COURTS ‑- JUSTICE COURTS ‑- 1961 JUSTICE COURT ACT ‑- JURY, WITNESS AND SHERIFF'S FEES

COURTS ‑- JUSTICE COURTS ‑- 1961 JUSTICE COURT ACT ‑- JURY, WITNESS AND SHERIFF'S FEES.

1. The last sentence in § 105, chapter 299, Laws of 1961 (RCW 3.62.010) applies to the whole section not merely the proviso.

2. In justice courts, organized under the 1961 justice court act, jury fees are chargeable as provided in RCW 12.12.030; and witness fees and sheriff's fees, in the manner and to the extent provided by RCW 10.46.190 (criminal actions) and RCW 12.20.060 (civil actions).

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                                                                  March 29, 1963

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
County City Building
Tacoma, Washington

                                                                                                                Cite as:  AGO 63-64 No. 15

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions relative to the fees and costs chargeable in justice courts established pursuant to chapter 299, Laws of 1961.  Your questions are as follows:

            1. In § 105, (RCW 3.62.010) does the last sentence regarding costs apply to the proviso or to the whole section?

            2. Does the justice court have the authority to charge jury fees, witness fees and sheriff's fees as part of a civil or criminal action?

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

                                                                     ANALYSIS

            By chapter 299, Laws of 1961, our state legislature enacted a comprehensive statute designed to effectuate a substantial reorganization of courts of limited jurisdictions.  Long v. Odell, 160 Wash. Dec. 152 [[60 Wn. (2d) 151]], 372 P. (2d) 548 (1962).

            Section 105 of the act, to which reference is made in your first question,supra, provides as follows:

             [[Orig. Op. Page 2]]

            "The court may at the time of sentencing or at any time thereafter suspend a portion or all of a fine or penalty except that costs of the action shall not be suspended:  Provided, That the court may suspend costs in the case of juvenile or indigent defendants.  'Costs' for the purpose of this section, does not include jury fees, witness fees or sheriff's fees."  (Emphasis supplied.)

            It is our opinion that the last sentence, above emphasized, applies to the entire section as expressly stated therein.  The evident purpose of the section is to allow the suspension of a portion or all of a fine or penalty in cases of criminal convictions but not to allow the suspension ofcourt costs except in the cases of juvenile or indigent defendants.  The purpose of the last sentence appears simply to make it clear that "costs" as used in the section meanscourt costs and not the disbursements of a litigant as jury fees, witness fees, or sheriff's fees.

            "Court costs," in the case of justice courts operating under chapter 299, Laws of 1961, are limited to the filing fees prescribed by §§ 110 (civil) and 111 (criminal) as follows:

            Sec. 110:  "In any civil action commenced before or transferred to a justice court, the plaintiff shall, at the time of such commencement or transfer, pay to such court the sum of four dollars, which sum shall be all the fees and charges which any party to such action shall be compelled to pay to the court up to and including the rendition of judgment in such action:  Provided, That if process in replevin, attachment, or garnishment shall issue therein, the party procuring such process shall pay to such court an additional sum of one dollar for each such process as the fees and charges of the court incident to the proceedings."  (RCW 3.62.060)

            Sec. 111:  "Except in traffic cases wherein bail is forfeited to a violations bureau, and except in cases filed in municipal departments established pursuant to chapter 5 of this act, in every criminal action filed by a city for an ordinance violation the city shall be charged a four dollar filing fee.  In all other criminal actions, no filing fee shall be assessed or collected:  Provided, That in such cases, for the  [[Orig. Op. Page 3]] purposes of section 105, four dollars of each fine or penalty shall be deemed filing costs."  (RCW 3.62.070)

            Of course § 105,supra, allowing suspension of fines or penalties but not of court costs (except in the case of indigent or juvenile defendants), by its own terms, applies only to criminal actions.

            In AGO 63-64 No. 14 [[to Prosecuting Attorney, Spokane County on February 28, 1963]], a copy of which is enclosed herein, we advised that:

            "In those cases where (pursuant to § 111) no filing fee is to be assessed or collected other than as part of the fine or penalty imposed upon conviction, the four dollar filing fee is not to be assessed in addition to the ordinary fine for penalty imposed."

            And we further advised that:

            "In those cases where (pursuant to § 111) no filing fee is to be assessed or collected, other than as part of the fine or penalty imposed upon conviction, the court may suspend only that part of the fine or penalty imposed which is in excess of the nonsuspendable four dollar filing fee."

            It is this four dollar filing fee, then, which may not be suspended except in the case of indigent or juvenile defendants notwithstanding that the remainder of the fine or penalty imposed may be suspended.

            On the other hand jury fees, witness fees, or sheriff's fees, where properly chargeable against a convicted defendant, may not be suspendedeven in the case of an indigent or juvenile defendant; this, because of lack of authority in the court to suspend such fees.

            We turn then to consideration of your second question; namely‑- Does the justice court have the authority to charge jury fees, witness fees and sheriff's fees as part of a civil or criminal action?

            With regard to jury fees, RCW 12.12.030 provides:

            "After the appearance of the defendant, and before the justice shall proceed to enquire into the merits, of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful men having the qualifications of jurors in the superior court of the same county unless the parties shall agree upon a less  [[Orig. Op. Page 4]] number; provided, that the party demanding the jury shall first pay to the justice the sum of six dollars, which shall be paid over by the justice to the jury before they are discharged, and said amount shall be taxed as costs against the losing party."  (Emphasis supplied.)

            This provision is clearly applicable to justice courts operating under chapter 299, Laws of 1961.  Section 112 thereof (cf. RCW 3.66.010) provides in pertinent part:

            ". . . The justice courts shall, upon the demand of either party, impanel a jury to try any civil or criminal case in accordance with the provisions of chapter 12.12 RCW: . . ." (Emphasis supplied.)

            Furthermore, this same section also provides that:

            ". . .all laws of a general nature shall apply to such justice court as far as the same may be applicable and not inconsistent with the provisions of this act. . . ." (Emphasis supplied.)

            Nothing to the contrary appearing anywhere in chapter 299, Laws of 1961, this last quoted provision would seem to make applicable to the new justice courts operating thereunder each of the following statutes:

            RCW 2.40.010, providing:

            "Witnesses shall receive for each day's attendance in all courts of this state, besides mileage at ten cents per mile each way, four dollars."

            RCW 36.18.040, which enumerates the fees to be collected by sheriffs for the performance of designated official services; RCW 10.46.190, setting forth the scope of liability for costs of a person convicted of a crime, as follows:

            "Every person convicted of a crime or held to bail to keep the peace, shall be liable to all the costs of the proceedings against him, including, when tried by a jury in the superior  [[Orig. Op. Page 5]] court, a jury fee as provided for in civil actions, and when tried by a jury before a committing magistrate, six dollars for jury fee, for which judgment shall be rendered and collection had as in cases of fines.  The jury fee, when collected for a case tried by the superior court, shall be paid to the clerk, to be by him applied as the jury fee in civil cases is applied."

            And finally, RCW 12.20.060, which provides for the recovery of costs by the prevailing party in a civil action in justice court.

            Accordingly it may be stated, in response to your second question, that jury fees are chargeable in the new (chapter 299, Laws of 1961) justice courts as provided in RCW 12.12.030, supra.  Additionally witness fees and sheriff's fees are chargeable in the new justice courts in the manner and to the extent provided for by RCW 10.46.190 (criminal actions) and RCW 12.20.060 (civil actions).

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General