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AGO 1965 No. 26 - June 28, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


1961 JUSTICE COURT ACT ‑- MUNICIPAL COURTS ‑- CITIES OF THE THIRD CLASS WITH POPULATION OVER 5,000 OPERATING UNDER 1961 ACT ‑- CHAPTER 7, LAWS OF 1965 or CHAPTER 116, LAWS OF 1965, EX. SESS.

A city of the third class with a population of over 5,000 which has elected to come under the municipal court provisions of the 1961 Justice Court Act (chapter 3.50 RCW) is not affected by chapter 7, Laws of 1965, or by § 11, chapter 116, Laws of 1965, Ex. Sess.

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                                                                   June 28, 1965

Honorable Frank J. Warnke
State Representative, 30th District
29457 51st South
Auburn, Washington

                                                                                                                Cite as:  AGO 65-66 No. 26

Dear Sir:

            By letter previously acknowledged you requested the advice of this office as to whether either Senate Bill No. 3 or Senate Bill No. 236 affects the status of the present municipal court judge in the city of Enumclaw.

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            Senate Bill No. 3, as enacted by the legislature and approved by the governor, became chapter 7, Laws of 1965.  This legislation merely re‑enacts [[reenacts]]Title 35 of the Revised Code of Washington [[Title 35 RCW]]relating to cities and towns.  Section 35.98.010 of the act spells out the legislature's intent as to construction in the following language:

            "The provisions of this title insofar as they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments."

            Accordingly, it appears that nothing contained in Senate Bill No. 3 (chapter 7, Laws of 1965) should be regarded as altering the existing status of the present municipal court judge in the city of Enumclaw.  Since this legislation makes no  [[Orig. Op. Page 2]] substantive change in the statutory law governing cities and towns‑-including the law governing the position of municipal court judge in any class of city or town‑-the status of any person holding such a judicial position is totally unaffected by the enactment.

            The second bill to which you have referred, Senate Bill No. 236, was approved by the governor on April 6, 1965, and thereafter enrolled by the secretary of state as chapter 116, Laws of 1965, Ex. Sess.  This enactment, unlike Senate Bill No. 3, supra, does make substantial changes in pre‑existing statutory law governing cities and towns.  However, we do not believe that this legislation has any bearing upon the position of municipal court judge in the city of Enumclaw.  We are of this opinion in spite of the fact that § 11, of this enactment, makes certain express amendments to RCW 35.24.450 relating to police courts in cities of the third class.1/

             [[Orig. Op. Page 3]]

            In thus concluding we are, of course, aware that the city of Enumclaw is a city of the third class and thus, under ordinary circumstances, would be governed by this particular statute.  However, you have advised that following enactment of the new justice court act in 1961 (chapter 299, Laws of 1961) the city of Enumclaw elected to establish a municipal court and traffic violations bureau as permitted by the provisions of §§ 50-96 of that 1961 act.  Being located in King county, a class AA county to which the provisions of chapter 299, Laws of 1961, automatically apply pursuant to § 2 thereof, this was an action which the city of Enumclaw had every right and power to take.

            As a matter of fact, this particular option was one of three options which became available to the city of Enumclaw with the enactment of chapter 299, Laws of 1961, supra.  Alternatively, under the act this city could have established a municipal department of the justice court of the justice court district in which it was located (see, §§ 35-49, chapter 299, Laws of 1961) or it could have elected pursuant to § 96 of the act

            ". . . to continue under any existing statutes relating to police courts, municipal courts, or laws relating to justices of the peace."

            Only by electing this latter option would the city of Enumclaw have continued to be governed by the provisions of RCW 35.24.450 (footnote 1,supra).  Its determinationnot to pursue this particular option provides the explanation for our conclusion that the municipal court of the city of Enumclaw is presently in no way governed by RCW 35.24.450 as amended by § 11, chapter 116, Laws of 1965, Ex. Sess.,supra.

            Because of the provisions of chapter 299, Laws of 1961, to which we have above made note, it follows that RCW 35.24.450, as amended by § 11, chapter 116, Laws of 1965, Ex. Sess.,supra, only applies (a) to cities of the third class having the mayor-council form of government located outside counties  [[Orig. Op. Page 4]] which are governed by chapter 299, Laws of 1961;2/ or (b) to such cities of the third class located within such counties which have nevertheless elected, under § 96, chapter 299, Laws of 1961,supra, to continue operating their municipal courts under the provisions of "existing statutes;" i.e., RCW 35.24.450,supra.


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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 35.24.450, as amended by § 11, chapter 116, Laws of 1965, Ex. Sess., reads as follows:

            "At the time he makes his other appointments, the mayor of any city of the third class shall appoint a police judge who shall be the regular elected justice of the peace or an attorney duly admitted to practice law in this state:  Provided, That in cities of the third class having a population under five thousand, the legislative authority of the city may provide that the mayor may appoint any person, without regard to whether he is a justice of the peace or attorney, to the office of police judge.  The police judge shall, before entering upon the duties of his office, give such bond or additional bond to the city for the faithful performance of his duties as the legislative authority of the city may by ordinance direct, and shall receive such salary as the council shall by ordinance direct.  The term of the police judge shall be for a period of four years from and after the date of his appointment and he shall be removed only upon conviction of misconduct or malfeasance in office, or because of physical or mental disability rendering him incapable of performing the duties of his office."

2/Either by automatic application under § 2, chapter 299, Laws of 1961, or by reason of election of the particular board of county commissioners under the final sentence of that section which reads:

            ". . . The provisions of this act may be made applicable to any county of the first, second, third, fourth, fifth, sixth, seventh, eighth, or ninth class upon a majority vote of its board of county commissioners."

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