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AGO 1994 No. 4 - March 25, 1994
AGO Opinion Header Image
Christine Gregoire | 1993-2004 | Attorney General of Washington

DISTRICT COURTS--DISTRICT JUDGES PRO TEMPORE--SALARY AND COMPENSATION--COUNTIES--Authority of district courts to employ pro tempore judges to handle excess workload

1.  A district court judge lacks authority to engage a judge pro tempore to assist in handling an excess court workload.

2.   When a judge pro tempore serves a district court for more than 30 days in a year because of the absence of the regular judge owing to disqualification from hearing one or more cases, the salary of the regular judge must be reduced as specified in RCW 3.34.130(1), unless the judge's absence meets one of the exceptions specified in the statute.

3.  RCW 3.34.130, which generally requires a reduction in a district court judge's salary when a judge pro tempore serves in the judge's place for more than 30 days in a year, does not apply when a visiting judge from another court serves pursuant to RCW 3.34.140.

                                                                   * * * * * * * * * *

                                                                  March 25, 1994

HonorableGary P. Burleson
Mason County Prosecuting Attorney
411 North Fifth Street                                                             
Shelton, WA 98584

                                                                                    Cite as:  AGO 1994 No. 4

Dear Mr. Burleson:

            By letter previously acknowledged, you asked our opinion regarding questions which we paraphrase as follows:

            1.  Does a district court judge have the authority to use a judge pro tempore to assist with excess workload of the court?

            2.  If a district court judge does have the authority to use a judge pro tempore to assist with excess workload, and if a judge pro tempore is used for such purposes, is the regular district court judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the judge pro tempore?

            3.  If a judge pro tempore serves because the regular district court judge has been disqualified, is the regular judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the judge pro tempore?

            4.  If a visiting judge serves because the regular district court judge has been disqualified, is the regular judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the visiting judge?

            We answer the first and fourth questions in the negative.  We do not reach the second question because of our answer to the first.  We answer the third question as set forth in the analysis below.[2]

                                                                BACKGROUND

            Your questions require an understanding of the creation and funding of state district courts.   The inquiry begins with the state constitution.  "The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide."  Const. art. 4, § 1.  The state constitution also provides, in pertinent part:  "The legislature shall determine the number of justices of the peace to be elected and shall prescribe by law the powers, duties and jurisdiction of justices of the peace."  Const. art. 4, § 10 (amend. 65).

            References to justices of the peace in the state constitution and in statute are construed as meaning district court judges, and references to justice courts or justice of the peace courts are construed as meaning district courts.  See RCW 3.30.015;In re Eng, 113 Wn.2d 178, 185, 776 P.2d 1336, 1340 (1989).[3]

            The Legislature has specified the number of district court judges to be elected in each county in RCW 3.34.010.[4]  See also RCW 3.30.020 (reduction in number of district court judges where certain cities operate municipal courts pursuant to chapter 35.20 RCW).  Any change in the number of district court judges is determined by the Legislature upon recommendation of the supreme court.  RCW 3.34.020(1).  See alsoState ex rel. Royal v. Board of Yakima Cy. Comm'rs, No. 59713-8, slip. op. (Wn. S. Ct. March 10, 1994) (providing that the county use districting plan procedures to increase number of district court judges to level specified in RCW 3.34.010).  The supreme court's recommendation is based on a weighted caseload analysis which takes into account several factors, including existing judicial resources, types and numbers of cases, and time required to process various case types.  RCW 3.34.020(1).  Full-time district court judges shall devote all of their time to the office and shall not engage in the practice of law.  RCW 3.34.040.  Other district court judges must devote sufficient time to properly fulfill the duties of the office and may engage in other occupations.  Id.

            A county legislative authority may request a change in the number of full- or part-time district court judges.  RCW 3.34.020(5)(a).  Additional district court judge positions are effective only if the legislative authority of the county in which the judge is to serve agrees to pay the expense of the additional judicial positions.  RCW 3.34.025.  The Administrator for the Courts must prepare a judicial impact note detailing local or state costs associated with recommended changes in the number of district court judges.  RCW 3.34.020(3).

                                                                    ANALYSIS

            Question 1:

            Does a district court judge have the authority to use a judge pro tempore to assist with excess workload of the court?

            In contrast to the relatively broad authority provided for the temporary performance of judicial duties in most other state courts,[5]the use of judges pro tempore in district courts is narrowly circumscribed.  "Each district court shall designate one or more persons as judge pro tempore who shall serve during thetemporary absence, disqualification, or incapacity of a district judge."  RCW 3.34.130(1) (emphasis added).

            Where a statute is clear and unambiguous, the meaning of the statute is to be derived solely from the language of the act.  Washington Ins. Guar. Ass'n v. Mullins, 62 Wn. App. 878, 882, 816 P.2d 61 (1991).  Given the express wording of RCW 3.34.130(1), a judge pro tempore may assist with a district court's excess work only if the judge pro tempore's service under those circumstances can be said to be occurring during the "temporary absence, disqualification, or incapacity" of the regular judge.  "[T]he express mention of one thing in a statute implies exclusion of another."  Mullins, 62 Wn. App. at 883.

            Your question posits a case in which the judge pro tempore is serving to assist the regular judge with excess work, and therefore, for the purposes of the question, the regular judge is neither absent nor disqualified.  The issue, then, is whether the judge pro tempore can be said to be serving during the "incapacity" of the regular judge.

            We are unaware of any Washington cases which have interpreted the word "incapacity" in the context of RCW 3.34.130(1).  In order to ascertain the meaning of a word as used in a statute, the court considers both the statute's subject matter and the context in which the word is used.  In re Pepperling, 65 Wn. App. 17, 21, 827 P.2d 347 (1992).  If the statute does not define the word, the court may look to the ordinary dictionary definition to aid interpretation.  Id. at 21.

            The word "incapacity" is defined as "the quality or state of being incapable: INABILITY, INCAPABILITY; lack of physical or intellectual power or of natural or legal qualification".  Webster's Third New International Dictionary 1141 (1981) (emphasis in original).  Because the question assumes the regular district court judge is serving in his or her court the judge presumably does not lack either the legal qualification to do so or the physical or intellectual ability to perform the duties required.  Therefore, because a judge pro tempore serving only for purposes of assisting with the regular judge's excess work could not be said to be serving because of the "temporary absence, disqualification, or incapacity" of the regular judge, a reasonable reading of RCW 3.34.130(1) would preclude authority to use a judge pro tempore for excess workload.[6]

            This reading of RCW 3.34.130(1) is consistent with the purposes and policies behind chapter 3.34 RCW.  As a general matter, the Legislature intends that all courts in the state, including district courts, function efficiently with the workload equitably distributed.  See RCW 2.56.040, .080.  The statutory framework for district courts, as revealed in chapter 3.34 RCW, evidences strict controls on the number of district court judicial positions created and funded.  See RCW 3.34.010 (number of district court judges per county specified); RCW 3.34.020(1) (weighted caseload analysis prior to legislative changes in number of district court judges); RCW 3.34.130(1) (reduction of regular judge's annual salary for each day of service by a judge pro tempore over 30 days absent certain exceptions).  The Legislature also chose, in RCW 3.34.130(1), to limit the circumstances under which a judge pro tempore may serve in district court, rejecting the grant of broader authority for use of judges pro tempore as provided in other courts.  Using a judge pro tempore to address excess work in a district court and running, in effect, a "double court", circumvents the detailed process provided in chapter 3.34 RCW, which anticipates the amount of district court business in each county and provides as many judicial positions as local and state budgets allow.

            To summarize, RCW 3.34.130(1) does not grant district court judges authority to use judges pro tempore to assist them with excess work because such authority cannot be found in a reasonable reading of the statute.  We are likewise unaware of any other authority which would allow use of judges pro tempore in district courts under these circumstances.[7]

            Question 2:

            If a district court judge does have the authority to use a judge pro tempore to assist with excess workload, and if a judge pro tempore is used for such purposes, is the regular district court judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the judge pro tempore?           

            Because the statute does not provide for appointment of a judge pro tempore to assist with the court's heavy caseload, the salary reduction provisions of RCW 3.34.130(1) are inapplicable.  RCW 3.34.130(1) provides for service of pro tempore judges only during the temporary absence, disqualification, or incapacity of the district court judge.  Concomitantly, the statute provides for reduction in the salary of the judge "in whose place he or she serves", which would be during temporary absence, disqualification, or incapacity.  These are the only circumstances under which a salary reduction is required by the statute.

            Question 3:

            If a judge pro tempore serves because the regular district court judge has been disqualified, is the regular judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the judge pro tempore?

            A judge pro tempore may serve in a district court during the temporary absence, disqualification, or incapacity of the regular district court judge.  RCW 3.34.130(1).  The grounds for disqualification are addressed in statute and court rule.  See RCW 3.34.110, 3.20.100, 3.66.090(1); CRLJ 40(f); CrRLJ 8.9.[8]

            The same statutory provision which allows service by a judge pro tempore in district court provides in relevant part:

            For each day that a judge pro tempore serves in excess of thirty days during any calendar year, the annual salary of the judge in whose place he or she serves shall be reduced by an amount equal to one-two hundred fiftieth of such salary: PROVIDED, That each full time district judge shall have up to fifteen days annual leave without reduction for service on judicial commissions established by the legislature or the chief justice of the supreme court.  No reduction in salary shall occur when a judge pro tempore serves while a district judge is using sick leave granted in accordance with RCW 3.34.100.[[9]]

RCW 3.34.130(1).

            Considering the rules of statutory construction referenced above, it is clear that there are only two circumstances under which the salary of the regular judge is not reduced for every day of service over 30 days by a judge pro tempore: first, while the regular judge is serving on certain judicial commissions, and second, while the regular judge is using sick leave.  The Legislature did not exempt days served by a judge pro tempore because of the disqualification of the regular judge.[10]

            We realize this reading of the statute may result in reducing the salary of a regular district court judge who is attending to other court business while the judge pro tempore serves in the case in which the regular judge has been disqualified.  The Legislature, however, did not choose to exempt that circumstance from the days which count toward the 30 days after which the regular judge's annual salary is reduced, and we, therefore, cannot do so here.

            To summarize, where a judge pro tempore has served more than 30 days in a year because the regular district court judge has been disqualified, the annual salary of the regular district court judge is reduced pursuant to RCW 3.34.130(1) for each day of service by the judge pro tempore.  The Legislature did not choose to include these circumstances among the exceptions to the salary reduction provision in the statute.

            Question 4:

            If a visiting judge serves because the regular district court judge has been disqualified, is the regular judge's annual salary reduced pursuant to RCW 3.34.130(1) for each day of service by the visiting judge?

            District court judges may hold sessions in any district in the state at the request of the judge or majority of judges in the visited district.  RCW 3.34.140.  The visiting judges must first determine that the "state of business" in their districts allows their absence.  Id.  No judge pro tempore shall be required to serve during the regular judge's absence.  Id.

            The only time the annual salary of a district court judge is reduced is for service of a judge pro tempore.  See RCW 3.34.130(1).  The statute does not require reduction of the regular judge's annual salary for days served by a visiting judge.  Id.  Therefore, according to the express language of the statute, the regular judge's annual salary is not reduced pursuant to RCW 3.34.130(1) for each day a visiting judge serves upon disqualification of the regular judge.  This reading of the statute comports with legislative concern for efficient use of judicial resources because it encourages the use of existing judicial positions before resorting to judges pro tempore and the attendant additional expense.

            To summarize, where a visiting judge is serving because the regular district judge has been disqualified, the annual salary of the regular district judge is not reduced pursuant to RCW 3.34.130(1) for each day of service by the visiting judge.  By the express language of the statute, the Legislature did not require reduction of the regular judge's annual salary for days served by a visiting judge.

            We trust the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        CHERYL A. NIELSON
                                                                        Assistant Attorney General

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Enclosure


    [2]The questions as you phrased them implicated the constitutionality of RCW 3.34.130.  By long-standing tradition, this office has declined to issue opinions regarding the constitutionality of state statutes.  Therefore, we have paraphrased your questions so as to avoid the constitutional issues.

    [3]The Legislature's efforts to reorganize and streamline courts of inferior jurisdiction include the following:  The Justice Court Act of 1961 (Laws of 1961, ch. 299), which evidenced a legislative "intent to create an integrated and consistent court system to replace the maze of lower courts provided in chapters 3.04 through 3.28 and Title 35 RCW" (State v. Edmonds Municipal Court, 27 Wn. App. 762, 765, 621 P.2d 171 (1980)); the Court Congestion Reduction Act of 1981 (Laws of 1981, 1st Ex. Sess., ch. 331), in which the Legislature modified district court and small claims court jurisdiction, certain notice requirements, and appellate court filing fees; the Court Improvement Act of 1984 (Laws of 1984, ch. 258), which evidenced concerns about costs and the "inconsistent, obsolete and confusing statutes relating to the courts of limited jurisdiction" (Final Legislative Report, 48th Legislature (1984), at 195).  The 1984 Act required that judicial impact notes be prepared to gauge the effect of bills on the court system, and expanded authority for the establishment of local mandatory civil arbitration programs and local dispute resolution centers.  Id.

    [4]Chapters 3.30 through 3.74 RCW apply to each county with a population of 210,000 or more and to each county with a population of less than that number upon majority vote of the county legislative authority.  RCW 3.30.020.  It is our understanding, based on information provided by you to this office, that Mason County has opted in to the provisions of chapters 3.30 through 3.74 RCW.

    [5]The state constitution provides that "[w]hen necessary for the prompt and orderly administration of justice", the supreme court may authorize judges or retired judges of courts of record to temporarily perform judicial duties in the supreme court, and may also authorize any superior court judge to perform judicial duties in any superior court.  Const. art. 4, § 2(a) (amend. 38).  See also RCW 2.04.240 (judges pro tempore in supreme court); Const. art. 4, § 7 (amend. 80) (exchange of judges and judges pro tempore in superior court); RCW 2.08.180 (service by judge pro tempore in superior court requiring consent of parties); RCW 2.08.140 (visiting judge in superior court at direction of governor); RCW 2.08.150 (visiting judge in superior court at request of judge or judges); RCW 35.20.200 (providing for appointment of judges pro tempore in municipal courts in cities of over 400,000 who may act in the absence of or in addition to the regular judges "when the administration of justice and the accomplishment of the work of the court make it necessary").

    [6]Our interpretation of RCW 3.34.130(1) is consistent with the use of judges pro tempore in another context.  SeeIn re Eng, 113 Wn.2d 178, 776 P.2d 1336 (1989) (concluding a city improperly exceeded the authority provided under a municipal court judge pro tempore statute by appointing judges pro tempore to serve full time in a separate courtroom).

             Our construction of the word "incapacity" is consistent with other provisions of law which speak of the "disability" of judges.  See RCW 3.50.090 (providing for the use of judges pro tempore who serve upon filing of an affidavit of prejudice, or the absence or disability of the regular judge in certain municipal courts); CRLJ 63 ("death, sickness or other disability"); CrRLJ 6.11 (disability where judge is "unable to continue").  We are not aware of any Washington cases which hold that either the word "disability" or the word "incapacity" include a judge's inability to serve on a particular case because of excess workload.

    [7]We recognize that district courts have certain inherent powers essential to the due administration of justice.  See, e.g., O'Connor v. Matzdorff, 76 Wn.2d 589, 458 P.2d 154 (1969) (inherent power to waive prepayment of justice court fees in civil cases); State ex rel. McFerran v. Justice Court of Evangeline Starr, 32 Wn.2d 544, 202 P.2d 927 (1949) (inherent power of justice of the peace to disqualify himself on grounds of bias and prejudice).  However, the exercise of inherent power should be resorted to only where "established methods fail or when an emergency arises".  In re Salary of Juvenile Director, 87 Wn.2d 232, 250, 552 P.2d 163 (1976).  We have not been presented with facts which would implicate the exercise of inherent powers, and therefore we do not reach these issues.

    [8]Legislative history indicates that "disqualification" under RCW 3.34.130(1) encompasses affidavits of prejudice.  Disqualification for prejudice, codified at RCW 3.34.110, was established by chapter 299, Laws of 1961, section 20.  The salary reduction provisions of RCW 3.34.130(1) were established in section 22 of the same act.  Therefore, the Legislature clearly had affidavits of prejudice in mind when referring to "disqualification" in the salary reduction provisions of RCW 3.34.130(1).

    [9]District judges are given sick leave "in the same manner as other county employees".  RCW 3.34.100.

    [10]You should be aware that the 53rd Legislature has just revised RCW 3.34.130(1) by House Bill 2282, a copy of which is attached to this opinion for your information.  House Bill 2282 was signed by the Governor and filed with the Secretary of State on March 21, 1994.  The bill creates an additional circumstance under which the salary of the regular judge is not reduced for every day of service over 30 days by a judge pro tempore for instances in which the regular judge has been disqualified by an affidavit of prejudice.

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