COURTS ‑- JUSTICE COURTS ‑- 1961 JUSTICE COURT ACT ‑- ADOPTION BY COUNTIES AFTER 1962 ‑- EFFECT ON TERMS OF ELECTED JUSTICES OF THE PEACE IF ACT IS MADE WHOLLY OPERATIVE DURING TERM ‑- APPOINTMENT...

COURTS ‑- JUSTICE COURTS ‑- 1961 JUSTICE COURT ACT ‑- ADOPTION BY COUNTIES AFTER 1962 ‑- EFFECT ON TERMS OF ELECTED JUSTICES OF THE PEACE IF ACT IS MADE WHOLLY OPERATIVE DURING TERM ‑- APPOINTMENT OF A JUSTICE OF THE PEACE AS JUSTICE COURT JUDGE UNDER 1961 JUSTICE COURT ACT ‑- SALARY.

A justice of the peace who is elected to a four-year term commencing January 14, 1963, may not continue to serve or have his salary increased if the board of county commissioners of the county in which he serves elects to adopt and make wholly operative the provisions of chapter 299, Laws of 1961, (commonly known as the 1961 justice court act) prior to the normal expiration of his term.  However, the justice of the peace, if otherwise qualified, may be appointed by the county commissioners as a justice court judge under the act when it becomes wholly operative.

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                                                                   June 15, 1964

Honorable Nathan G. Richardson
Prosecuting Attorney
Clallam County
Port Angeles Savings & Loan Building
Port Angeles, Washington

                                                                                                              Cite as:  AGO 63-64 No. 106

Dear Sir:

            By letters previously acknowledged you have requested the advice of this office on a question which we paraphrase as follows:

            May a justice of the peace who is elected to a four-year term commencing January 14, 1963 (a) continue to serve and (b) be paid an increased salary if the board of county commissioners of the county in which he serves elects to adopt the provisions of chapter 299, Laws of 1961 (commonly known as the 1961 justice court act) prior to the normal expiration of his term?

            We answer your question in the manner set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            In 1961, the legislature enacted a new justice court act, chapter 299, Laws of 1961.  Section 2 of this act (cf. RCW 3.30.020) provides:

            "The provisions of this act shall apply to class AA and class A counties: . . . The provisions of this act may be made applicable to any county of the first, second, third, fourth, fifth, sixth, seventh, eighth, or ninth class upon a majority vote of its board of county commissioners."

            In AGO 63-64 No. 54 [[to Prosecuting Attorney, Klickitat County on September 9, 1963]], a copy of which is enclosed, this office concluded that the aforesaid optional provision (in regard to counties of the first through ninth classes) was intended by the legislature to be continuing, and that the legislature favored application of the act in any county which voluntarily assented to its provisions.

            Regarding the possible effect of adoption of the act upon the terms of office of existing justices of the peace, we said:

            "Having concluded that the option to make the provisions of the 1961 justice court act applicable in a county is still available, we proceed to your exact question, which is whether the act can be made applicable during the term of existing justices of the peace, terminating their offices.  This is a problem because the legislature has not expressed itself on the time for bringing a county under the provisions of the act after 1962.  That being the case, we are of the opinion that it is up to the board of county commissioners to select an orderly method of bringing the change into effect, if it chooses to make the provisions of the 1961 justice court act applicable in a county.  Cf. 2 McQuillin, Municipal Corporations  [[Orig. Op. Page 3]] (3rd ed.) § 10.29.  This could involve voting to make the act applicable in the county, establishing districts, and then waiting until the election in 1966 to select justices of the peace, or the change of courts could be made at some other time selected by the board of county commissioners, and it could appoint justices of the peace to fill the vacant offices until the next general election.  Other transitional procedures might be appropriate."  (Emphasis supplied.)

            The first point to be derived from this statement is that the action of the board of county commissioners under § 2 (cf. RCW 3.30.020, supra) does not in and of itself affect existing terms of offices of justices of the peace elected prior to the date of adoption of the 1961 act.  It is not until the act has been fully implemented, through the establishment of justice court districts where appropriate, etc., and through the election or appointment of persons to fill the newly created justice court offices, that the act becomes wholly operative in the county.  Cf. § 129, chapter 299, Laws of 1961 (RCW 3.74.920).

            The second point to be noted from the above‑quoted statement is that the question of whether adoption and implementation of the 1961 justice court act will result in a premature termination of existing terms of office of those justices of the peace elected prior to the adoption of the act will depend on how, and on the basis of what time schedule, the county commissioners decide to bring the provisions of the act into full operation.

            It is obvious, therefore, that the problems you raise will not necessarily exist in every case where a board of county commissioners elects to adopt the provisions of chapter 299, Laws of 1961 (as provided for in § 2),supra, by resolution or ordinance passed prior to the normal expiration of the terms of office of those justices of the peace in a county who were elected prior to the date of the county commissioners' action.  Only where, in addition to adopting the  [[Orig. Op. Page 4]] provisions of the act, the county commissioners determine to implement it in such a manner as to prematurely terminate existing terms of office will the questions which you posed arise.

            Once this point is understood, the answer to the first facet of your question becomes readily apparent.  If, in addition to adopting the provisions of the 1961 justice court act, a board of county commissioners does determine to fully implement the act so as to prematurely terminate existing terms of office, a justice of the peace elected prior to the date of adoption and implementation may not continue to serve because his term is at an end.  Assuming he is otherwise eligible, however, this same person who has ceased to serve because his term has been ended could be appointed (as provided for in the plan of implementation) to the newly created justice court office to serve therein until the next general election.

            If that should occur, we believe there would be no constitutional objection to the person in question receiving the salary provided for by law (see §§ 100-101, chapter 299, Laws of 1961, and RCW 3.58.010 and 3.58.020) for justices of the peace holding office as part of the "new" justice court system.  Both Article II, § 25 (Amendment 35), and Article XI, § 8, of our state constitution simply prohibit (in so far as is here pertinent) increasing the compensation of certain public officers "during his term of office."  In case of the situation above described, it is true that the "old" justice of the peace now serving by appointment as a justice of the peace of a newly established justice court district may as a result of the circumstances which have transpired be receiving greater compensation than he was receiving by virtue of his old office.  However, this will not constitute an increase in compensation during his term of office because the increase occurred after his term of office had ended; i.e., upon the commencement of a new term of a new office.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General