Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1995 No. 4 - Mar 31 1995
Attorney General Christine Gregoire


1.         RCW 3.50.055, enacted in 1993 but effective January 1, 1995, requires certain municipal court judgeships to be filled by election as vacancies occur after January 1, 1995:  that is, any new positions created or vacancies occurring in existing positions (if they are covered by RCW 3.50.055) must be filled by election for the remainder of the current term, while duly appointed judges serving terms scheduled to end on January 1, 1998 may complete their current terms, but their successors will be chosen by election.

2.         RCW 3.50.055 was not intended to change the term for which municipal court judges serve; pursuant to RCW 3.50.040 and 3.50.050, all municipal court judges serve four-year terms beginning on January 1, 1986, and every four years thereafter.

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                                                                  March 31, 1995

The HonorableBetti L. Sheldon
State Senator
405 John A. Cherberg Building, MS: 40423 
Olympia, WA  98504-0423                                        

                                                                                                            Cite as:  AGO 1995 No. 4

Dear Senator Sheldon:

            By letter previously acknowledged, you have requested our opinion on two questions we have paraphrased as follows:

            1.         Does RCW 3.50.055 require all cities subject to its provisions to hold elections for municipal court judgeships in 1995, including for positions currently filled by appointed judges serving terms not scheduled to expire until January 1, 1998?

            2.         If a city is required to conduct elections in 1995 to fill municipal court judgeships, for what term will the new judges be elected?

                                                               BRIEF ANSWER

            RCW 3.50.055 requires certain municipal court judgeships to be elective, but does not operate to oust duly appointed incumbent judges from office.  Any judgeship meeting the terms described in RCW 3.50.055 which becomes vacant for any reason after the effective date of the statute (January 1, 1995) must be filled by election.  If a judge appointed for a four-year term beginning January 1, 1994 completes his or her term, the next election for that position will occur in 1997 for a term to begin January 1, 1998.  Any elections conducted before 1997 to fill vacancies occurring in municipal judgeships will be for a partial term ending January 1, 1998.


            RCW 3.50.055 is a 1993 statute requiring certain municipal court judgeships to be filled by election and not by appointment.[1]  The 1993 amendment provides as follows:

                        Notwithstanding RCW 3.50.040 and 3.50.050, judicial positions may be filled only by election under the following circumstances:

                        (1)        Each full-time equivalent judicial position shall be filled by election.  This requirement applies regardless of how many judges are employed to fill the position.  For purposes of this section, a full-time equivalent position is thirty-five or more hours per week of compensated time.

                        (2)        In any city with one or more full-time equivalent judicial positions, an additional judicial position or positions that is or are in combination more than one-half of a full-time equivalent position shall also be filled by election.

            By virtue of chapter 317, section 12, Laws of 1993, 1993, RCW 3.50.055 went into effect on January 1, 1995.

            Prior to the enactment of RCW 3.50.055, cities and towns had the option of making their municipal judges elective or appointive.  RCW 3.50.040 provides that appointed municipal judges will be chosen by the mayor for four-year terms commencing on January 1, 1986 and every four years thereafter.  RCW 3.50.050 authorizes the legislative authority of any city or town to make the municipal judges in that jurisdiction elective and provides, again, that all municipal judges will serve for four-year terms commencing on January 1, 1986, and every four years thereafter.

            The effect of RCW 3.50.055, then, is to eliminate the option cities have to make many of their municipal judgeships appointive, for any full-time equivalent judicial position or (in any city with one or more full-time equivalent judicial positions) for any additional judicial position or positions that constitute more than half of a full-time equivalent position.  Since many cities in Washington have municipal judgeships currently filled by appointed judges, the question then arises:  in what manner, and with what timing, shall cities make the transition from appointed to elected judges?  RCW 3.50.055 does not explicitly answer this question, either by stating when the first election will be conducted in cities subject to its requirements, or by specifically stating whether it intended to shorten the terms of municipal judges appointed before the act went into effect.  The new statute merely states that certain "judicial positions may be filled only by election . . ." as of January 1, 1995.

            In analyzing the effect of the amendment, four possible interpretations have been suggested:

            1.         Cities should have conducted elections in 1993 for the municipal court judge term scheduled to begin January 1, 1994;

            2.         Cities should have conducted elections in 1994 to fill municipal court judgeships anticipated to become "elective" on January 1, 1995, presumably filling the one-year gap before the effective date of the new statute with a short-term appointment;

            3.         Cities should conduct an election in 1995 to fill all judgeships meeting the requirements of RCW 3.50.055 (with a further question to be answered whether such elections would be for a full four-year term or only for a two-year term scheduled to end on January 1, 1998);

            4.         After January 1, 1995, any vacancies occurring in municipal court judgeships subject to RCW 3.50.055 must be filled by election, as such vacancies arise.

            As noted in our brief answer above, we believe that the fourth option is the correct construction, consistent with case law and rules of statutory construction.

            Because the legal issues are the same in both cases, we will combine the first two analytical possibilities above and discuss them together.  Under either of these theories, RCW 3.50.055 should be read as requiring cities toanticipate the effective date of the new statute by conducting elections for any judgeships covered by it, either in 1993 (their only opportunity to anticipate the new amendment in time to conduct an election for a full four-year term) or in 1994 (which would have required one-year appointments effective in January of 1994 followed by an election at the end of the same year).

            We reject these two possibilities because they are inconsistent with a clear principle of statutory construction in Washington: that a statute speaks only from its effective date as specified by the legislature.  The leading case enunciating this rule isHallin v. Trent, 94 Wn.2d 671, 619 P.2d 357 (1980), in which the legislature created a number of new superior court judgeships effective January 1, 1981.  (A provision of the same legislation which would have required the new judgeships to be filled by an election in 1980 was vetoed by the governor.)  The Washington Supreme Court concluded that election officers were not authorized to anticipate the future effective date of legislation by conducting an election in 1980 for judgeships scheduled to become effective January 1, 1981.  As a result, the new judicial positions became vacant only as of January 1, 1981, and had to be filled temporarily by appointment, with the first election to be held at the end of 1981.  Citing several earlier cases, the court concluded that "statutes may only speak from their effective date . . . ."  Hallin v. Trent, 94 Wn.2d, at 675.  The court further observed, quotingYelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974), that "[i]t is a cardinal rule that a statute passed to take effect at a later date speaks from the time it becomes operative and not from the time of its passage."  Id., 94 Wn.2d 671, at 676 (quoting from Yelle, 83 Wn.2d 464, at 478).[2]

            Under the rule ofHallin v. Trent, which specifically dealt with elections to fill vacancies in judgeships, election officers are not entitled to "anticipate" changes in the law that have not yet occurred and conduct elections to fill positions at a time when the law does not require any election.  Thus, both in November 1993 and in November 1994, RCW 3.50.055, although it had passed the legislature and had been signed by the Governor, was not yet operative.  Although some cities might have volunteered to make their judgeships elective under the options already offered under RCW 3.50.050, they were not under any obligation to do so until after the effective date of the new statute.[3]

            As noted earlier, statutory law requires that all municipal judges serve four-year terms and that those terms begin on January 1, 1986 and every four years thereafter.  Thus, as of the passage of what was to be codified as RCW 3.50.055 by the 1993 Legislature, cities which had not already made their municipal judgeships elective were served by appointed judges whose terms were scheduled to expire on January 1, 1994.  Since, in line with the reasoning noted above, the new statute had still not come into effect on January 1, 1994, cities presumably filled their judgeships by appointments or reappointments for four-year terms running from January 1, 1994 to January 1, 1998.  Indeed, they had no legal basis for doing otherwise.

            The question then becomes whether, by going into effect on January 1, 1995, RCW 3.50.055 automatically truncated the terms of all sitting municipal court judges, creating vacancies in all full-time equivalent positions to be filled by election in 1995.  Again turning to cases and earlier opinions adopting principles of statutory construction, we decline to interpret RCW 3.50.055 as shortening the terms of incumbent appointed office holders.

            We note preliminarily that the legislature does have the power to truncate the terms of existing office holders through changes in statute, at least where not contrary to the constitution.  See, e.g.,Luther v. Ray, 91 Wn.2d 566, 588 P.2d 1188 (1979) (interpreting statute to allow Governor to shorten the terms of appointed members of the Board of Pilotage Commissioners) and AGO 1986 No. 4 (advising that the legislature could constitutionally shorten the terms of incumbent members of the Liquor Control Board).[4]

            However, as we noted earlier, there is no language in RCW 3.50.055 changing the term of any incumbent municipal court judge, or specifying that any judges appointed as of January 1, 1994, would serve less than a full term, or setting dates for the holding of an election for those positions which had become elective because of the requirements of the new law.[5]  Although the legislature has the power to truncate the terms of existing office holders, our courts have adopted a rule that statutes will not be read in this manner unless their intent is clear.

            InState ex rel. Pendleton v. Superior Court, 119 Wash. 73, 204 P. 1053 (1922), the State Supreme Court was called to interpret a statute whose purpose was to make uniform the election times for various local government offices.  In order to make election times and terms of office consistent for a number of categories of officers who were then serving terms beginning at different times in the year, the legislature necessarily had to lengthen or shorten the terms of some incumbent officers.  In order to resolve some ambiguities in the legislative intent, the court adopted a rule that "statutes will not be construed to shorten the terms of incumbent officers unless the intent is plainly and clearly expressed."  119 Wash. at 78.      

            Although thePendleton court cited no specific authority for the rule it followed, the same principle was cited with approval in Luther v. Ray (referred to earlier), a case upholding the authority of the Governor to shorten the terms of members of the Board of Pilotage and appoint new members in their places.  The majority opinion inLuther restated the Pendleton rule as a "general rule of construction which operates only when the legislature's intent is not otherwise discernible."  Luther v. Ray, 91 Wn.2d at 570-71.[6]

            Accordingly, since there is no language in RCW 3.50.055 which would establish legislative intent to vacate the positions of incumbent judges before the ends of their respective terms, we think the statute may be given full effect and yet harmonized with related provisions.  RCW 3.50.055 states that certain "judicial positions may be filled only by election . . . ." after January 1, 1995.  In our opinion, the ordinary meaning of this language is that judicial positions covered by the section will be filled by election and not appointment as they become vacant.  Because the new statute is now in effect, any new judicial positions created which are full time (or meet the requirements of subsection (2) of RCW 3.50.055) must be filled by election.  If any vacancies occur in existing judicial positions (such as by the resignation or removal of a sitting judge), the positions are now elective and an election must be held for the remainder of the term.  However, those judges who were appointed effective January 1, 1994, for a term to end on January 1, 1998, may otherwise complete their terms and an election will first be held as to those positions in 1997, to fill the vacancy created as of January 1, 1998, by the expiration of their current terms.[7]

            This reading gives full force and effect not only to RCW 3.50.055, but to RCW 3.50.040 and .050, statutes which were not changed by the 1993 Legislature and which clearly indicate that the legislature intended all municipal court judges (appointive or elective) to serve concurrent four-year terms.  Legislative enactments which relate to the same subject and are not actually in conflict should be interpreted to give meaning and effect to both.  Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993); Employco Personnel Servs., Inc. v. Seattle, 117 Wn.2d 606, 817 P.2d 1373 (1991).  This reading of the statutes gives full effect to the language of each, avoids unreasonable disruption of current municipal arrangements, and makes it clear that RCW 3.50.055 is now in effect and must be followed as municipal court positions are filled in the future.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                      JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General

    [1]  RCW 3.50.055 was enacted as Laws of 1993, ch. 317, § 4.  Section 2 of the same chapter, codified as RCW 3.46.063, establishes essentially the identical rules for judicial positions in the municipal departments of district courts.  This opinion will not separately cite the parallel provisions of chapter 3.46 RCW, but the reasoning relating to RCW 3.50.055 applies in like measure to RCW 3.46.063.

    [2]       The supreme court had ruled already in Fain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977), that a superior court vacancy does not exist until the operative date of the statute creating a position.

    [3]  We have reviewed correspondence showing that the prime sponsor of SHB 1545, which was eventually enacted as RCW 3.50.055, believed the legislative intent to be that all full-time municipal court judgeships be filled by elected judges as of January 1, 1995.  However, under the case law cited in the text, we believe an intent to require elections before the effective date of the law would have had to be carried out by specific language in the act itself, to be effective.  The legislative history of the bill, including the committee files, reveals no debate or dialogue which would be the basis for concluding that RCW 3.50.055 was intended to require early elections or to shorten the terms of incumbent judges.

    [4]  The legislature did indeed act to change the terms of members of the Liquor Control Board from nine years to six years, and shortened the terms of incumbent members in the process.  See Laws of 1986, ch. 105, § 1.

    [5]  If the legislature had explicitly required that an election be held in 1995 to fill municipal court judgeships, it would, we assume, have specified whether such an election would be for a partial term ending January 1, 1998 (thus keeping all municipal court judgeships on the same cycle of appointment or election), or rather for a full four-year term beginning January 1, 1996, thus placing some elected judgeships on a different election cycle from the rest.  From the legislature's failure to resolve this ambiguity, we cannot avoid concluding that the legislature probably did not anticipate that elections would be conducted in 1995.

    [6]       Justice Wright, dissenting from the result in Luther, would have followed the Pendleton rule and would have required more explicit legislative action before finding that the legislature had shortened the terms of pilotage commissioners.  Dissenting opinion, 91 Wn.2d at 571.  Justice Wright also noted that the rule against reading statutes to shorten the terms of incumbent office holders is consistent with the law in other states, citing State ex rel. Reynolds v. Roan, 213 So.2d 425 (Fla. 1968).

            In AGO 1992 No. 15 we construed a statute concerning termination of a municipal department of a district court to mean that any sitting district court judges affected by the termination would remain in office until the end of their respective terms, unless the county separately acted to reduce the total number of judgeships in the district.

    [7]       Our approach is consistent with the practice applied to legislative texts when districts are redrawn.  A new districting plan does not truncate the terms of sitting members who no longer reside in the districts numbered (by the new plan) the same as the districts from which they were elected.  However, if a vacancy occurs in such a seat, it is filled by election from the new district.  See AGO 1992 No. 12.