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Bob Ferguson

AGLO 1971 No. 83 -
Attorney General Slade Gorton

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                                                                   June 21, 1971
Honorable Albert C. Bise
Administrator for the Courts
Temple of Justice
Olympia, Washington 98501                                                              Cite as:  AGLO 1971 No. 83 (not official)
                     Re:  Chapter 73, Laws of 1971
Dear Sir:
            By letter previously acknowledged you have requested the opinion of this office concerning the responsibility of justice court judges to account for certain funds collected by their courts under the 1961 justice court act, as amended by chapter 73, Laws of 1971.  Specifically, your question is:  To what extent has that responsibility, as defined by our supreme court in King Cy. v. United Pac. Ins. Co., 72 Wn.2d 604, 434 P.2d 554 (1967), been modified by this 1971 amendatory act.
            By way of background, the basic principle with which we are dealing holds that public officers who are entrusted with the custody or care of public funds are absolutely liable ‑ as insurers ‑ for the loss of such funds, whether caused by another person's theft, by acts of a deputy, or otherwise.  The only exceptions to such liability are losses arising through acts of God or acts of a public enemy.  State ex rel. O'Connell v. Engen, 60 Wn.2d 52, 371 P.2d 638 (1962); Shelton v. Clapper, 23 Wn.2d 811, 162 P.2d 445 (1945); Grays Harbor Construction Co. v. Paulk, 179 Wash. 300, 37 P.2d 584 (1934); Fairchild v. Hedges, 14 Wash. 117 (1896).  This rule of strict liability has been applied to hold a public officer liable for the acts of his deputies, including deputies over whom the officer had no control or whom he did not even hire.  See, City of Duluth v. Ross, 140 Minn. 161, 167 N.W. 485 (1918); State ex rel. Bolsinger v. Swing, 54 Ohio App. 251, 6 N.E.2d 999 (1936); Bird v. McGoldrick, 277 N.Y. 492, 14 N.E.2d 805, 116 A.L.R. 1059 (1938); United States v. Bryan, 82 Fed. 290, 61 U.S. App. 259, 90 Fed. 473,  [[Orig. Op. Page 2]] 53 A.L.R. 218, 1 A.L.R. 229 (1897); 1 A.L.R. 222, 228; 116 A.L.R. 1064, 1067.
            This standard of responsibility in some cases has been based upon a common law rule of public policy; in others it has been based upon the theory that the public officer-custodian is a debtor, and in still others upon the provisions of the officer's bond.  Also, in some cases, it has been based upon statutory provisions fixing the responsibility of the particular officer.  See, 43 Am. Jr., 113 Public Officers, § 309.
            In the state of Washington, the basis of this high degree of responsibility on the part of public officers for funds entrusted to their custody has been the common law rule of public policy, applied in conjunction with and sometimes modified by statutory provisions.  See, State ex rel. O'Connell v. Engen, supra; also, King Cy. v. United Pac. Ins. Co., supra.
            The applicability of this principle to justice court judges serving under the 1961 justice court act (chapter 299, Laws of 1961) was the principle issue involved in the case of King Cy. v. United Pac. Ins. Co., supra.  This case involved an action against such a judge, together with certain employees of his court and their respective bondsmen, for the recovery of district court revenues (fines, fees and bail forfeitures, primarily) found missing through an examination by the state auditor.  The judge's asserted defense was that the loss was caused by other court personnel ‑ for which reason he argued that he was not accountable.  The trial court agreed and thus held that the defendant judge could be held accountable only for moneys coming into his hands personally, as distinguished from moneys received by court employees by virtue of their official position.  However, on appeal the supreme court reversed the trial court on that point ‑ in an opinion reading in pertinent part as follows:
            "The district justice court, which we determine is the judge himself, is obligated to make monthly remittances of all funds coming into its possession.  Inasmuch as this is the primary responsibility of the district justice court (the judge therein), the judge becomes accountable for its proper remittance.  The law does not require the use of a justice court clerk, and one is not appointed unless the duties of the judge are such that additional assistance is required.  In such a case the judge may delegate such functions of the court as he in his judgment and discretion deems necessary.
            "RCW 3.30.070 provides:
            "Each justice court shall keep uniform records of each case filed and the proceedings had therein including an accounting for all funds received and disbursed.
             [[Orig. Op. Page 3]]
            "Here again there is nothing which indicates that such services were to be performed by any other employee of the district justice court than by the judge himself.  The employment of other employees was at his own choice and judgment.
            "RCW 3.54.020, supra, provides that the justice court shall prescribe the duties of the clerk and deputy clerks.  In the performance of his duties as such district justice court judge.  It was the respondent himself who prescribed the job qualifications of justice court commissioner, chief clerk and chief deputy.  Each was to perform a portion of the duties which the act provided should be performed by the district justice court (the judge himself).
            "The history of the Justice Court Act legislation disclosed that originally the district justice court was to appoint his clerk and deputy clerks as required.  This was amended so that the county commissioners were to make these appointments.  Senate Journal, 37th Legislature (1961) at 790.  This section was later vetoed by the Governor on the basis that the judiciary was a separate and independent branch of government and such appointments by the county commissioners might well interfere with the independent discharge of duties of the justice of the peace (district justice court judge).  Senate Journal, 37th Legislature (1961) at 1211.  These appointments, therefore, became the prerogative of the district justice court judge.
            "Respondent chose to delegate a part of his duties to such clerks so far as the financial affairs of his court were concerned.  By reason thereof these clerks became his servants and for their official actions he became legally liable and responsible.  Had it been meant to be otherwise, the legislature by apt language could have so provided.  The clerk is not an independent, but a subordinate employee of the court (the judge thereof) which still remained responsible and liable for its actions performed by its employees in its behalf."
            It is true the final paragraphs of the same opinion (see, pp. 612, 613) contain language seeming to indicate that the supreme court's holding was based on administrative negligence on the part of the judge.  However, the opinion is most accurately and widely construed as holding that the defendant district court judge was absolutely accountable for the missing  [[Orig. Op. Page 4]] funds ‑ notwithstanding his allegation that the losses were caused by court employees ‑ because these court employees were in any event appointed by him and were subject to his supervisory control.  With this background in mind, we turn now to the pertinent provisions of chapter 73, Laws of 1971.
            Insofar as the present question is concerned, the principle thrust of this act was to define, expressly, certain duties of the justice court clerk, and at the same time to remove those duties from the absolute control of the justice court judge, thus compelling a modified conclusion regarding the liability of the judge for any loss of court funds.  Under chapter 3.30 RCW as thus amended, the duties of the clerk are now prescribed chiefly by statute, rather than being left entirely to prescription by the judge as before.  Section 3 amends RCW 3.30.070 to provide that the clerk (instead of the judge) shall keep uniform records of each case filed and the proceedings had therein ". . . including an accounting for all funds received and disbursed . . ."  (Emphasis supplied).  Section 5 amends RCW 3.34.090 to provide expressly for the bonding of the clerk of the court at county expense.  Section 7 amends RCW 3.54.020 to read as follows (changes shown as in the amendatory act):
            "The ((justice)) district courts shall prescribe the duties of the clerk and deputy clerks.  Such duties ((may)) 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."
            Section 8 then amends RCW 3.62.020 (referred to in § 7) as follows:
            "All fees, fines, forfeitures and penalties assessed ((and collected)) by ((justice)) district courts, except fines, forfeitures and penalties assessed and collected because of the violation of city ordinances, shall be collected and remitted by the ((justice)) 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."
             [[Orig. Op. Page 5]]
            Knowledge of the previous wording of the justice court act and its recent interpretation by our supreme court in King Cy. v. United Pac. Ins. Co., supra, was presumably in the mind of the legislature in enacting these sections of chapter 73, Laws of 1971.  State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937); Benn v. Grays Harbor County, 102 Wash. 620, 173 Pac. 632 (1918), and its logical purpose must be given effect.  State ex rel. Bell v. Superior Court, 196 Wash. 428, 83 P.2d 246 (1938).  Clearly, therefore, the effect of this amendatory act upon the responsibilities of a district court judge was to remove from the judge the function of being the custodian of the funds of his court.  The rule of absolute liability, which is applicable peculiarly to officers who have the custody of public funds, is thus no longer applicable to that officer insofar as justice court funds under chapter 3.62 RCW are concerned.  The legislature by its action in amending the justice court act in those particulars clearly intended to place that responsibility, instead, upon the clerk of the court as the custodian.
            That is not to say, however, that under no circumstances may a justice court judge now be held liable for the loss of funds which have been paid into his court.  Certainly, he remains liable as before for any losses which may be caused by his own actual fault or wrongful conduct.  Furthermore, insofar as our review of the statutes discloses, the judge still possesses the same appointing authority which he had before the enactment of chapter 73, Laws of 1971.  The only difference in that respect is that he may now have an implied statutory duty to appoint a clerk in order to perform the duties prescribed by §§ 3, 7 and 8, supra.  Furthermore, under § 7 of the amendatory act, the district judge must continue to prescribe the duties of both the clerk and the clerk's deputies, over and above those duties which are prescribed by the statute itself.  In the exercise of this appointing authority and in performance of the judge's other duties, the law most certainly still requires the exercise of ordinary care.
            It is also noteworthy that § 8 of chapter 73, Laws of 1971, supra, expressly exempts from its operation "fines, forfeitures and penalties assessed and collected because of the violation of city ordinances . . . ".  RCW 3.62.020 thus still contemplates the receipt of certain funds by the court which some person other than the clerk might handle.  By a process of elimination, those funds which are not now to be handled and accounted for by the clerk or other employee must remain the responsibility of the judge himself.  As to those funds, the holding of King Cy. v. United Pac. Ins. Co., supra, should still be regarded as applicable.
            In summary, with regard to the ordinary funds of the justice court, the judge himself is no longer the custodian, and thus is no longer responsible as an insurer under chapter 73, Laws of 1971.  However, there still exists a degree of  [[Orig. Op. Page 6]] responsibility on the part of the judge for his own conduct and for his own negligence, including negligence in the selection of employees or in their supervision.  There also remains a certain potential liability on the part of the judge with regard to any funds which he may receive other than those which it is now the duty of the clerk to receive and transmit under chapter 73, Laws of 1971.
            We trust the foregoing will be of assistance to you.
Very truly yours,
Robert F. Hauth
Assistant Attorney General