AGO 1975 No. 3 - Feb 10 1975
OFFICES AND OFFICERS ‑- COUNTY ‑- JUDGES ‑- COURTS ‑- SALARY ‑- AUTHORITY OF SUPERIOR COURT JUDGES
(1) Where the salary of a superior court aide is fixed by statute, or by the county commissioners or other legislative authority pursuant thereto, a judge of the court is without power to set a higher salary by a directive or order in a nonjudicial proceeding; the court may, however, entertain an action for a writ of mandamus to require the salary fixing authority to raise the salaries of its personnel, but it will only be justified in granting the writ if, applying recognized judicial standards, it finds that the legislative authority involved has acted arbitrarily or capriciously.
(2) Under RCW 2.28.139 it is the obligation of each county (acting through its county commissioners) to furnish the courtroom and related necessary facilities for the conduct of the superior court; if the county fails to do so, the court may order the sheriff to provide the requisite facilities at county expense or, if this administrative remedy fails, the court may compel the commissioners to comply with the requirement of the statute by issuance of a writ of mandamus in a judicial proceeding ‑ subject to a right of appeal and all other procedural requisites of a regular court case.
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February 10, 1975
Honorable Joe D. Haussler
State Representative, District 2-A
Olympia, Washington 98504
Cite as: AGO 1975 No. 3
By recent letter you have requested our opinion on the following two questions:
[[Orig. Op. Page 2]]
"(1) Assuming the salaries of court employees meet all federal and state statutory requirements, what rights, if any, does a Superior Court judge have to increase the salaries of court employees?
"(2) What rights, if any, does a Superior Court have to take for the use of the court and the county prosecutor office space which the Board of County Commissioners has not allocated to them?"
We respond to these questions in the manner set forth below.
By your reference to court employees, we understand that you are speaking first of those personnel who are provided for by an express statute or constitutional provision to assist the superior courts of our state in the performance of their judicial functions. These include the superior court clerk and his or her deputies, court commissioners, court reporters, and bailiffs; and we will discuss them in that order.
Article IV, § 26 of the state constitution provides that:
"The county clerk shall be by virtue of his office, clerk of the superior court."
This, in turn, is an elective office under Article XI, § 5 of the constitution. Prior to the adoption of Amendment 57 in 1972, the salary to be paid to this county officer (along with all other county elected officials) was required to be fixed by the state legislature. Now, however, the legislature may delegate this function to the legislative authority of the counties; and it has done so through its enactment of § 2, chapter 88, Laws of 1973, 1st Ex. Sess. Under this act, which amended the preexisting provisions of RCW 36.17.020, the salary of the county clerk [[Orig. Op. Page 3]] is to be either that which was there fixed by the legislature or a different salary established by the county commissioners or other county legislative authority which may be higher or lower ‑ except that it cannot be lower than the clerk was receiving on January 1, 1973. See, AGO 1973 No. 20 [[to Granville Egan, Prosecuting Attorney, Ferry County on September 20, 1973]], copy enclosed.
In the event that deputy clerks are necessary in a given county, their appointment and compensation are also provided for by an existing statute, RCW 36.16.070, which reads as follows:
"In all cases where the duties of any county office are greater than can be performed by the person elected to fill it, the officer may employ deputies and other necessary employees with the consent of the board of county commissioners. The board shall fix their compensation and shall require what deputies shall give bond and the amount of bond required from each. The sureties on deputies' bonds must be approved by the board and the premium therefor is a county expense.
"A deputy may perform any act which his principal is authorized to perform. The officer appointing a deputy or other employee shall be responsible for the acts of his appointees upon his official bond and may revoke each appointment at pleasure." (Emphasis supplied.)
Likewise, in the case of court commissioners, although the power of appointment with respect to such persons is vested by RCW 2.24.010 in the superior court judge or judges involved, their salaries, again, are to be fixed by the appropriate board of county commissioners. In this case, the statute is RCW 2.24.030 and it reads as follows:
"Each court commissioner appointed hereunder shall be allowed a salary, in addition to the fees herein provided for, [[Orig. Op. Page 4]] in such sum as the board of county commissioners may designate, said salary to be paid at the time and in the manner as the salary of other county officials." (Emphasis supplied.)
The next positions to be discussed are those of superior court reporters. As in the case of the court commissioners, the power of appointment with respect to these persons is vested in the judge or judges of the county or judicial districts involved. RCW 2.32.180. And, in the case of judicial districts comprised of class AA counties, their salaries are also to be fixed by the judges of such counties ‑ subject to approval by the board of county commissioners. See, RCW 2.32.210(1).
In the case of judicial districts having a total population of 40,000 or more (excluding class AA counties), however, subsection (2) of this same statute itself prescribes the compensation to be paid to any court reporters appointed to serve in such district; and similarly, subsection (3) fixes the compensation of court reporters in judicial districts having a total population of 25,000 and under 40,000.
In the case of smaller judicial districts, the appointment of court reporters is optional under the provisions of RCW 2.32.220, but typically in such cases the reporter serves two or more such judicial districts in which case the question of compensation is governed by the following provisions of RCW 2.32.230:
"An official court reporter may be appointed to serve two or more judicial districts, each of which has a total population under twenty-five thousand, if the judges thereof so agree, and the salary of such official reporter shall be determined by the total population of all the judicial districts so served in accordance with the schedule of salaries in RCW 2.32.210, and shall be apportioned between the several counties of the districts as therein provided. Such reporter, if appointed, must be qualified to serve, under RCW 2.32.180."
[[Orig. Op. Page 5]]
The applicable statute with respect to this position is RCW 2.32.360, which provides as follows:
"Bailiffs of the several superior courts in this state, appointed by the respective judges thereof, shall be paid for their services such salary or per diem as shall be fixed and allowedby the board of county commissioners of the county in which they serve." (Emphasis supplied.)
Other court employees:
In addition to the above listed positions, you have advised us that you are also concerned with certain other employees such as the secretaries to the judges, the various juvenile court case workers1/ and the like. Unlike the foregoing, these employees are not specifically covered by statutes expressly fixing their salaries or vesting the authority to do so in a particular body such as the county commissioners. In most cases, however, their salaries are, in fact, fixed by the commissioners or other county legislative authority under the county budget law, chapter 36.40 RCW, as specific items in the annual county budget. Accord,State ex rel. Bradford v. King County, 197 Wash. 393, 85 P.2d 670 (1938); see, also, AGLO 1975 No. 7 [[to Curtis M. Janhunen, Prosecuting Attorney, Grays Harbor County on January 28, 1975 an Informal Opinion AIR-75507]], copy enclosed, at pp. 6-7. In other instances, they are not so fixed but, instead, are simply made payable under the general heading of "salaries" in the budget for the agency involved ‑ in this case, the court.
[[Orig. Op. Page 6]]
Authority of superior court judge to increase salaries of court personnel.
In those few cases in which the salaries involved are not fixed (a) by the legislature; (b) by the county commissioners pursuant to an express statute; or (c) by the commissioners as specific items in the budget, there would seem to be no objection to their being set by the judge or judges of the court to which the appropriation for salaries is made. The essence of your first question, however, is whether, in those instances where the salary involved is fixed by the county commissioners or other legislative authority, or is set by the state legislature, itself, it can nevertheless be increased by an action taken by such judge or judges of the county or judicial district in which the subject personnel serve.
Although our research has disclosed a number of cases in which various courts have indicated that they, or the judges thereof, possess inherent powers to fix the salaries of court personnel, none of the cases which have so held appears to have involved a situation in which the salary setting authority is, by statute, vested in some other body. See, "Inherent Powers of the Courts," a pamphlet recently published by the National College of the State Judiciary of which we are enclosing a copy for your immediate reference. In fact, at the particular point in this pamphlet where the precise issue is rhetorically raised (p. 8), it is left unanswered ‑ except by a suggestion that in a proper case in which the salaries involved are clearly inadequate," . . . the inherent judicial power . . . might be . . . held to override statutes and even state constitutional provisions." Cf.,People v. Western Union Telegraph Co., 70 Colo. 90, 198 Pac. 146 (1921); andPeople v. Max, 70 Colo. 100, 198 Pac. 150 (1921).
Moreover, further on under the heading "Restrictions on the Doctrine," the pamphlet cites and quotes from a Pennsylvania case, Leahey v. Farrell, 362 Pa. 52, 66 A. 2d 577 (1949), in which the state supreme court rejected a contention that its trial court judges had an "inherent" power to fix salaries for court personnel at a level higher than that set by the county legislative authority under an express statute. In so holding the court noted an earlier case in which it was held that a trial court judge had [[Orig. Op. Page 7]] the power to appoint and fix the salary of a "secretary or clerk" where no statutory provision existed for such appointment,2/ but it distinguished that case and then explained the thrust of its instant ruling as follows:
"The question here presented, however, is: Where there exists a statute regulating the method of determining the number and fixing the salaries of court employees, is such a statute unconstitutional because of encroachment upon the inherent power of the judiciary? Our answer is in the negative. A court must first comply with reasonable fiscal regulations of the legislature. Should the legislature, or the county salary board, act arbitrarily or capriciously and fail or neglect to provide a sufficient number of court employees or for the payment of adequate salaries to them, whereby the efficient administration of justice is impaired or destroyed, the court possesses the inherent power to supply the deficiency. Should such officials neglect or refuse to comply with the reasonable requirements of the court they may be required to do so by mandamus."
In our opinion this case represents the correct approach to the subject.3/ Where, as in the instances above described [[Orig. Op. Page 8]] in this opinion, the salary of a court aide is fixed by statute, or by the county commissioners or other legislative authority pursuant thereto (including the county budget law), the statute in questionis constitutional and the salary is presumptively valid. A judge of the court is without power to set a higher salary simply by issuing some form of directive or order in a nonjudicial proceeding. The court may, however, entertain an action for a writ of mandamus to require the salary fixing authority to raise the salaries of its personnel ‑ but it will only be justified in granting the writ if, applying recognized judicial standards, it finds that the legislative authority involved has acted arbitrarily or capriciously to the extent that ". . . the efficient administration of justice is impaired or destroyed . . ." And, necessarily, any such order will be appealable in the same manner as in any other judicial proceeding.4/
[[Orig. Op. Page 9]]
This same approach, in our judgment, is applicable to the question of courtrooms or other physical facilities. The court must first look to and comply with the applicable statutes ‑ in this case, RCW 2.28.139 and 2.28.140 which read, respectively, as follows:
"The county in which the court is held shall furnish the court house, a jail or suitable place for confining prisoners, books for record, stationery, lights, wood, attendance, and other incidental expenses of the court house and court which are not paid by the United States."
"If the proper authority neglects to provide any superior court with rooms, furniture, fuel, lights and stationery suitable and sufficient for the transaction of its business and for the jury attending upon it, if there be one, the court may order the sheriff to do so, at the place within the county designated by law for holding such court; and the expense incurred by the sheriff in carrying such order into effect, when ascertained and ordered to be paid by the court, is a charge upon the county."
Under the first of these statutes, it is the obligation of each county (acting through its county commissioners) to furnish the courtroom and related necessary facilities for the conduct of the superior court. If the county fails to do so, the court may then order the county sheriff to provide the requisite facilities at the expense of the county. Or, if this administrative remedy does not work, [[Orig. Op. Page 10]] the court may compel the commissioners to comply with the requirement of RCW 2.28.139, supra, by issuance of a writ of mandamus in a judicial proceeding ‑ subject to a right of appeal and all of the other procedural requisites of a regular court case.
Lastly, we turn to so much of your second question as involves office facilities for the county prosecuting attorney. In this case, the applicable statute is RCW 36.16.090, which reads as follows:
"The boards of county commissioners of the several counties of the state shall provide a suitable furnished office for each of the county officers in their respective courthouses."
Presumably, if a particular prosecuting attorney does not believe that he has been provided with suitable office facilities, he, likewise, may bring a legal action against the county commissioners seeking either a writ of mandamus or a mandatory injunction to compel them to provide such facilities. And, if the court in which the suit is brought agrees with the prosecutor's contentions, it may order the county commissioners to comply. Accord,Leahey v. Farrell,supra. This, however, appears to be the sole method by which a superior court judge of the county in question could become involved in that situation.
We trust that the foregoing response to your two questions, as stated at the outset of this opinion, will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Cf., Zylstra, et al. v. Piva, et al., Washington State Supreme Court No. 43485, now pending with the court. It appears, however, from the briefs in that case that it will have no impact on the instant question, since it involves the question of whether the juvenile court employees there involved are subject to the collective bargaining provisions of chapter 41.56 RCW, not the question of who fixes their compensation. The appellants' brief, pages 31-32 and the respondents' brief, page 13, appear to recognize the authority of the county commissioners actually to establish the salaries of the juvenile court employees.
2/In re Surcharge of County Commissioners, 12 Pa.D.&R.G.R. 471.
3/We recognize that some persons have construed Massie v. Brown, 9 Wn.App. 601, 513 P.2d 1039 (1973), to mean that the judiciary has substantial control over its own employees which cannot be restricted or impaired by the executive or legislative branches of government. InMassie the question was whether warrant servers of the Seattle municipal court were subject to the Seattle civil service system. The court of appeals, in concluding that the warrant servers were not subject to civil service, relied substantially on the concept of a separation of powers between the three branches of government. It should be noted that one judge on the court of appeals, while concurring in the result, specifically disclaimed any ruling on the concept of the separation of power. Further, the state supreme court inMassie v. Brown, 84 Wn.2d 490 (1974), while affirming the conclusion that the employees were not subject to civil service, did so solely on the ground that there was no statutory authority for the city of Seattle to extend its civil service provisions to warrant servers. The court did not base its decision upon any concept of separation of powers. In light of the supreme court decision, it appears that little weight can be given to the court of appeals' decision relying upon a separation of power.
4/We would prefer to leave open, as a matter of policy, the question of whether such a case (or a comparable one involving court facilities under question (2)) should be heard by a judge of the court actually involved or whether, instead, he should disqualify himself and turn the case over to a visiting judge from another county. See, however, Canon 3C of The Code of Judicial Conduct which requires a judge to disqualify himself in any proceeding in which his impartiality might reasonably be questioned. And, obviously, if the action is brought by the judge himself or to enforce a specific directive of the judge, rather than by the affected court aide, it will have to be heard by someone else.