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Bob Ferguson

AGLO 1973 No. 87 -
Attorney General Slade Gorton

A board of county commissioners is not divested of its authority to adopt amendments to its justice court districting plan by virtue of its failure to have done so within the time period specified in RCW 3.38.040.
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                                                                  August 2, 1973
Honorable Anton J. Miller
Prosecuting Attorney
Pacific County
P.O. Box 563
Raymond, Washington 98577
                                                                                                               Cite as:  AGLO 1973 No. 87
Dear Sir:
            By recent letter you have asked whether, in view of the time schedule set forth in RCW 3.38.040, the board of Pacific county commissioners may at the present time adopt amendments to the justice court districting plan for that county.
            We answer this question in the affirmative.
            RCW 3.38.040, a part of the 1961 justice court act relating to the adoption of amendments to a county justice court districting plan, makes reference to the justice court districting committee as established by RCW 3.38.010 in each county to which the act applies, and provides as follows:
            "The districting committee may meet for the purpose of amending the districting plan at any time on call of the county commissioners, the chairman of the committee or a majority of its members.  Amendments to the plan shall be submitted to the county commissioners not later than March 15th of each year for adoption by the commissioners following the same procedure as with the original districting plan.  Amendments shall be adopted not later that May 1st following submission by the districting committee.  Any such amendment which would reduce the salary or shorten the term of any judge shall not be effective until the next regular election for justice of the peace.  All other amendments may be effective on a date set by the county commissioners."  (Emphasis supplied.)
             [[Orig. Op. Page 2]]
            The essence of your question is whether, in view of the fact that no amendments to the Pacific county justice court districting plan were submitted to the county commissioners on or before March 15th of the current calendar year (with the concomitant result that no amendments were adopted by the board of county commissioners on or before May 1 of this year), the districting committee may now be called into session by the county commissioners for the purpose of preparing amendments to be adopted by the county commissioners later during 1973.
            Clearly, the districting committee may be called into session "at any time" by the county commissioners.  And, although it is called upon by the statute to submit any proposed amendments "not later than March 15th of each year," there is nothing in RCW 3.38.040 which would preclude the committee from submitting its proposed amendments to the county commissioners earlier than that deadline.  By the same token, although any amendments submitted to the county commissioners are to be adopted "not later than May 1st following submission," there is, likewise, nothing in this statute which would prevent a board of county commissioners from adopting amendments proposed by its justice court districting committee at some earlier date following their submission to the commissioners ‑ subject, of course, to the proviso set forth in the next to last sentence of the statute that ". . .  Any such amendment which would reduce the salary or shorten the term of any judge shall not be effective until the next regular election for justices of the peace . . ."  Accordingly, even if these two deadlines are deemed to be mandatory and not merely directory they pose no barrier against (1) a meeting of the districting committee at the present time; (2) the preparation and submission of districting amendments to the county commissioners at the conclusion of this meeting; or (3) the adoption of those amendments by the county commissioners upon their receipt from the districting committee.
            Over and above this reasoning, however, it may alternatively be suggested that in any event, RCW 3.38.040, supra, is in fact directory rather than mandatory insofar as its timetable portion is concerned.  Accord, State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948), wherein the court expressed itself at some length on this general issue as follows:
             [[Orig. Op. Page 3]]
            "Affirmative statutory provisions relating to the time or the manner of performing officials acts, unlimited or unqualified by negative words, are generally considered directory rather than mandatory.
            "In DeMaris v. Barker, 33 Wash. 200, 74 Pac. 362, this court held that the failure of a judge to decide a case within ninety days from its submission, as required by our state constitution, Art. IV, § 20, did not render the judgment void for want of jurisdiction.  We followed the holding of that case in Bickford v. Eschbach, 167 Wash. 357, 9 P.2d 376.  We stated that nothing in the constitutional provision requiring a decision within ninety days forbids a decision at any other time or lessens the jurisdiction of the judge of the superior court.  The holding in the two cases just mentioned was approved in In re Cress, 13 Wn.2d 7, 123 P.2d 767.
            "In 3 Sutherland, Statutory Construction (3d ed. Horack), 102, § 5816, it is stated:
            "'A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.'
            "The question presented here is strikingly like that raised in Shekelton v. Toole County, 97 Mont. 213, 33 P.2d 531, a case in which the board of county commissioners failed to adopt a resolution providing for the issuance of bonds within the statutory time.  The statute there applicable required such action within thirty days after the election.  In the disposition of that case, the following rule from 59 C.J. 1074, § 631, was approved, which, we conclude, is equally applicable here:
             [[Orig. Op. Page 4]]
            "'"Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form.  Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results."'
            "Accord:  Wood v. Chapin, 13 N.Y. 509, 67 Am.Dec. 62; Rawson v. Parsons, 6 Mich. 400; Smith v. Swain, 71 N.H. 277, 52 Atl. 857; James v. West, 67 Ohio St. 28, 65 N.E. 156; Perkins v. Roberts County, 27 S.D. 281, 130 N.W. 443, Ann.Cas. 1913D, 601, 34 L.R.A. (N.S.) 581; and Fuqua v. State, 175 Tenn. 11, 130 S.W.2d 125.
            "These cases indicate that statutes fixing the time for official action are but directory and do not forbid action after the expiration of the period mentioned in the statute."
            For either or both of these sets of reasons we therefore conclude that neither the jurisdiction of a county districting committee to meet on call of the county commissioners in order to prepare amendments to the county justice court districting plan, nor that of the county commissioners to adopt such amendments, is to be deemed to have been exhausted for a given calendar year by their mere failure to have been exercised by March 15 and May 1, respectively.  Accordingly, it is our opinion that any such amendments to the current Pacific county districting plan as might be prepared by the districting committee and adopted by the county commissioners at the present time in  [[Orig. Op. Page 5]] accordance with the over-all standards for justice court districts set forth in RCW 3.38.050 would be legally defensible.  We would again caution, however, that a delayed effective date appears to be mandated by RCW 3.38.010, supra, in the case of any amendment to a districting plan which would either reduce the salary or shorten the term of any incumbent judge continuing to serve by virtue of election or appointment under the prior plan.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Philip H. Austin
Deputy Attorney General