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Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 90 -
Attorney General Slade Gorton


The offices of county treasurer and district court judge are incompatible public offices.

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                                                                 August 30, 1973
Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 90
Dear Sir:
            This is written in response to your recent letter requesting our opinion on the following question:
            "Are the positions of chief deputy county treasurer and district court judge incompatible positions?"
            We answer this question in the affirmative for the reasons set forth in our analysis.
            By your use of the term "district court judge," we understand you to have reference to a judge of a court of limited jurisdiction operating under the provisions of the 1961 justice court act ‑ chapter 299, Laws of 1961 ‑ as amended.  Under RCW 3.30.020, the applicability of this act to the various counties in this state is spelled out as follows:
            "The provisions of chapters 3.30 through 3.74 shall apply to class AA and class A counties:  Provided, That any city having a population of more than five hundred thousand may by resolution of its legislative body elect to continue to operate a municipal court pursuant to the provisions of chapter 35.20, as if chapters 3.30 through 3.74 had never been enacted:  Provided further, That if a city elects to continue its municipal court pursuant to this section, the number of justices of the peace allocated to the county in RCW 3.34.010 shall be reduced by two and the number of full time justices of the peace allocated by RCW 3.34.020 to the district in which the city is situated shall also be reduced by two.  The provisions of chapters 3.30 through 3.74 may be made applicable to any county of the first, second, third, fourth, fifth, sixth, seventh, eighth, or ninth class upon a majority vote of its board of county commissioners."
             [[Orig. Op. Page 2]]
            Under this act some district court judges serve on a full time basis while others serve only part time.  With respect to the former, RCW 3.39.040 states that:
            "Justices of the peace serving districts having a population of forty thousand or more persons, and justices receiving a salary greater than nine thousand dollars for serving as a justice, shall be deemed full time justices and shall devote all of their time to the office and shall not engage in the practice of law.  . . ."
            In addition, also with respect to full-time district court judges only, another section of the justice court act which has been codified as RCW 3.74.020 provides that:
            "The full time judges of the justice court shall be ineligible to any other office, or public employment than a judicial office or employment during the term for which they shall have been elected."
            On the other hand, in the case of part-time district court judges RCW 3.34.040, supra, goes on to state that:
            ". . .  Other justices shall devote sufficient time to the office to properly fulfill the duties thereof and may engage in other occupations but such justice shall not use the office or supplies furnished by the judicial district for his private business but shall maintain a separate office for his private business nor shall he use the services of any clerk or secretary paid for by the county for his private business."
            From the foregoing provisions it will readily be seen that if your question pertained to a full-time district court judge, our answer would be that he could not simultaneously serve as chief deputy treasurer of his county because of the express prohibition contained in RCW 3.74.020, supra ‑ it being apparent that the position of chief deputy county treasurer does not consititute  [[Orig. Op. Page 3]] ". . . a judicial office or employment . . ."  However, assuming that your question relates, instead, to a part-time district court judge1/ the only statutory requirement is that he not allow his other employment, if any, to interfere with his ability to devote a sufficient amount of time to his office ". . . to properly fulfill the duties thereof."  RCW 3.74.040, supra.
            If he cannot do so and, at the same time, properly fulfill the requirements of his other occupation then, without much question, a part-time district court judge will be required to give up one or the other of the two positions.  This, however, is simply because of a statutory requirement and not because of any violation of the doctrine of incompatible offices since, as indicated in AGO 59-60 No. 157 [[to Roger L. Olson, Prosecuting Attorney, Franklin County on November 10, 1960]], copy enclosed,
            "'"Incompatibility is not simply a physical impossibility to discharge the duties of both offices at the same time, it is an inconsistency in the functions of the two offices, as where one is subordinate to the other, or where a contrariety and antagonism would result in the attempt by one person to discharge faithfully and impartially the duties of both.  . . ."'"2/
             As you know from this and other prior opinions on the subject, the concept of imcompatible public offices is, essentially, a common-law doctrine to be applied in the absence of specific statutory provisions governing the positions in question.  Accord, Kennett v. Levine, 50 Wn.2d 212, 310 P.2d 244 (1957).  The question to be considered in the remainder of this opinion is thus that of whether this doctrine applies to the offices of district court judge and chief deputy county treasurer of the  [[Orig. Op. Page 4]] county in which the district court is located ‑ even in the case of a part-time judge whose other position in no way interferes, physically, with his ability to fulfill all of the duties of his judgeship.  In our opinion it does.
            One of the basic tests of incompatibility is whether or not the result of the particular dual office holding situation would be ". . . a contrariety and antagonism . . . in the attempt by one person to discharge faithfully and impartially the duties of both [offices] . . ."  AGO 59-60 No. 157, supra.  In this case we find such a basic antagonism between the offices of distict court judge and county treasurer (or deputy treasurer)3/ with respect to the handling of and accounting for justice court funds under RCW 3.62.020, which provides as follows:
            "All fees, fines, forfeitures and penalties assessed by district courts, except fines, forfeitures and penalties assessed and collected because of the violation of city ordinances, shall be collected and remitted by the clerk of the district court to the county treasurer at least monthly, together with a financial statement as required by the division of municipal corporations, noting the information necessary for crediting of such funds as required by law.  The county treasurer shall place these moneys into the justice court suspense fund."
            The clerk of the district court who handles these moneys is appointed by the judge whose court he serves ‑ by custom and implied authority.  See in this regard the veto message of the then governor explaining his veto of what would have been § 97, chapter 299, Laws of 1961, as follows:
            ". . .  Believing as I do that the judiciary is a separate and independent branch of the government, it is my fervent conviction that neither a city nor a board of county commissioners, through the appointment of  [[Orig. Op. Page 5]] clerks and the office staff of a Justice of the Peace, should interfere with the independent discharge of duties of a Justice of the Peace."4/
             In addition to thus being appointed by the district court judge he serves, the duties to be performed by the clerk are prescribed by the court under RCW 3.54.020, which provides that:
            "The district courts shall prescribe the duties of the clerk and deputy clerks.  Such duties shall include all of the requirements of RCW 3.62.020 as now or hereafter amended and the receipt of bail and additionally the power to:
            "(1) Accept and enter pleas;
            "(2) Receive bail as set by the court;
            "(3) Set cases for trial;
            "(4) Administer oaths."
            As a consequence of this relationship between a district court judge and his clerk, our supreme court held in King County v. United Pac. Ins. Co., 72 Wn.2d 604, 434 P.2d 554 (1967), that such judges were totally accountable for all funds of the justice court, under a rule of strict liability.  Thereafter the legislature, by its enactment of chapter 73, Laws of 1971, modified this ruling by expressly imposing certain accounting duties directly upon the clerk.  However, the underlying appointive and supervisory duties of the judge were not changed, and certain funds were left under his continuing direct control.  Consequently, the judge still retains a certain amount of accountability with respect to all funds of his court and total accountability for some of its funds.  Accord, our prior opinion to the administrator for the courts, dated June 21, 1971 [[ to Albert C. Bise, Administrator for the Courts, an Informal Opinion AIR-71583]], a copy of which is attached.
             [[Orig. Op. Page 6]]
            And, manifestly, the county treasurer (and his deputies under RCW 36.16.070, supra) has the corresponding independent duty to receive and account for these same funds.  See, RCW 3.62.020, supra; also, RCW 3.62.050 ‑ 3.62.055 and RCW 36.29.010.  Thus, to place the accounting duty of the justice court in the hands of the county treasurer would destroy one of the existing instruments of accountability established by the legislature.  For such a reason, we have previously advised that the positions of auditor and manager of a public utility district are incompatible.  See our opinion of January 22, 1971 [[to George F. Hanigan, an Informal Opinion AIR-71509]], to the prosecuting attorney of Wahkiakum county (copy enclosed).  Consistent therewith, we now likewise must conclude that the positions of district court judge and chief deputy county treasurer are also incompatible public offices, and thus we answer your question, as above stated, in the affirmative.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General

Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/We make this assumption on the basis of the final paragraph of your letter whereby you have told us that:
            "The situation at hand is one wherein the judge holds evening court sessions, however, a considerable part of the routine workaday is consumed with respect to his court work both by personal calls and telephone calls.  The chief deputy treasurer position is established and budgeted as a full-time position."
2/See, also, 3 McQuillin, Municipal Corporations (3rd ed.), § 12.67.
3/See, RCW 36.16.070 which states that a deputy to an elected county officer ". . . may perform any act which his principal is authorized to perform."
4/Section 97, if not thus vetoed, would have authorized the county commissioners of each county to ". . . appoint a clerk and such deputy clerks as are necessary for the administration of the [justice] court."