Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1971 No. 19 - Jul 1 1971
Attorney General Slade Gorton


A county prosecuting attorney has the legal obligation to appear and participate in mental illness hearings in support of an application for commitment of a person alleged to be a "mentally ill" person, based upon his endorsement of the application as provided for in RCW 71.02.090.

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                                                                     July 1, 1971

Honorable Anton J. Miller
Prosecuting Attorney
Pacific County
P. O. Box 563
Raymond, Washington 98577

                                                                                                                 Cite as:  AGO 1971 No. 19

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on a question which we paraphrase as follows:

            Based upon his endorsement of an application for commitment of a person alleged to be "mentally ill" as provided for under RCW 71.02.090, does a county prosecuting attorney have the legal obligation to appear and participate in the ensuing mental illness hearing in support of such application?

            The answer to your inquiry is in the affirmative as detailed in the analysis below.


            Under RCW 71.02.110, a mental illness commitment hearing is a civil proceeding denominated as a probate matter.  An individual alleged in the application to be mentally ill has the status of a defendant.  State ex rel. Richey v. Sup. Ct., 59 Wn.2d 872, 876, 877, 371 P.2d 51 (1962).

             [[Orig. Op. Page 2]]

            A "mentally ill person" is defined in RCW 71.02.010 as meaning:

            ". . . any person found to be suffering from psychosis or other disease impairing his mental health, and the symptoms of such disease are of a suicidal, homicidal, or incendiary nature, or of such nature which would render such person dangerous to his own life or to the lives or property of others."

            The law relating to mental illness commitment hearings, which is contained in chapter 71.02 RCW, does not specifically require the prosecuting attorney to appear and participate in such a proceeding.  However, he is expressly required by RCW 71.02.090 to approve or disapprove the filing of any application for the "involuntary hospitalization" of an alleged mentally ill person ‑ as follows:

            "Any person may make application to the superior court for the county in which an alleged mentally ill person is found for the involuntary hospitalization of such person.  Such application shall be made under oath and shall be to the effect that there is in such county a mentally ill person who, by reason of such mental illness, is unsafe to be at large and requesting that such person be taken before the superior court for examination.  Before accepting said application for filing, the same must be endorsed by the prosecuting attorney of said county where the court has not designated some other person, to the effect that he or his deputy has personally examined the applicant, investigated the merits of the application and believes reasonable grounds exist for filing of same."  (Emphasis supplied.)

            A situation somewhat analogous to the subject of your inquiry was involved in the case ofIn re Lewis, 51 Wn.2d 193, 201, 202, 316 P.2d 907 (1957), concerning the role of a prosecuting attorney in juvenile court proceedings.  In that  [[Orig. Op. Page 3]] case, the prosecuting attorney of King county had failed to appear and represent the juvenile probation officer in such a proceeding, notwithstanding a request made to him to do so by the court ‑ after which the court appointed a special prosecutor.  Commenting on this instance of nonparticipation by the prosecuting attorney in a juvenile court matter, the supreme court, on review, said:

            ". . . It cannot be denied that the state, while it is not named as a party, is the real party in interest in a juvenile court proceeding, for if a child is found to be dependent or delinquent, it is made a ward of the state.

            ". . .

            ". . . The effective and orderly conduct of juvenile hearings is a matter with which the state and county are both deeply concerned.  The letter and spirit of the statute prescribing the duties of the prosecuting attorney are broad enough to include the duty to assist the court in a juvenile court proceeding when his services are needed.

            "When the prosecutor declined to appear, the court was authorized to appoint a special prosecutor, under RCW 36.27.030, which provides for the appointment of such a prosecutor when the prosecutor fails, from sickness or other cause to attend court.  The relators insist that this appointment increased their burden.  Of course, where only one party is represented by counsel, the burden upon that party is lighter than it is where all parties are represented.  However desirable the right to be free of opposing counsel may be, the law does not espouse such a right, for obvious reasons."

            Neither by custom or law is the state or a county named as  [[Orig. Op. Page 4]] a party in mental illness proceedings.1/   However, by the force of the provisions of RCW 71.02.090, quoted above, the prosecuting attorney does possess the responsibility to determine whether or not a mental illness proceeding may be commenced upon the basis of the facts alleged in the application.  Therefore, when he does approve the filing of an application for the involuntary hospitalization of an alleged mentally ill person, it follows that the matter becomes imbued with a public interest, and the state, while not named as a party, becomes a real party in interest.

            Furthermore, looking toward the results of such hearings as bearing on the question of the state's interest (as in In re Lewis, supra, at page 201), under RCW 71.02.240 and 71.02.450 the alleged mentally ill person may be committed for an indefinite period of time for care and treatment in a state hospital.  He thereby becomes, in effect, a ward of the state.  In addition, he may suffer a loss of civil rights (RCW 71.02.650, RCW 72.23.900).  All of this lends further support to the proposition that in mental illness hearings, the state is a real party in interest, just as in a juvenile proceeding.

            InBates v. School District No. 10, 45 Wash. 498, 88 Pac. 944 (1907), the court, in discussing the responsibilities of a prosecuting attorney, made certain observations, quoted with approval in In re Lewis, supra, which seem specially pertinent to the subject of your inquiry.  The court there stated:

            "'In this state, the prosecuting attorney is also the county attorney, and the relations of that officer to the county may be such as possibly require him to appear in behalf of the county in  [[Orig. Op. Page 5]] some instances, even if the specific duty may not be particularly and expressly prescribed by statute.  If so, the duty arises out of the obligations he has assumed as an officer of the county to discharge the general functions of an attorney in his [its] behalf.'"

            Consistent with the rational ofIn re Lewis, supra, we are therefore of the opinion that in a mental illness hearing, the prosecuting attorney of the county in question, upon endorsing the application under RCW 71.02.090, supra, has a further responsibility to appear and participate in the hearing in support of said application.  By his approval of the application, the prosecutor has attested

            ". . . that he or his deputy has personally examined the applicant, investigated the merits of the application and believes reasonable grounds exist for filing of same."

            Thus, it seems reasonable to assume that the legislature intended the prosecutor would thereafter appear at the hearing in support of the application.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 36.27.020 sets forth the duties to be performed by the prosecuting attorney.  The statute provides in part that:

            "The prosecuting attorney shall:

            ". . .

            "(4) Prosecute all criminal and civil actions in which the state or his county may be a party, . . ."