Bob Ferguson
Other LanguagesAGO 1992 No. 13 -
Attorney General Ken Eikenberry
WASHINGTON CITIZENS' COMMISSION ON SALARY FOR ELECTED OFFICIALS-- COURTS--JUDGES--SALARIES AND WAGES--COUNTIES--CONSTITUTIONAL AMENDMENTS--ELECTIONS--Applicability of Amendment 78 to Part-time District Court Judges and Qualifications for Nonattorney to be Elected District Court Judge
1. Article 28 of the Washington Constitution (Amendment 78) provides that an independent salary commission shall set the salary for district court judges. With regard to part-time district court judges, the commission has set the salary based on the proportion of full-time work for which the part-time judge is authorized. The county legislative authority determines the proportion of work for which the part-time district court judge is authorized.
2. Prior to 1991 the commission had not established a salary for part-time district court judges. Amendment 78 provides that salaries in effect in 1987 shall remain in effect until changed by the commission. Thus, part-time district court judge salaries were set pursuant to RCW 3.58.020 until 1991 when the commission changed the salary. At that time, the salaries were properly set by the commission.
3. RCW 3.46.060 provides that a nonattorney can seek election as a district court judge under certain circumstances. A nonattorney district court judge can seek reelection if he or she is a registered voter of the district court district, and has been elected and has served as a district court judge. A nonattorney district court judge with these two qualifications can seek reelection even if the population of the district is between 5,000 and 10,000.
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June 30, 1992
HonorableDennis W. Morgan
Adams County Prosecuting Attorney
120 West Main Avenue
Ritzville, Washington 99169
Cite as: AGO 1992 No. 13
Dear Mr. Morgan:
By letter previously acknowledged, you asked our opinion regarding two questions which are paraphrased as follows:
1. Does a county legislative authority have the power to establish the salary of a part-time district court judge?
2. Does RCW 3.34.060 preclude a nonattorney who is serving as an elected district court judge seeking reelection to the position at the next election when the district population exceeds 5,000?
We answer the first question as explained in the following analysis, and the second question is answered in the negative.
ANALYSIS
Question 1:
Does a county legislative authority have the power to establish the salary of a part-time district court judge?
Based upon our analysis which will follow, we conclude that the county legislative authority has the authority to create and define the office of part-time district court judge. Once the office is defined, e.g., 50 percent part-time judgeship, the salary is automatically determined by the salary standard established by the Washington Citizens' Commission on Salary for Elected Officials (hereinafter "Commission").
On November 4, 1986, article 28 of the Washington Constitution was modified by Amendment 78, relating to the establishment of salaries for various elected officials, including judges of the district courts. Article 28, section 1 (Amendment 78) provides in relevant part:
Salaries for members of the legislature, elected officials of the executive branch of state government, and judges of the state's supreme court, court of appeals, superior courts, and district courts shall be fixed by an independent commission created and directed by law to that purpose. . . .
. . . .
. . . The salaries fixed pursuant to this section shall supersede any other provision for the salaries of members of the legislature, elected officials of the executive branch of state government, and judges of the state's supreme court, court of appeals, superior courts, and district courts. The salaries for such officials in effect on January 12, 1987, shall remain in effect until changed pursuant to this section.
(Emphasis added.)
Article 28 (Amendment 78) was implemented by legislation also enacted in 1986, chapter 155, Laws of 1986.[1] The Legislature established a commission composed of eight members selected by lot from among registered voters and seven members selected jointly by the Speaker of the House of Representatives and the President of the Senate, based on certain criteria. The names of these 15 people are forwarded to the Governor who appoints them to the Commission. Members shall hold office for four years and no person may be appointed to more than two terms. RCW 43.03.305(1)-(4).
RCW 43.03.310(1) provided that the Commission shall study and fix the salary for "all judges of the supreme court, court of appeals, superior courts, and district courts". (Emphasis added.) RCW 43.03.310(5) provides that the Commission "shall file its initial schedule of salaries for the elected officials with the secretary of state [in 1987] and shall file a schedule biennially thereafter."
In 1987, chapter 1, section 1, Laws of 1987, 1st Ex. Sess., the Commission established the salary for full-time district court judges but made no reference to part-time judges. Two years later, chapter 4, section 2, Laws of 1989, 2nd Ex. Sess., the Commission again omitted any reference to part-time district court judges.
During this period, part-time district court judges were paid in accordance with RCW 3.58.020. This statute authorized the county legislative authority to set the salary of part-time district court judges within a maximum and minimum authorized by the Legislature. For example, in districts with a population of under 2,500, the allowable salary ranged between $1,500 and $12,000. RCW 3.58.020(1). This wide range gave the county legislative authority the ability to have a part-time judge that worked a little and received less salary or a part-time judge who worked a lot and received a greater salary.
In the spring of 1991, before the Commission made its biennial revision of salaries, the Legislature amended RCW 3.58.020. Laws of 1991, ch. 338, § 3, p. 1857. The amendment declared "[t]he annual salaries of part time district judges shall be set by the citizens' commission on salaries."[2] Id.
The Commission, on June 3, 1991, filed with the Secretary of State its revised salaries, including a salary for part-time district court judges. The Commission provided: "The salary for a part-time district court judge shall be the proportion of full-time work for which the position is authorized, multiplied by the salary for a full-time district court judge." Laws of 1991, 1st Sp. Sess., ch. 1, § 2(4), p. 2260.
Also, in 1991 the Legislature amended RCW 3.58.020, eliminating the statutory salaries of part-time district court judges. Laws of 1991, ch. 338, § 3, p. 1857. As amended, RCW 3.58.020 provides that the salary for part-time district court judges shall be set by the Commission. This presents the question whether the 1991 amendment to RCW 3.58.020 simply recognized the constitutional authority of the Commission or whether it purported to statutorily authorize the Commission to set the salary of part-time district court judges.
When one looks to a provision of law, whether statutory or constitutional, unless an ambiguity is present, there is no need to resort to rules of interpretation. Motorcycle Dealers Ass'n v. State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988). Amendment 78, having been directly approved by the voters, should therefore be read "as the average informed lay voter would read it." Id. at 674.[3] It is highly doubtful that Amendment 78 would have been read by an informed lay voter as applying to district court judges, but excluding those individuals who serve as district court judges in a part-time capacity. The all-inclusive description of the scope of Commission power is to set salaries for all district court judges: "Salaries for . . . judges of the . . . district courts shall be fixed by an independent commission created and directed by law to that purpose." Const. art. 28, § 1 (Amend. 78). Moreover, section 1 goes on to provide that "[t]he salaries fixed pursuant to this section shall supersede any other provision for the salaries of . . . judges of the . . . district courts."
To construe the language of Amendment 78 "as the average informed lay voter would read it" (Motorcycle Dealers, 111 Wn.2d at 674), one of the aids is the official voters pamphlet. As our court stated in Estate of Turner, 106 Wn.2d at 654, "evaluate information included in the official voters pamphlet to determine the purpose and intent of a successful initiative." This source is equally applicable to constitutional amendments submitted to the voters for approval.
The 1986 official voters pamphlet was published by the Office of the Secretary of State and distributed to the voters of Washington prior to the state general election of November 4, 1986. In that publication, the official explanation of proposed constitutional Amendment 78, provided by the Attorney General, stated:
The salary-setting function of the Legislature would be constitutionally removed from that body and vested in an independent commission. . . .
. . . .
The independent commission would be authorized by this constitutional amendment to increase or decrease salaries of legislators, state elected officials, and judges of the state's courts including the district courts. . . .
Voters Pamphlet 13 (1986).
As explained in the voters pamphlet, the Legislature's ability to establish salaries for district courts was constitutionally removed and vested in an independent citizens' commission. The independent commission was authorized to increase or decrease salaries of, interalia, judges of the state's district courts. No differentiation was made in the explanation between part-time versus full-time district court judges. The Legislature's authority to establish salaries for district court judges was removed and transferred to the newly created independent commission. Thus, the authority of the independent commission to establish the salaries for part-time district court judges is derived from Amendment 78, not the 1991 amendment to RCW 3.58.020 (Laws of 1991, ch. 338, § 3, p. 1857). The Legislature cannot encroach upon express constitutional provisions. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 651, 771 P.2d 711, 780 P.2d 260 (1989).
As earlier noted, from 1987 to 1991 the Commission did not set the salaries for part-time district court judges. Those judges were compensated in accordance with prior RCW 3.58.020. The Commission was empowered by Amendment 78 to our state constitution to set the salaries of part-time district court judges, but did not do so.
That possibility was foreseen and addressed by Amendment 78 which specifically provides: "The salaries for such officials in effect on January 12, 1987, shall remain in effect until changed pursuant to this section." The continuance of salaries until modified by the commission was also recognized in the implementing legislation. RCW 43.03.310(8) provides: "Salaries of the officials referred to in subsection (1) of this section that are in effect on January 12, 1987, shall continue until modified by the commission under this section." Accordingly, part-time district court judges continued to be paid in accordance with prior RCW 3.58.020 until the 1991 action of the Commission became effective on September 3, 1991.
Once the Commission acted to set the salary of part-time district court judges, the provisions of Amendment 78 and RCW 43.03.310(8), authorizing a continuation of salary pending Commission action, were no longer operative.
The Commission established a part-time district court judge's salary as follows: "The salary for a part-time district court judge shall be the proportion of full-time work for which the position is authorized, multiplied by the salary of a full-time district court judge." Laws of 1991, 1st Sp. Sess., ch. 1, § 2(4), p. 2261 (emphasis added). Thus, the salary of a part-time district court judge is pegged to the salary of a full-time judge. For example, effective September 3, 1992, a full-time district court judge will be compensated at $91,900 per year. Laws of 1991, 1st Sp. Sess., ch. 1, § 2(3)(d), p. 2261. If a part-time district court judge was authorized as a half-time position, the salary for the position would by $45,950 ($91,900 x .50).
Although the Commission has set the salary for part-time district court judges, it has not attempted to define part-time. Instead, the Commission pegs the salary to "the proportion of full-time work for which the position is authorized". Laws of 1991, 1st Sp. Sess., § 2(4), p. 2261. In our view, it is the responsibility of the county legislative authority to determine the proportion of full-time work for which a part-time judge is authorized.
RCW 3.34.020 sets out requirements for numbers of full-time district court judges. It also provides that the "county legislative authority may by resolution make a part time position a full time office." Thus, it is the county legislative authority that authorizes the office of part-time district court judge. It is for the county legislative authority to determine if a part-time position is quarter-time, half-time, or three-quarter time. Based on the authorization for the position, the salary is determined in accordance with the direction of the Commission.
We recognize that RCW 3.34.040 has long directed part-time district court judges to "devote sufficient time to the office to properly fulfill the duties thereof". However, prior to the Commission's action, the county legislative authority effectively defined the "part-time" by setting the salary within the statutory ranges of prior RCW 3.58.020. We find nothing in Amendment 78 or the implementing statutes which have removed the authority of the county legislative body to define "part-time". A part-time district court judge, authorized at a half-time position, does not make the position three-quarter or even full-time by putting in extra hours.
To summarize our response to your first question, we conclude that article 28, section 1 of the Washington Constitution (Amendment 78) vested authority in the Commission to set salaries for all district court judges, both full-time and part-time. The Commission exercised this authority for the first time in 1991 with regard to part-time district court judges. Once the Commission modified the salaries of part-time district court judges, the salaries must be calculated as directed by the Commission. The salary set by the Commission depends in part on the proportion of full-time work for which the part-time district court position is authorized. It is the county legislative authority that determines the proportion of work for which the position is authorized.
Question 2:
Does RCW 3.34.060 preclude a nonattorney serving as an elected district court judge from seeking reelection to the position at the next election when the district population exceeds 5,000?
The 1991 Legislature amended RCW 3.34.060 as follows:
To be eligible to file a declaration of candidacy for and to serve as a district court judge, a person must:
(1) Be a registered voter of a district court district and electoral district, if any; and
(2) Be either:
(a) A lawyer admitted to practice law in the state of Washington; or
(b) A person who has been elected and has served as a justice of the peace, district judge, municipal judge, or police judge in Washington; or
(c) In those districts having a population of less than ((ten)) five thousand persons, a person who has taken and passed the qualifying examination for the office of district judge as shall be provided by rule of the supreme court.
Laws of 1991, ch. 361, § 1, p. 2054 (bill draft form).
The amendment reduced, from 10,000 to 5,000, the size of a district in which a nonattorney, who had passed the qualifying exam, could seek election as a district court judge. The thrust of your question is the effect of this population reduction on a nonattorney district court judge seeking reelection in a district with a population of between 5,000 and 10,000.
Our primary objective is to ascertain and carry out the intent of the Legislature. Martin v. Meier, 111 Wn.2d 471, 479, 760 P.2d 925 (1988). The text of this legislation is to be interpreted in accordance with well-known rules of statutory construction. Id. at 479. The words of a statute are to be given their plain and ordinary meaning, unless a contrary intent is evident. The clear language of a statute is to be respected. Federated American Ins. Co. v. Marquardt, 108 Wn.2d 651, 658, 741 P.2d 18 (1987); Griffin v. Department of Social & Health Servs., 91 Wn.2d 616, 624, 590 P.2d 816 (1979).
The qualifications for candidacy as a district court judge are plainly stated. To qualify, RCW 3.34.060 provides that the candidate must be a registered voter of the district court district, andeither (1) be a lawyer admitted to practice in this state; or (2) be an elected incumbent judge who wishes to run for reelection; or (3) in those judicial districts having a population of less than 5,000, an individual who has taken and passed a qualifying examination for the office of district judge.
RCW 3.34.060(2) establishes three alternative qualifications. If a candidate satisfies either of subsections (a), (b), or (c) of RCW 3.34.060(2), that candidate is qualified to file a declaration of candidacy for a district court judge position.
Inasmuch as your question posits that a serving district court judge desires to file for reelection,[4] we conclude that he or she is entitled to do so, pursuant to RCW 3.34.060(2)(b), without satisfying the additional criteria of RCW 3.34.060(2)(a) or (2)(c).[5] Thus, the answer to your second question is no.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
Attorney General
J. LAWRENCE CONIFF
Senior Counsel
Assistant Attorney General
JLC:aj
[1] The implementing legislation was enacted prior to the adoption of Amendment 78 by the voters. The implementing legislation only went into effect if Amendment 78 was approved by the people. Laws of 1986, ch. 155, § 16, p. 497.
[2] This was enacted by the Legislature on April 27, 1991, and signed by the Governor on May 21, 1991. The Governor vetoed the emergency clause so that the act became effective July 28, 1991.