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AGO 1966 No. 109 - October 04, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


Though not determinative of the question, language expressed by the supreme court in the recent case of State v. Kline, 69 W.D.2d 109 [[69 Wn.2d 107]](1966, would seem to support a proposition that a filiation warrant issued under RCW 26.24.010 is a form of criminal process and hence has state‑wide [[statewide]]enforceability where issued by a justice court operating under the 1961 justice court act (chapter 299, Laws of 1961); however, only the court itself can finally decide this jurisdictional question.

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                                                                 October 4, 1966

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
946 County-City Building
Tacoma, Washington

                                                                                                              Cite as:  AGO 65-66 No. 109

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Where a warrant issued in a filiation case pursuant to RCW 26.24.010 is issued by a district court judge (justice of the peace) of a justice court located in a county which is governed by the 1961 justice court act (chapter 299, Laws of 1961), may the warrant be executed in another county of this state?

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


            RCW 26.24.010 provides as follows:

            "When an unmarried woman shall be pregnant or delivered of a child which shall not be the issue of lawful wedlock, complaint may be made in writing by said unmarried woman, her father, mother or guardian, to any justice of the peace in the county of which she has been a resident for thirty days last  [[Orig. Op. Page 2]] past and where she may be so pregnant or delivered,or where the person accused may be found, accusing, under oath, a person with being the father of such child, and it shall be the duty of such justice forthwith to issue a warrant against the person so accused and cause him to be brought forthwith before such justice."  (Emphasis supplied.)

            In an opinion dated December 30, 1948 [[to Boone Hardin, Prosecuting Attorney, Whatcom County, Opinion No. 47-49-500]], copy enclosed, we concluded that a warrant issued pursuant to this statute could only be served in the county where issued.  The basis for this conclusion was, in essence, the statute now codified as RCW 3.20.050, which provides:

            "The jurisdiction of justices of the peace elected in pursuance of the provisions of this title shall be coextensive with the limits of the county in which they are elected or appointed."

            After reciting this statute, we stated our reasoning, and conclusion, as follows:

            "The above statute expressly restricts the jurisdiction of a justice of the peace to the limits of his own county and we believe such provision is applicable to warrants issued by him in bastardy cases.  As our Supreme Court said inIn re Crawford, 148 Wash. 265, 268 Pac. 871:

            "'. . . It is elementary law that, in the absence of constitutional or statutory authority, a warrant of arrest cannot be lawfully executed by arresting the accused beyond the territorial jurisdiction of the justice or court issuing it.  1 Chitty's Criminal Law 48; 1 Bishop's New Criminal Procedure (2d ed.) p. 140. . . .'

            "We further believe that the legislators enacting the bastardy statutes did not intend that such a warrant would extend justice court jurisdiction beyond that set out in Rem. Rev. Stat. 47, supra, because,  [[Orig. Op. Page 3]] as shown in the underlined portion of Rem. Rev. Stat. 1970,supra, alternate methods of bringing the accused to answer were provided, to wit: by complaint made in the county of the mother's residence, or by complaint made where the accused person may be found."

            In 1953, and again in 1957, this office was asked to review this opinion.  On each occasion, though recognizing arguments in support of a contrary conclusion, the attorney general determined to adhere to the conclusions stated therein.  Following our review of the matter in 1957, we made specific reference to the problem in our 1959 biennial report to the legislature and recommended the enactment of an express amendment to RCW 26.24.010, supra, designed to permit filiation warrants to be executed anywhere in the state.  However, the legislature declined to adopt this suggestion, and, in fact, has never amended the statute since its original enactment as § 1, chapter 203, Laws of 1919.

            Thus, the general position of this office (except as hereinafter indicated) must remain that a warrant issued in a filiation proceeding commenced under the provisions of RCW 26.24.010, supra, can only be executed in the county where it is issued.  However, in view of certain language appearing in a very recent decision of our state supreme court, we believe it now might very well be argued that where the warrant is issued by a district court judge (justice of the peace) of a justice court located within a county which is governed by the 1961 justice court act (chapter 299, Laws of 1961), the warrant would be amenable to execution anywhere in the state.  As you are aware, the 1961 justice court act applies, by its own terms, to all class AA and class A counties, and to such other counties as have, by action of their respective boards of county commissioners, determined to adopt the provisions of this legislation in accordance with § 2 (RCW 3.30.020) thereof.

            The particular provision of the 1961 justice court act which is instantly in point is § 121, chapter 299, Laws of 1961 (RCW 3.66.100), which provides:

            "Every justice having authority to hear a particular case may issue civil process in and to any place in the county or counties in which his district is located, andcriminal process in and to any place in the state."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            The proposition, of course, which would have to be supported in order to reach a conclusion that a filiation warrant, where issued by a justice court operating under authority of this section, has state‑wide enforceability is that the warrant is a form of criminal process.

            Prior to the decision of our state supreme court in the case ofState v. Kline, 69 W.D.2d 109 [[69 Wn.2d 107]](1966), we would have seriously questioned the validity of such a proposition.  In 1903, speaking of the filiation statute then in effect, and again in 1951, speaking of the present law, our court gave every indication that it conceived of a filiation proceeding as being a civil rather than a criminal action.  See,State v. Tieman, 32 Wash. 294, 73 Pac. 375 (1903), andState v. Taylor, 39 Wn.2d 751, 238 P.2d 1189 (1951).  This was because the statutes (both the pertinent section of the 1881 territorial code, and the present chapter 203, Laws of 1919), though providing for "prosecution" of a bastardy claim ". . . in the name of the state of Washington, . . . by the prosecuting attorney of the county where brought, . . ." (RCW 26.24.030; cf., §§ 1214-1221 of the Code of 1881) provided for no "punishment" of the putative father.  Rather, both the territorial statute and the 1919 enactment simply provided for entry of a judgment ordering the father to support his child.  The present statutory provision on this point is § 9, chapter 203, Laws of 1919 (RCW 26.24.090), which provides:

            "In the event the issue be found against the accused, or whenever he shall, in open court, have confessed the truth of the accusation against him, he shall be charged by the order and judgment of the court to pay a sum to be therein specified, during each year of the life of such child, until such child shall have reached the age of sixteen years, for the care, education and support of such child, and shall also be charged thereby to pay the expenses of the mother incurred during her sickness and confinement, together with all costs of the suit, for which costs execution shall issue as in other cases.  And the accused shall be required by said court to give bond, with sufficient surety, to be approved by the judge of said court, for the payment of such sums of money as shall be so ordered by said court.  Said bond shall be made payable to the people of the state of Washington, and conditioned for the true and faithful payment  [[Orig. Op. Page 5]] of such yearly sums, in equal quarterly installments, to the clerk of said court, which said bond shall be filed and preserved by the clerk of said court."

            However, in the recent case of State v. Kline, supra, our court seems to have receded from this position at least to some extent.  The crucial question before the court in the Kline case was whether a particular filiation proceeding had been commenced within the time fixed by § 16, chapter 203, Laws of 1919 (RCW 26.24.160), which provides as follows:

            "No prosecution under this act shall be brought after two years from the birth of the child:  Provided, the time during which any person accused shall be absent from the state shall not be computed."

            The child in question had been born on April 27, 1963.  The complaint was filed and the warrant was issued on August 11, 1964, but service of the warrant and arrest of the defendant were not accomplished until May 11, 1965, two weeks more than two years after the birth of the child.  Accordingly, the defendant contended that, by virtue of RCW 4.28.010 (providing for commencement ofcivil actions by service of summons) the action was not timely brought.  On the other hand the state, arguing that filiation proceedings are governed by theprocedure applicable to criminal cases, urged that the action had been commenced by thefiling of the complaint (RCW 10.16.010) and, therefore, since the complaint was filed within two years of the birth of the child, the action was timely commenced.

            Our court, though affirming a trial court judgment denying the defendant's motion to dismiss, did not squarely pass upon the civil versus criminal nature of the proceedings.  Rather, the court explained its ruling as follows:

            "In view of our conclusion reached as to the problem now before the court, it would seem unnecessary to decide whether filiation proceedings are civil, as contended by the appellant, or are criminal in nature, as argued by the state.  It is true that inState v. Tieman, 32 Wash. 294, 73 Pac. 375 (1903), a bastardy proceeding was held to be clearly civil.  This case was decided under an 1881 act which provided procedure  [[Orig. Op. Page 6]] consisting of a complaint to be filed in superior court, a summons served in the usual manner, and a trial as in civil actions.  If found guilty, a judgment was to be entered which could be enforced by an execution against the property of the defendant.

            "Citing this case and stating it to be the weight of authority, the court, inState v. Taylor, 39 Wn.2d 751, 238 P.2d 1189 (1951), again held filiation proceedings to be civil.  The court made no comment on the fact that the proceedings were then brought under the provisions of Laws of 1919, chapter 203 (codified as RCW chapter 26.24 [[chapter 26.24 RCW]], the present (codified as RCW chapter 26.24, the present statute).  Under this latter statute, the procedure is no longer clearly civil in nature, but almost entirely follows that of a criminal action.  Upon a complaint being filed in a court of a justice of the peace, a warrant is issued, the defendant is arrested and brought before the court and may be required to give bond to assure his appearance at a hearing, and, in default thereof, may be committed to the county jail.  If the justice of the peace determines that sufficient cause appears, he binds the defendant over to the superior court.  Again, a bond may be required of the defendant, or upon failure to give such bond, the defendant may be committed to jail to await his trial in superior court.

            ". . .

            "We hold that the commencement of filiation proceedings, being in justice court, is governed by the rules for courts of limited jurisdiction.  In view of these rules andregardless of the civil or criminal nature of a filiation proceeding, the prosecution was commenced by the filing of the complaint and was therefore brought within 2 years of the birth of the child."  (Emphasis supplied.)

            Because our court in this recent case did not squarely hold  [[Orig. Op. Page 7]] that a filiation proceeding is commenced by criminal process, the case cannot be said to be clear-cut authority for the essential proposition (in terms of application of RCW 3.66.100,supra) that a filiation warrant issued under RCW 26.24.010, supra, is "criminal process," and therefore amenable to state‑wide execution.  However, the portions of the opinion which we have quoted above seem to strongly indicate that, because of the character of such a warrant and of a filiation proceeding in general, the initiating process might very well now be held to be criminal process were this question precisely placed before the court.

            It is evident that only the court can finally decide this jurisdictional question.  Accordingly, in view of all of the factors and circumstances above noted, we simply suggest that, in a proper filiation case you place the issue before your justice court by asking for issuance of a state‑wide [[statewide]]filiation warrant‑-supporting your request with an argument that, in accordance with the views expressed inState v. Kline, supra, the warrant is a form of criminal process within the purview of RCW 3.66.100, supra.  This, of course, would be the first step in obtaining a final judicial determination of the jurisdictional question you have asked.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

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