, Laws of 1961) to designate one or more pro tempore justices.

            With relation to your second question it will be observed that RCW 3.34.130 (§ 22, chapter 299, Laws of 1961) contains the following formula for compensating pro tempore justices:

            ". . . 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 a full time justice of the district. . . ."

            The annual salary of a full-time justice of the peace is fixed by RCW 3.58.010 (§ 100, chapter 299, Laws of 1961) at $8,000.00, however, a greater amount may be paid under certain circumstances.  That statute provides as follows:

            "The annual salary of each full time justice of the peace shall be eight thousand dollars:   [[Orig. Op. Page 3]]Provided, That the city or county which pays the salary of such justice may increase such salary to an amount not to exceed thirteen thousand five hundred dollars:  Provided further, That in cities having a population in excess of five hundred thousand, the city which pays the salary may increase such salary of its municipal judges to an amount not more than the salary paid the superior court judges in the county in which the court is located."

            Obviously, where a pro tempore justice serves for a full-time justice of the peace who receives $8,000.00 or more, he will, under the formula provided, receive compensation based upon the salary of a full-time justice of the district, usually that of the justice whom he replaces.

            However, 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.

            In this situation, in our opinion, it is appropriate to rely on the $8,000.00 amount fixed for a full-time 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 justice.

            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.

             [[Orig. Op. Page 4]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

LLOYD W. PETERSON
Assistant Attorney General

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