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AGLO 1970 No. 54 -
Attorney General Slade Gorton

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                                                                    April 1, 1970
Honorable Albert C. Bise
Administrator for the Courts
Temple of Justice
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 54
Dear Sir:
            This is written in response to your recent request for our opinion on a question pertaining to the payment of compensation to certain persons while serving as superior court judges pro tempore.  We paraphrase your question as follows:
            Is a municipal court judge who is not also a justice of the peace entitled to receive compensation as provided for in RCW 2.08.180 for services rendered as a judge pro tempore of a superior court?
            We believe that this question must be answered in the negative for the reasons set forth below.
            Under the provisions of RCW 2.08.180, a superior court case may be tried before a judge pro tempore:
            ". . . who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case; . . ."
            Prior to the enactment of the amendment to this statute which was contained in § 1, chapter 149, Laws of 1967, any person serving in this capacity was to be compensated as follows:
            ". . .  He shall receive a compensation of ten dollars for each day engaged in said trial, to be paid in the same manner as the salary of the superior judge."1/
             However, this provision was deleted by the 1967 amendment and was replaced by a new provision with respect to compensation, which reads as follows:
            "A judge pro tempore who is a practicing attorney and who is not a retired judge of  [[Orig. Op. Page 2]] the supreme court or of a superior court of the state of Washington, or who is not an active judge of an inferior court of the state of Washington, shall receive a compensation of one‑two hundred and fiftieth of the annual salary of a superior court judge for each day engaged in said trial, to be paid in the same manner as the salary of the superior judge.  A judge who is an active judge of an inferior court of the state of Washington shall receive no compensation as judge pro tempore.  A judge who has retired from the supreme court or superior court of the state of Washington shall receive compensation as judge pro tempore in the amount of sixty percent of the amount payable to a judge pro tempore under this section."  (Emphasis supplied.)
            We have underscored the portions of the statute which are pertinent to your inquiry.2/   In many cities, of course, the same individual serves the dual role of municipal police judge and district or precinct justice of the peace.  See, e.g., RCW 35.24.450 with respect to certain third class cities; and chapter 3.46 RCW with respect to cities which have established a municipal department of a district justice court as authorized by the 1961 justice court act (chapter 299, Laws of 1961).  And obviously, any person so serving in this dual role must be regarded as a "judge who is an active judge of an inferior court of the state of Washington" (i.e., a justice court) within the meaning of the crucial language of the governing statute, supra.
            The question which you have asked is whether this same characterization must also be applied to an individual who is serving solely as a municipal police judge ‑ for example, in a city (second class) which is operating its police court under the provisions of RCW 35.23.290, or in a city which has established a municipal court under the provisions of chapter 3.50 RCW.3/   We believe that the provisions of Article IV,  [[Orig. Op. Page 3]] § 1 of our state Constitution, together with certain interpretative decisions which have been handed down with respect to this section by our supreme court, are determinative of this question.
            Article IV, § 1 contains the opening section of the judicial article to our state Constitution and provides that:
            "The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide."  (Emphasis supplied.)
            In the early case of In re Cloherty, 2 Wash. 137, 27 Pac. 1064 (1891), the court held that under this provision, only the legislature could establish police courts within the various cities and towns in this state ‑ thereby denying the claim of authority by a first-class charter city (Tacoma) to be able to establish a police court by ordinance under its charter.  In so holding, the court reasoned as follows (at p. 139):
            "The State of Washington is a sovereign whose written constitution is her visible charter.  By the constitution all the judicial power (which is a distinct branch of the sovereignty) is vested in the courts therein created, independently of all legislation.  The jurisdiction of these courts is universal, covering the whole domain of judicial power, even to that growing out of the supposed existence of municipal ordinances.  But to the legislature of the state the constitution delegates authority to transfer from one of the constitutional courts to another certain limited portions of the judicial power, and it may also provide new inferior courts, not specifically mentioned in the constitution, to which may be assigned such part of the inferior judicial power as it may deem wise to transfer.  The natural conclusion from this premise would be that a court for the administration of municipal ordinances must have been created by an act of the legislature."

            Seven years later, in the case of In re Barbee, 19 Wash. 306, 53 Pac. 155 (1898), the supreme court specifically characterized a municipal court ‑ this time in the city of  [[Orig. Op. Page 4]] Spokane ‑ as an inferior court of the state within the meaning of the Constitution.  And finally, in State ex rel. Fugita v. Milroy, 71 Wash. 592, 129 Pac. 384 (1913), the court followed upon these previous decisions by holding that a municipal police court has only such judicial powers as have been conferred upon it by the legislature.  See, also, McCall v. Carr, 125 Wash. 629, 216 Pac. 871 (1923).4/
             Under these decisions, it appears clear to us that the supreme court has determined that all municipal police courts ‑ whether presided over by a justice of the peace or not ‑ are (in effect) creatures of the legislature acting in the exercise of its function under Article IV, § 1, supra.  From this it necessarily follows, in our opinion, that any municipal courts so created must be regarded as "inferior courts of the state of Washington" ‑ essentially to the same extent as are district or precinct justice courts.  Accordingly, we conclude that an active judge of such a municipal court is ineligible to receive compensation for services rendered as a judge pro tempore of a superior court ‑ in the same manner and to the same extent as is a district or precinct justice of the peace.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Philip H. Austin
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/See, § 11, p. 343, Laws of 1890
2/Notably, these provisions were added to the original text of Senate Bill 200, which became chapter 149, Laws of 1967, upon recommendation of the senate judiciary committee.  See, Senate Journal (1967), page 305.  However, the Journal reveals no explanation as to the scope and purpose of these committee changes in the text of the original bill.
3/Also, a part of the 1961 justice court act, supra.
4/Subsequently, in State ex rel. Dysart v. Cameron, 140 Wash. 101, 248 Pac. 408 (1926), the supreme court slightly qualified these holdings by ruling that a police court has the inherent power and jurisdiction to punish for contempt of court committed in the presence of the court.