Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 88 -
Attorney General Slade Gorton

Superior court commissioners have the authority under Article IV, § 23 of the Washington state Constitution to (1) direct the issuance of a warrant when an information is filed in a criminal proceeding and (2) set bail; they may not, however, hold an arraignment.
                                                              - - - - - - - - - - - - -
                                                                 August 30, 1973
Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98832
                                                                                                               Cite as:  AGLO 1973 No. 88
Dear Sir:
            This is written in response to your recent letter requesting an opinion of this office on a question which we paraphrase as follows:
            Do superior court commissioners in this state have the authority to (1) direct the issuance of a warrant when an information is filed in a criminal proceeding; (2) set bail; or (3) hold an arraignment?
            We answer the first two parts of this question in the affirmative and the third in the negative for the reasons set forth in our analysis.
            The primary source of authority for court commissioners of the superior courts is Article IV, § 23 of our state Constitution which provides as follows:
            "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law."
            In addition, see RCW 2.24.040 which also pertains to superior court commissioners and implements the last clause of this section of the Constitution by providing that:
             [[Orig. Op. Page 2]]
            "Such court commissioner shall have power, authority and jurisdiction, concurrent with the superior court and the judge thereof, in the following particulars:
            "(1) To hear and determine all matters in probate, to make and issue all proper orders therein, and to issue citations in all cases where same are authorized by the probate statutes of this state.
            "(2) To grant and enter defaults and enter judgment thereon.
            "(3) To issue temporary restraining orders and temporary injuctions, and to fix and approve bonds thereon.
            "(4) To act as referree in all matters and actions referred to him by the superior court as such, with all the powers now conferred upon referees by law.
            "(5) To hear and determine all proceedings supplemental to execution, with all the powers conferred upon the judge of the superior court in such matters.
            "(6) To hear and determine all petitions for the adoption of children, for the dissolution of incorporations, and to change the name of any person.
            "(7) To hear and determine all applications for the commitment of any person to the hospital for the insane, with all the powers of the superior court in such matters:  Provided, That in cases where a jury is demanded, same shall be referred to the superior court for trial.
            "(8) To hear and determine all complaints for the commitments of minors with all powers conferred upon the superior court in such matters.
            "(9) To grant adjournments, administer oaths, preserve order, compel attendance of witnesses, and to punish for contempts in the refusal to obey or the neglect of his lawful orders made in any matter before him as fully as the judge of the superior court.
             [[Orig. Op. Page 3]]
            "(10) To take acknowledgments and proofs of deeds, mortgages and all other instruments requiring acknowledgment under the laws of this state, and to take affidavits and depositions in all cases.
            "(11) To provide an official seal, upon which shall be engraved the words 'Court Commissioner,' and the name of the couty for which he may be appointed, and to authenticate his official acts therewith in all cases where same is necessary.
            "(12) To charge and collect, for his own use, the same fees for the official performance of official acts mentioned in subdivisions (4) and (10) herein as are provided by law for referees and notaries public."
            An examination of this statute, however, readily reveals that it does not contain any reference to the handling of the several criminal matters about which you have inquired.  Therefore, it follows that if jurisdiction to handle these matters exists for superior court commissioners, such jurisdiction must be derived from the earlier language of Article IV, § 23, supra, which gives those commissioners the power to perform ". . . like duties as a judge of the superior court at chambers, . . ."
            In State ex rel. Lockhart v. Claypool, 132 Wash. 374, 232 Pac. 351 (1925), the court construed this provision to mean that a court commissioner has the same powers under the Constitution as a judge at chambers had at the time of its adoption in 1889.  As then described by the court, those powers were then exclusively defined in § 2138 of the Territorial Code of 1881, page 368, which provided as follows:
            "The several judges of the district courts in this territory, and each of them in their respective districts, may, at chambers, in vacation, entertain, try, hear and determine, all action, causes, motions, demurrers and other matters not requiring a trial by jury; and all rulings, orders, judgments and decrees, made or rendered by a judge of the district court at chambers, may be entered of record in vacation, and shall have like force and effect as though made or rendered at a regular term of the district court."
            Based upon this statutory language it is our opinion, in accordance with the decision in the Claypool case, supra, that the powers of a superior court commissioner as derived from the Constitution emcompass all general ex parte matters,  [[Orig. Op. Page 4]] including the issuance of warrants, and even bail settings, which obviously themselves do not require a trial by jury.  It is for this reason that we find ourselves able to answer parts (1) and (2) of your question, as above paraphrased, in the affirmative.
            As for arraignments, however, we must be guided by the ruling of our supreme court in State v. Philip, 44 Wash. 615, 87 Pac. 955 (1906).  In that case the court determined that a superior court commissioner had no power to arraign a prisoner charged with a felony.  The reason for that decision, as later explained in State ex rel. Lockhart v. Claypool, supra, was a then existing statutory requirement that ". . . the plea of guilty could only be put in by the defendant 'himself in open court.'"
            Likewise, the currently effective criminal rules for superior courts (CrR), as recently promulgated by the state supreme court,1/ provide in Rule 4.1 (A) that:

            "Promptly after the indictment or information has been filed, the defendant shall be arraigned thereon in open court."  (Emphasis supplied.)
            Accordingly, consistent with the analysis of the court in both of the above cited cases, we must conclude that a superior court commissioner has no jurisdiction to preside over an arraignment under this rule.
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, 82 Wn.2d at p. 1129.