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AGO 1994 No. 7 - April 26, 1994
AGO Opinion Header Image
Christine Gregoire | 1993-2004 | Attorney General of Washington

COURTS-STATE AGENCIES-TRAVEL AND EXPENSE REGULATIONS-Applicability of state travel and expense regulations to judicial branch of state government.

1.   RCW 43.03.050 and .060, which authorize the Office of Financial Management to prescribe travel and expense reimbursement policies for state agencies, include courts and other agencies in the judicial branch of state government.

2.  To the extent it can be justified by varying circumstances, the Office of Financial Management may prescribe different expense reimbursement rates for judicial branch agencies than for other state agencies; however, the mileage rate established under RCW 43.03.060 must be uniform for all employees.

                                                                   * * * * * * * * * *

                                                                   April 26, 1994

HonorableBrian Sonntag
State Auditor
Legislative Building, MS 40021                           
Olympia, WA  98504-0021

                                                                                                Cite as:   AGO 1994 No. 7

Dear Auditor Sonntag:

            You have requested our opinion whether the judicial branch of state government is subject to certain statutes regarding travel expense reimbursement.  We paraphrase your questions as follows:

            1.         Do RCW 43.03.050 and .060 grant authority to the Office of Financial Management to prescribe travel regulations to members of the judicial branch?

            2.         If the answer to Question 1 is yes, may the Office of Financial Management prescribe to members of the judicial branch regulations which differ from those that apply to other state officials or employees?

            We answer yes to both questions for reasons outlined below.

                                                                    ANALYSIS

            Question 1:

            Do RCW 43.03.050 and .060 grant authority to the Office of Financial Management to prescribe travel regulations to members of the judicial branch?

            RCW 43.03.050 provides, in relevant part:

                        (1)        The director of financial management shall prescribe reasonable allowances to cover reasonable and necessary subsistence and lodging expenses for elective and appointive officials and state employees while engaged on official business away from their designated posts of duty . . . [and] may prescribe and regulate the allowances provided in lieu of subsistence and lodging expenses and may prescribe the conditions under which reimbursement for subsistence and lodging may be allowed.

            RCW 43.03.060 provides, in relevant part:

                        (1)        Whenever it becomes necessary for elective or appointive officials or employees of the state to travel away from their designated posts of duty while engaged on official business, and it is found to be more advantageous or economical . . . that travel be by privately-owned vehicle . . . a mileage rate established by the director of financial management shall be allowed.

            The first step in analyzing the applicability of these sections to the judicial branch is determining whether judges are "elective officials", "appointive officials", or "state employees"  within the meaning of these particular statutes.

            We note that the Washington Constitution refers to judges in various ways.  For example, article 1, section 33, which addresses recall of elective officers, states:  "Every elective public officer of the state of Washington except judges of courts of record is subject to recall."  (Emphasis added.)  Article 30, section 1, which addresses compensation of public officers, states:  "The compensation of all elective and appointive state, county, and municipal officers who do not fix their own compensation, including judges of courts of record. . . may be increased during their terms[.]"  (Emphasis added.)  These two sections expressly mention judges as elective or appointive officials of the state.  Article 4, section 4 of the Washington Constitution, which confers upon the Supreme Court original jurisdiction in "habeas corpus, andquo warranto and mandamus as to all state officers",  was held inState ex rel. Edelstein v. Foley, 6 Wn.2d 444, 107 P.2d 901 (1944), to include superior court judges even though the constitutional provision did not expressly so include judges.  InState ex rel. Dyer v. Twichell, 4 Wash. 715, 31 P. 19 (1892), the Supreme Court held that superior court judges are "state officers" under article 6, section 8, regarding the times for holding elections of "all state officers", and stated that:

                        In certain places in the constitution reference is made to judicial officers in such a way as to show that they are not necessarily included in the designation state officers, but it does not follow that they are not included within such designation as used in some parts of the constitution. . . . We think the reasonable construction of the whole of the constitution will show that superior court judges are included within the designation of state officersas used in said § 8.

Dyer, at 720 (emphasis added).

            We thus conclude that the term "state officer" usually includes judges of state courts, although the cases suggest that the term might have a narrower meaning in some contexts.  Although RCW 43.03.050 and .060 do not expressly mention members of the judicial branch, the statutes are referenced in other provisions concerning payment of expenses for judicial branch employees.  RCW 41.04.300 provides:

                        Except as otherwise provided by law the payment of travel expenses by the state to any appointive official or employee of any commission, agency, or other body of the executive,judicial, or legislative branches of state government shall be in accordance with RCW 43.03.050 and 43.03.060 as now existing or hereafter amended.

(Emphasis added.)

            While RCW 41.04.300 refers to "appointive" officials and employees, subsections (1) and (3) of RCW 43.03.050 contain broader language encompassing all types of positions within the three branches of state government:  "elective and appointive officials and state employees".  Reading these two provisions together, it appears the Legislature intended to include the judicial branch and its elective officials.  Thus, elected judges and appointed employees of courts and judicial branch agencies are covered by RCW 43.03.050 and .060.

            Note, however, that these provisions apply to state officials.  Thus, they apply to the state appellate courts and to superior courts in certain circumstances, but not to district, municipal, and other local courts.  Salaries and expenses for superior court judges are paid partially by the state and partially by the counties.  Related statutes delineate and clarify those circumstances in which the state will reimburse superior court judges' travel expenses.  For example, RCW 2.04.250(2)(a) provides that retired judges and superior court or court of appeals judges serving pro tempore in the Supreme Court will receive "[r]eimbursement for subsistence, lodging, and travel expenses in accordance with the rates applicable to state officers under RCW 43.03.050 and 43.03.060".  Also, visiting superior court judges assigned to replace superior court judges serving pro tempore on the Supreme Court shall receive such reimbursement.  See also RCW 2.06.160 (which makes similar provisions for judges serving pro tempore in the courts of appeals).  RCW 2.08.115 provides for travel reimbursement pursuant to RCW 43.03.050 and .060 to superior court judges serving multiple counties when the judges' duties require travel from their residences to the other counties, even though the other counties may be designated posts of duty under RCW 43.03.050 and .060.  RCW 2.08.170 allows reimbursement for travel expenses pursuant to RCW 43.03.050 and .060 to superior court judges holding sessions in any county other than their own.  However, RCW 3.58.040, which addresses travel expenses fordistrict court judges, states they shall receive their "reasonable traveling expenses" when engaged in the business of court.  No reference is made in that section to RCW 43.03.050 and .060, arguably underscoring that these judges are not covered by RCW 43.03.050 and .060.

            Reading all of the above statutes together, we conclude that members of the judicial branch are "elective officials" under RCW 43.04.050 and .060, and state judges are, therefore, subject to travel regulations prescribed by the Office of Financial Management (OFM).  This raises whether, in general, the Legislature can subject the judiciary to travel regulations administered by the executive branch, or whether such a law violates the constitutional separation of powers doctrine.  First, this office attaches a presumption of constitutionality to any duly enacted state legislation, and we refrain from rendering an official opinion on such an issue.  Second, our Supreme Court stated inIn re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976), that complete separation of powers was never intended by the constitution and overlapping functions were created deliberately.  So long as the courts can properly administer justice and fulfill their constitutional duties, the imposition of authority over some aspects of the courts' functioning by the other branches of government will not violate the separation of powers doctrine.  See alsoShort v. Demopolis, 103 Wn.2d 52, 691 P.2d 163 (1984).  We discuss this doctrine further in our analysis of Question 2.  We see no obvious reason why following OFM travel regulations would keep courts from performing their constitutional duties.

            In sum, we conclude that the Office of Financial Management can, pursuant to RCW 43.03.050 and .060, prescribe travel regulations governing members of the judicial branch of state government.

            Question 2:

            If the answer to Question 1 is yes, may the Office of Financial Management prescribe to members of the judicial branch regulations which differ from those that apply to other state officials or employees?

            We note, initially, that RCW 43.03.050 does not, either in its words or in its necessary implication, require OFM to adopt a single set of expense regulations for all agencies in state government.  The authority to "prescribe and regulate . . . allowances" is broad enough to permit different allowances for different categories of agencies, officers, and employees, if OFM can find a rational basis for doing so, consistent with its statutory authority.  By contrast, however, RCW 43.03.060, with its reference to "a mileage rate", does not permit OFM to adopt multiple mileage rates for different officers or agencies.

            To the extent OFM has discretion to consider differences among agencies in its regulations, it makes sense to recognize the separation of powers issues inherent in regulation of the judiciary, a coordinate branch of state government.

            As mentioned above, complete separation of powers was never intended by our state's constitution.  In re Juvenile Director, supra.  While we presume that RCW 43.03.050 and .060 do not violate the separation of powers doctrine, the separation of powers doctrine should be a guide in implementing the travel expense reimbursement statutes.  The purpose of the doctrine is "to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed".  In re Juvenile Director, 87 Wn.2d at 245.  No regulation of the judiciary by the other branches of government may interfere with the court's administration of justice or fulfillment of its constitutional duties.  Id.;Short v. Demopolis,supra.  We recognize that the separation of powers doctrine in this context can create ambiguities and uncertainties as to the extent or nature of the regulations OFM might impose on the judiciary.  These ambiguities, and the differences of opinion that may arise from them, can best be avoided by the executive and the judicial branches working together in the spirit of reciprocity and interdependence as mentioned by the courts.

            Therefore, we conclude that the separation of powers doctrine requires OFM to consider the nature and needs of the judicial branch in formulating travel reimbursement regulations for the judiciary, to the extent the authorizing Legislature allows.  If the judiciary's needs require regulations which differ from those applicable to other state officials or employees, OFM may promulgate different regulations for the judicial branch.

                                                                 CONCLUSION

            The Office of Financial Management, pursuant to RCW 43.03.050 and .060, is authorized to prescribe travel regulations applicable to members of the judicial branch of state government.  The Office of Financial Management may prescribe travel regulations for the judicial branch which differ from regulations governing other officials or state employees.

            We trust our opinion will be of assistance to you.[1]

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General

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    [1]We are grateful to former Senior Counsel Nancy Thygsen Day, who did most of the research and writing on this opinion before leaving the office in March.

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