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AGO 1977 No. 20 - October 26, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY CLERK ‑- FEES ‑- REFUNDS ‑- REFUNDING JURY FEES

The clerk of a superior court is not required by law to return a jury fee paid in a civil lawsuit either (1) when the demand for jury has been stricken by the court more than three days before the date of trial for the reason that the demand was untimely filed or (2) when, after the case has been set for trial, the court is notified of a settlement in the case prior to the trial date.

                                                              - - - - - - - - - - - - -

                                                                October 26, 1977

Honorable David F. Thiele
Prosecuting Attorney
Court House
Coupeville, Washington 98239

                                                                                                                 Cite as:  AGO 1977 No. 20

Dear Sir:

            By recent letter you have requested our opinion on the following questions:

            "1. Must a clerk of the Superior Court return a jury fee paid in a civil lawsuit when the demand for jury has been stricken by the court more than three days before the date of trial for the reason that the demand was untimely filed?

            "2. Must the clerk of the Superior Court return the jury fee in a civil lawsuit when the case has been set for trial, the jury demand made, and fee deposited and the court has been notified of settlement of the case three days or more prior to the trial date?"

             [[Orig. Op. Page 2]]

            We answer both questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your opinion request, basically, involves the current relationship between RCW 36.18.020(5) and Superior Court Civil Rule (CR) 38(e), as promulgated by the Washington Supreme Court.1/   In order to respond, however, we must first resort to a brief bit of history ‑ beginning with the initial adoption of CR 38(e) on May 6, 1967.  As then promulgated by the court the rule provided that:

             [[Orig. Op. Page 3]]

            "Whenever a case has been set for trial with a jury and the jury fee deposit has been made and such case is settled out of court prior to the time that it is called to be heard upon trial, such jury deposit shall not be returned to the party depositing the same unless the court is notified of the settlement of the casenot less than 3 days before the trial date."  (Emphasis supplied)

            The second event to be noted occurred in 1972 when the legislature, by § 5, Chapter 57, Laws of 1972, 1st Ex. Sess., amended the provisions of RCW 36.18.020 to read, in material part, as follows:

            "Clerks of superior courts shall collect the following fees for their official services:

            ". . .

            "(5) The party filing a demand for jury ofsix in a civil action, shall pay, at the time of filing, a fee of ((fifty)) twenty-five dollars ((, and)); if the demand is for a jury of twelve the fee shall be fifty dollars.  If, after a party files a demand for a jury of six and pays the required fee, any other party to the action requests a jury of twelve, an additional twenty-five dollar fee will be required of the party demanding the increased number of jurors.  In the event that the case is settled out of court and the court is notified not less than twenty-four hours prior to the time that such case is called to be heard upon trial, such fee shall be returned to such party by the clerk.

            ". . ."

            The next chapter in the saga was written shortly thereafter when this office issued AGLO 1973 No. 4 [[to Paul Klasen, Prosecuting Attorney of Grant County, on January 8, 1973, an Informal Opinion, AIR-73504]], copy enclosed.  In that opinion we concluded that because the conflicting statute was  [[Orig. Op. Page 4]] enacted subsequent to the adoption of the rule, the statute prevailed ‑ meaning that a litigant could properly be refunded his jury fee in the event of a settlement of which the court was notified not less than 24 hours prior to the time the case was scheduled to be called to be heardeven though such notification was given less than three days before the trial date as provided for by the earlier rule.  In so concluding we explained our reasoning as follows:

            "If this civil rule of procedure were to have been adopted by the supreme courtsubsequent to the above‑quoted 1972 amendment to RCW 36.18.020, then, to the extent of any conflict between it and this statute, the rule would take precedence.  See, RCW 2.04.200, codifying § 2, chapter 118, Laws of 1925, Ex. Sess., supra, which states that:

            "'When and as the rules of courts herein authorized shall be promulgated all laws in conflict therewith shall be and become of no further force or effect.'

            "Accord,State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 Pac. 770 (1928); see also, O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969); State v. Williams, 156 Wash. 6, 286 Pac. 65 (1930);State v. Pavelich, 150 Wash. 411, 273 Pac. 182 (1928); andNicktovich v. Olympic Motor Transit Co., 148 Wash. 410, 269 Pac. 337 (1928).  In this case, however, the conflicting legislation was not in existence when the rule of procedure was promulgated, and therefore, in our opinion, until the supreme court acts again to supersede the 1972 legislative amendment to RCW 36.18.020,supra, this statute must be regarded as being fully effective."

            AGLO 1973 No. 4,supra, was issued on January 8, 1973.  Then, by an order dated July 20, 1973, the Supreme Court responded by simply readopting CR 38(e),supra, effective as  [[Orig. Op. Page 5]] of that date.2/   Presumably, the court had read our opinion and was attempting to reverse the critical time sequence upon which we therein had relied.  That having been done, however, there entered once again the legislature upon the scene.  Specifically, in early 1975, by its enactment of § 1, Chapter 30, Laws of 1975, the legislature again amended RCW 36.18.020(5) ‑ but this time by deleting the final sentence thereof in its entirety.  Set forth in bill form for ease of reference this 1975 amendment to the law read as follows:

            ". . .

            "(5) The party filing a demand for jury of six in a civil action, shall pay, at the time of filing, a fee of twenty-five dollars; if the demand is for a jury of twelve the fee shall be fifty dollars.  If, after the party files a demand for a jury of six and pays the required fee, any other party to the action requests a jury of twelve, an additional twenty-five dollar fee will be required of the party demanding the increased number of jurors.  ((In the event that the case is settle out of court and the court is notified not less than twenty-four hours prior to the time that such case is called to be heard upon trial, such fee shall be returned to such party by the clerk.))

            ". . ."

            This completes our history lesson.  We may now turn to your resulting questions which, repeated for ease of reference, are as follows:

            "1. Must a clerk of the Superior Court return a jury fee paid in a civil lawsuit when the demand for jury has been stricken by the court more than three days before the date of trial for the reason that the demand was untimely filed?

            "2. Must the clerk of the Superior Court return the jury fee in a civil lawsuit when the case has been set for trial, the jury demand made, and fee deposited and the court has been notified of settlement of the case three days or more prior to the trial date?"

             [[Orig. Op. Page 6]]

            In posing these two questions to us you have also advised that it is your understanding, from speaking with your own superior court clerk,

            ". . . that the clerks throughout the State have taken the position that a jury fee once deposited cannot be returned subsequent to the 1975 legislative amendment to RCW 36.18.020(5)."

            The issue, basically, is whether the foregoing view is correct ‑ and we fully agree that it is.  We thus answer both of your questions in the negative.

            Question (1):

            To begin with it seems clear that neither RCW 36.18.020(5) nor CR 38(e) ever purported to call for the refunding of jury fees under the particular factual circumstances contemplated by your first question; i.e.,

            ". . . when the demand for jury has been stricken by the court more than three days before the date of trial for the reason that the demand was untimely filed?"

            Likewise, we are aware of no other statute which contains any such provision for refunding jury fees, once they have been paid by a litigant, solely on the ground that the demand for a jury trial was untimely filed.  Accord, AGO 1968 No. 21 [[to George A. Kain, Prosecuting Attorney of Spokane County, on May 22, 1968]], copy enclosed, in which we similarly advised that in the absence of statutory authority there exists no legal basis for the refund of fees collected by a county clerk under the provisions of RCW 36.18.020, supra.  While that opinion dealt, instead, with the filing fees required to be paid upon the commencement of a civil lawsuit by subsection (1) of RCW 36.18.020, rather than jury fees, the rule enumerated therein seems equally applicable here.3/

             [[Orig. Op. Page 7]]

            Question (2):

            In the situation contemplated by your second question, on the other hand, a refund of jury fees was qualifiedly provided for by RCW 36.18.020(5) until that statute was amended in 1975.  In turn, however, it appears to us that CR 38 (e) simply contemplated the existence of that statutory authorization and, during the period between its promulgation in 1967 and the legislature's later amendment of the statute in 1972, the rule merely modified the time limitation for the exercise thereof which had previously been fixed by the legislature.  AGLO 1973 No. 4,supra.  But at no time did CR 38(e), itself, purport to grant the legal authority to refund jury fees for that, instead, was exclusively a function of the statute.

           Then, when CR 38(e) was readopted in July of 1973 the three‑day limit provided for therein was restored.  See, RCW 2.04.200,supra.  But again, this was all that the rule purported to do.  Accordingly, when the underlying statutory authority to refund jury fees in the event of a pre‑trial settlement was withdrawn by the legislature in 1975 the rule in turn became inoperative because of the resulting elimination of thestatutory refund provision upon which the rule was predicated.

            Moreover, our research further discloses that this was precisely what was intended by the 1975 legislature when it amended RCW 26.18.020(5) to delete the prior language of the statute relating to refunds.  Chapter 30, Laws of 1975 originated as Senate Bill No. 2102 and during the course of debate the following colloquy occurred on the floor of the Senate between Senators Woody and Francis:

            "Senator Woody:  'Would Senator Francis yield? Senator Francis, for legislative intent purposes, it was the intent of the Judiciary Committee that the jury fee be not refundable in that this particular Senate Bill No. 2182 if enacted into law would supersede any current court rules.  Is that correct?'

            "Senator Francis:  'That is correct, Senator Woody, and I might add in further response to that that there have been proposals to raise the fee for demanding a jury to a very high figure in order to help pay for that, and we  [[Orig. Op. Page 8]] felt that it was a better way to go to try to keep the fee at the same level to reduce all the paper work involved in refunding the approximately four-fifths of all of the jury fees that are now filed in the state and just let them go ahead and make the people that actually demand a jury pay in that way for a little more of their share of the jury system, and we thought that it would be less of a deterrent and we thought that raising the fees would tend to take away the opportunity to have a jury and this way was a better way to go on that.'"4/

             Thus, it seems clear that this amendment was passed not in deference to the inconsistent provisions of CR 38(e),supra, but, instead, once again to supersede that rule.  And therefore, in summary, we answer both of your questions in the negative.  Question (1) is so answered because there never was any legal authority to refund jury fees under the circumstances described therein, and question (2) because the only authority which did previously exist has, as of 1975, been withdrawn by the legislature.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 2.04.190 which provides that:

            "The supreme court shall have the power to prescribe, from time to time, the forms of writs and all other process, the mode and manner of framing and filing proceedings and pleadings; of given notice and serving writs and process of all kinds; of taking and obtaining evidence; of drawing up, entering and enrolling orders and judgments; and generally to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the supreme court, superior courts and justices of the peace of the state.  In prescribing such rules the supreme court shall have regard to the simplification of the system of pleading, practice and procedure in said courts to promote the speedy determination of litigation on the merits."

2/Although labelled an amendment the rule as thus adopted was actually identical to the original version of CE 38(3) quoted above.

3/Note also the absence, at the county level, of a general statute similar to either RCW 43.01.072 or RCW 43.88.170, both of which expressly provide for refunds of excessive or erroneous fee payments to state agencies.

4/See Senate Journal, 1975, at p. 342.

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