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AGO 1968 No. 11 - March 05, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


COURTS - JUDGES - COUNTIES - APPOINTMENT OF COURT COMMISSIONERS IN MULTICOUNTY JUDICIAL DISTRICTS UNDER CHAPTER 87, LAWS OF 1967, EX. SESS.

Under the provisions of RCW 2.24.010, as amended by chapter 87, Laws of 1967, Ex. Sess., the superior court judge or judges of a multicounty judicial district may, in his or their discretion, continue to appoint a court commissioner for each county situated within the judicial district or, in the alternative, appoint a single court commissioner to serve the entire judicial district.

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                                                                   March 5, 1968

Honorable George F. Hanigan
Prosecuting Attorney
Wahkiakum County
P.O. Box 56
Cathlamet, Washington 98612

                                                                                                                 Cite as:  AGO 1968 No. 11

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            In view of the enactment of chapter 87, Laws of 1967, Ex. Sess., amending RCW 2.24.010, is there henceforth to be only one court commissioner for each multicounty judicial district in the state, or conversely, may the judge or judges of such multicounty district, in his or their discretion, continue to appoint a court commissioner for each county situated within the judicial district?

            We conclude, for the reasons set forth in our analysis, that the judge or judges of a multicounty judicial district may either continue to appoint a court commissioner for each county situated within the judicial district or, in the alternative, appoint a single court commissioner to serve the entire district.

                                                                     ANALYSIS

            In order to answer your question, it is necessary to discuss the legislative history of RCW 2.24.010, and its relation to the Washington constitution.  Article IV, § 23, of the constitution, as adopted in 1889, provides for the appointment of court commissioners as follows:

             [[Orig. Op. Page 2]]

            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law."

            The legislature first passed a statute dealing with this subject in 1895.  Section 1, chapter 83, Laws of 1895, provided in part as follows:

            "There may be appointed from each county of this state, where there is no resident judge, by the judge or judges of the superior court having jurisdiction therein, one court commissioner for said county. . . ."  (Emphasis supplied.)

            Several years later, the Washington supreme court passed on this enactment inHoward v. Hanson, 49 Wash. 314, 95 Pac. 265 (1908).  The case involved a challenge to the authority of a particular court commissioner to act.  The court stated at pages 317-318:

            "It is next objected that the court of Snohomish county is without power to appoint a court commissioner.  This contention is based on the fact that Snohomish county has a resident judge, and the further fact that the legislature has apparently sought to limit the power of the court to appoint a court commissioner to those counties in which there is no resident judge.  But the power to appoint a commissioner is vested in the court by the constitution.  Article 4, § 23 of that instrument reads as follows:

            "'There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like  [[Orig. Op. Page 3]] duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law.'

            "This grant of power is supreme in the courts and the legislature is without power to take it away.  It does not limit the right of the court to appoint a court commissioner to those counties in which there is no resident judge, and in so far as the legislature has attempted to so limit it, its act is invalid for want of power."

            The year after the opinion in the Howard case was filed, the pertinent part of the statute (now RCW 2.24.010) was amended to read:

            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, a court commissioner for said county. . . ."  (Section 1, chapter 124, Laws of 1909.)

            This portion of RCW 2.24.010 remained the same until the 1967 amendment.  As amended by chapter 87, Laws of 1967, Ex. Sess., RCW 2.24.010 now reads as follows:

            "There may be appointed in each county or judicial district, by the judges of the superior court having jurisdiction therein, a court commissioner for said county or judicial district.  Such commissioner shall be a citizen of the United States and an elector of the countyor judicial district in which he may be appointed, and shall hold his office during the pleasure of the judgess appointing him."  (Underlined portion new language added by the 1967 amendment.)

            When enacting this amendment, the legislature must be presumed to have been aware of the earlier act which attempted to limit the appointment of court commissioners and of the court's  [[Orig. Op. Page 4]] decision in Howard with respect thereto.  See,In re Candell, 54 Wn.2d 276, 340 P.2d 173 (1959), as well asGraffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948), and cases cited therein.  Thus, with Article IV, § 23,supra, and the Howard decision,supra, in mind, the legislature should not be taken to have again attempted to enact a limitation on the power of the various superior court judges to appoint court commissioners by restricting their appointments to one commissioner per district in each multicounty judicial district.

            This does not mean that chapter 87, Laws of 1967, Ex. Sess., is to be given no effect.  To the contrary, it is presumed that the legislature does not indulge in vain and useless acts and that some significant purpose or object is implicit in every legislative enactment.  Kelleher v. Ephrata School District, 56 Wn.2d 866, 355 P.2d 989 (1960).  The apparent purpose or object of the 1967 amendment to RCW 2.24.010 was to empower the judge or judges in a multicounty judicial district to appoint one court commissioner who would have jurisdiction in the entire district.  However, such appointment is not required by the act and the judges may still choose to appoint a commissioner for each county within the judicial district, as provided for in the constitution.1/

             In other words, the decision of whether to appoint a court commissioner for each county within a judicial district or to appoint one commissioner for the entire district is vested in the judge or judges of the superior courts within that judicial district.  RCW 2.24.010, as amended by chapter 87, Laws of 1967, Ex. Sess., makes either alternative permissible.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

KENNETH R. AHLF
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This construction of the 1967 amendment, which is certainly permissible, is further consistent with the rule oft recognized by the court in such cases as Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944) that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in that respect, the former construction and not the latter will be adopted.

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