Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1972 No. 22 -
Attorney General Slade Gorton


Attorneys who are constitutionally required to be appointed to represent indigent defendants in misdemeanor cases before a district justice court are to be compensated for their services under RCW 10.01.110; however, the costs of such compensation must be drawn from the county current expense fund of the county in which the court is situated and not from justice court revenues under RCW 3.62.050.

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                                                              September 18, 1972

Honorable John C. Merkel
Prosecuting Attorney
Kitsap County
614 Division Street
Port Orchard, Washington 98366

                                                                                                                 Cite as:  AGO 1972 No. 22

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on the following question:

            "'When a district court judge decides to appoint counsel to represent a misdemeanant indigent in a criminal case, is the cost of the court-appointed counsel part of the total expenditures of the justice court within the meaning of RCW 3.62.050?'"

            We believe that this question, as stated, must be answered in the negative for the reasons set forth in our analysis.


            In an opinion dated December 24, 1969, to then State Representative Richard U. Chapin, copy enclosed, we considered essentially the same question as you have now posed.  After reviewing a number of pertinent court decisions from  [[Orig. Op. Page 2]] this and other jurisdictions we reached the following analytical conclusion:

            "It therefore appears that before an attorney who has been appointed to represent an indigent person charged with a crime can be paid from public funds, the legislature must have made two decisions:

            "1.  That the attorney should be paid, and

            "2. Which agency of government should pay him."1/

             We then turned to RCW 3.62.050, the statute which you have cited and which provides as follows:

            "Quarterly, the county treasurer shall determine the total expenditures of the justice courts, including the cost of providing courtroom and office space and including the cost of probation and parole services and any personnel employment therefor.  The treasurer shall then transfer an amount, equal to the total expenditures, from the justice court suspense fund to the current expense fund.  The treasurer shall then, using the percentages established as in RCW 3.62.015 provided remit the appropriate amounts of the remaining balance in the justice court suspense fund to the state general fund and to the appropriate city treasurer(s).  The final remaining balance of the justice court suspense fund shall then be remitted as specified by the county commissioners."

             [[Orig. Op. Page 3]]

            We concluded that this statute, a part of the 1961 justice court act,2/ did not constitute either (a) an authorization to pay attorneys to represent indigents charged with crimes in justice courts or (b) a basis for charging such costs, if paid, against justice court operating revenues.  In connection with the second of these two points we stated that:

            "Not all county expenses having to do with criminal prosecutions are considered to be justice court expenses, where the legislature has not specified the source of funding.  See AGO 1968 No. 17 (parole and probation services are a county expense, not a district justice court expense); cf.Williamson v. Snohomish County, 64 Wash. 233, 116 Pac. 675 (1911) (county commissioners as managers of county affairs have power to employ alienist to assist the prosecuting attorney in a criminal case involving the defense of insanity, because prosecuting persons is county business, not court business).

            "Washington law has historically made a distinction between justice court expenses and general county expenses, even though the legislature has usually required the county to pay justice court expenses.  This is because justices of the peace are not considered to be county officers, but judicial officers of the state.  Washington Constitution, Article IV, § 1; In re Bartz, 47 Wn.2d 161 at 166-67, 287 P.2d 119 (1955); State ex rel. Fair v. Hamilton, 92 Wash. 347 at 352-53, 159 Pac. 379 (1916).  Thus, the legislature, not the county commissioners, determines what expenses justice courts shall incur, see McElwain v. Abraham,supra, while the county commissioners often determine whether expenses should be incurred for county functions, seeWilliamson v. Snohomish County, supra.  Of course, the  [[Orig. Op. Page 4]] legislature can charge the expense of a governmental operation to whichever public agency it pleases.  SeePresby v. Klickitat County, quoted above at pages 331-33."

            In the course of this 1969 opinion we also noted the following provisions of RCW 10.01.110:

            "Whenever a defendant shall be arraigned or first appear before a court, magistrate or justice of the peace upon the charge that he has committed any felony, and the defendant has requested the court to appoint counsel to assist in his defense, and shall by his own oath or such other proof as may be required satisfy the court that he is unable, by reason of poverty, to procure counsel, the court shall appoint counsel, not exceeding two, for such defendant.  Counsel so appointed shall be paid a reasonable amount as attorney's fees together with reimbursement of actual expenses necessarily incurred upon the court's order by the county in which such proceeding is had:  Provided, That this section shall also apply to such other proceedings and at such other time as may be constitutionally required."  (Emphasis supplied.)

            However, because we were not there dealing with a felony situation and because the appointment of counsel to represent indigents in misdemeanor cases before justice courts was not then deemed to be constitutionally required (see,Hendrix v. Seattle, 76 Wn.2d 142, 456 P.2d 696 (1969)), we viewed this statute as being inapplicable to the question as then presented to us.  To this latter extent, of course, the situation today is dramatically different for, on June 12 of this year, the United States Supreme Court held that the appointment of counsel to represent an indigent defendant is "constitutionally required" in any criminal prosecution, whether for a felony or a misdemeanor, in which a conviction may result in a deprivation of the defendant's liberty by means of incarceration.  See,Argersinger v. Hamlin, 32 L.Ed.2d 530, 92 S.Ct.     (1972).

             [[Orig. Op. Page 5]]   By virtue of this decision it must now be concluded that the appointment and compensation of attorneys to represent indigents in criminal prosecutions before justice courts is statutorily authorized by RCW 10.01.110,supra, in those cases to which the Argersinger decision applies.  However, this proposition still does not warrant an alteration of the ultimate conclusion stated in our earlier, 1969, opinion; i.e., that any compensation so paid must come from the county current expense fund rather than from justice court income under RCW 3.62.050, supra.  See, also, AGO 1968 No. 17 [[to Prosecuting Attorney, Snohomish County on May 2, 1968]], copy enclosed, dealing with the analogous matter of county probation service expenses and applying the oft-cited and well-established rule:

            ". . . that the ordinary expenses and lawful obligations of county government are payable from the current expense fund (originally called the general fund)unless some other legislative provision has been made.  State ex rel. Adams v. Irwin, 74 Wash. 589, 134 Pac. 484, 135 Pac. 472 (1913); AGO 63-64 No. 76 [[to C. W. "Red" Beck, State Representative on December 19, 1963]]; 15 McQuillin, Municipal Corporations, 3rd ed., § 39.45. . . ."

            We note that following the issuance of this 1968 opinion the legislature expressly amended RCW 3.62.050, supra, so as to include these probation service expenses and obligations to be paid from justice court income3/ - and most certainly, a similar amendment could appropriately be enacted to take care of the present problem of fees paid to counsel appointed to represent indigent defendants in misdemeanor cases before justice courts. However, until this is done we must conclude that while counsel who are now constitutionally required to be appointed in such cases may be compensated for their services under RCW 10.01.110, supra, this compensation must be drawn from the county current expense fund and not from justice court revenues.

            [[Orig. Op. Page 6]]   We trust the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Accord, Honore v. State Bd. of Prison Terms, 77 Wn.2d 660, 466 P.2d 485 (1970), involving the appointment and compensation of counsel to represent indigent persons in habeas corpus proceedings.

2/Chapter 299, Laws of 1961.

3/See, § 1, chapter 111, Laws of 1969.