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Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1991 No. 32 -
Attorney General Ken Eikenberry

COMMISSION ON JUDICIAL CONDUCT ‑ APPOINTMENT ‑ Appointment of alternate members to Commission on Judicial Conduct

RCW 2.64.030 provides that the appointing authority may appoint alternate members to the Commission on Judicial Conduct to serve during a member's temporary disability, disqualification or inability to serve.  This statute provides for the appointment of one alternate for each Commission member, which alternate is paired with that member.  The appointing authority cannot appoint a pool of alternate members who could serve in some rotation fashion.

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                                                                November 8, 1991

Esther Garner, Executive Director
Commission on Judicial Conduct
Post Office Box 1817, EW-14
Olympia, Washington 98507
                                                                                                                 Cite as:  AGO 1991 No. 32


Dear Ms. Garner:

            In a letter previously acknowledged, you requested an Attorney General Opinion on a question we have rephrased as follows:

            Does RCW 2.64.030 permit the Commission on Judicial Conduct to have a pool of alternate members who could serve in some rotation fashion in place of an absent Commission member?

            For the reasons that follow, we answer your question in the negative.

            The Commission on Judicial Conduct consists of eleven members.  Const. art. 4, § 31 (amend. 85); RCW 2.64.020.

             [[Orig. Op. Page 2]]

            Three members are judges.  One judge member is selected by and from the court of appeals judges; one judge member is selected by and from the superior court judges; and one judge member is selected by and from the district court judges.  Id.

            Two members are selected by the state bar association from persons admitted to the practice of law in Washington.  Id.

            Six members are non-lawyers appointed by the governor.  Id.

            The term of each Commission member is four years.  Id.  If a member ceases to hold the position that qualified the member for appointment, membership on the Commission terminates.  RCW 2.64.030.  However, a member continues to participate in any hearing in progress at the end of his or her four-year term, or at such time as the member ceases to hold the position that qualified him or her for appointment.  Id.  Otherwise, the member may be removed from the Commission before the end of his or her term only if the appointing authority finds good cause.  Id.

            With respect to alternate Commission members, RCW 2.64.030 provides that "the appointing authority shall appoint an alternate to serve during a member's temporary disability, disqualification, or inability to serve."1/

             While your question did not specify what kind of a pooling arrangement you have in mind, we have thought of two pooling arrangements:

            1)         One would be a pool consisting of all alternates from which an alternate would be drawn without regard to whether the alternate is a judge, lawyer, or non-lawyer, and without reference to the category of the absent Commission member.

            2)         Second would be five pools, each appointed by one of the five appointing authorities.  Each pool would contain two or more members.

             [[Orig. Op. Page 3]]

            For the reasons we will set forth we have concluded that RCW 2.64.030 authorizes the appointment of a specific alternate for each Commission member.  First, the statute refers to "an alternate" which is clearly phrased in the singular not in the plural.  The plural but not the singular might refer to a group of alternates.

            Second, a basic rule of statutory construction is that a statute should be interpreted so as to carry out legislative intent.  Longview Fibre Co. v. Cowlitz Cy., 114 Wn.2d 691, 696, 790 P.2d 149 (1990).  Furthermore, a statute should be construed consistently with the policy and purpose of the act.  Id.  When choosing between two interpretations of a statute, courts choose the interpretation which best advances the purpose of the statute.  Matter of R., 97 Wn.2d 182, 187, 641 P.2d 704 (1982).

            The first pooling arrangement would be inconsistent with the apparent purpose of article 4, section 31 of the Washington Constitution and RCW 2.64.020.  Those provisions prescribe a specific composition for the Commission based on each Commission member's status as a non-lawyer, lawyer, or court of appeals, superior court, or district court judge.  The constitutional amendment approved by the electorate in 1989, in part to change the composition of the Commission, further underscores the importance of the designated composition.2/

            To maintain the prescribed composition of the Commission, an alternate must fit into the same category as the Commission member being replaced.  We, therefore, must find that the first pooling arrangement would not be permissible.

            We next turn to the second pooling arrangement mentioned above.  The relevant constitutional and statutory provisions vest the power of appointment in specific appointing authorities:  the Governor, the state bar association, and the court of appeals, superior court and district court judges.  A pooling arrangement which would allow the Commission or its staff to play any part in selecting an alternate from a pool to serve in a particular matter would be inconsistent with the constitutional and statutory provisions vesting that authority elsewhere.  Even if  [[Orig. Op. Page 4]] the selection method appeared to place no discretion in the Commission, as a practical matter the utilization of a pool would probably require the Commission or its staff to use some discretion in the process of seating an alternate under some circumstances.

            A pooling arrangement that allowed the appointing authority to designate the pool alternate would also be defective.  The appointing authority could use a pool of alternates to maintain an ongoing involvement in the Commission's activities.  If the appointing authority retained the authority to determine which alternate would function on individual specific occasions, the appointing authority would have an ongoing relationship with the Commission's activities.3/

            But, the Commission was created as an independent agency of the judicial branch.  Const. art. 4, § 31.4/

            Commission members do not serve at the pleasure of the appointing authorities, they serve four-year terms and are removable only for good cause.  Although the Constitution made no express provision relating to alternates, the Legislature, when providing for alternates, clearly intended that they would be substitutes for Commission members.  It is consistent with the objective of independence of the Commission that both the members and the alternates must act independently of their appointing authorities once they have been selected.

            A continuing involvement by an appointing authority in a process of designating who from a pool will sit on a specific proceeding would be inconsistent with that independence.  The appointing authority therefore should not be permitted to pick or refuse to pick a particular alternate for a particular matter.  Nor should the appointing authority, if displeased with a particular alternate's performance of his or her duties, be permitted to refuse to utilize the alternate for other proceedings.

             [[Orig. Op. Page 5]]

            In summary, we must construe the phrase "an alternate" in conjunction with the policies relating to the composition and independence of the Commission.  We therefore conclude that the best construction of RCW 2.64.030 is that it provides for the appointment of one alternate for each Commission member, which alternate is paired with that member.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The Commission has adopted WAC 292-08-040(5) which states in pertinent part:  "The chairperson will call upon an alternate member selected by the appropriate appointing authority to serve in the place of a member whenever a member is disabled, disqualified, or unable to serve."

2/Senate Joint Resolution 8202 (1989), contained a constitutional amendment raising the number of non-lawyer Commission members from four to six.  The 1989 Official Voter's Pamphlet contained a statement in support of the amendment which described one of its effects as "non-lawyers are given a majority of the membership."

3/Even if the process of selecting an alternate from the pool appeared to place no discretion in the appointing authority, the existence of a pool would create an opportunity for the appointing authority to become involved in selecting alternates for particular matters.

4/The intent of this provision likely is to specify the Commission's status within state government.  Nevertheless, the section also indicates that the Commission is to be independent of other parts of state government.