COURTS ‑- JUSTICE ‑- JURIES ‑- IMPOSITION OF JURY FEES IN CIVIL AND CRIMINAL CASES IN DISTRICT JUSTICE COURTS

COURTS ‑- JUSTICE ‑- JURIES ‑- IMPOSITION OF JURY FEES IN CIVIL AND CRIMINAL CASES IN DISTRICT JUSTICE COURTS

(1) The provisions of RCW 12.12.030, as amended by §§ 2 of chapters 53 and 248, Laws of 1977, 1st Ex. Sess., are applicable to civil proceedings in district justice courts organized under the justice court act of 1961; however, neither RCW 10.46.190 nor RCW 35.20.090, as respectively amended by §§ 1 and 3 of the foregoing 1977 acts, are applicable to such district justice courts either in connection with criminal or traffic proceedings in such courts.Jury fees in criminal or traffic cases tried in district justice courts are now governed, instead, by the provisions of chapter 96, Laws of 1975-76, 2nd Ex. Sess. (RCW 10.01.160, et seq.).

(2) The jury fee provided for by RCW 12.12.030, as amended, is to be paid to the county in which the trial occurred and not to be distributed to the jurors.

(3) In civil cases tried before a jury in a district justice court, the only cost item for jury fees which may be imposed is the $25 item provided for in RCW 12.12.030, as amended; however, defendants in criminal or traffic cases tried by a jury in a district court may be charged the actual expenses of providing the jury ‑ but only if (1) the expenses are especially incurred in prosecuting the defendant and (2) the defendant was charged with an offense punishable by imprisonment of six months or less, or a fine of $500 or less, or both.

(4) To the extent that a jury fee is recoverable at all in connection with a criminal trial in a district justice court, that jury fee may be collected from a criminal defendant only after conviction.

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                                                                February 22, 1978

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1978 No. 4

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions concerning the applicability of  [[Orig. Op. Page 2]] chapters 53 and 248, Laws of 1977, 1st Ex. Sess., to district courts organized under the Justice Court Act of 1961 (chapter 3.30 RCWet seq.).  We paraphrase your questions as follows:

            (1) Which portions of chapters 53 and 248, supra, apply (a) to civil proceedings; (b) to criminal proceedings; and (c) to traffic proceedings in district justice courts?

            (2) Is the jury fee provided for by RCW 12.12.030, as amended, to be distributed to the jurors or paid to the county?

            (3) When a party in a district court proceeding is liable for a jury fee, is that party to be charged all expenses of providing a jury or only the $25.00 statutory jury fee?

            (4) Is the jury fee to be collected from criminal defendants in district courts before trial or only after conviction?

            We answer the foregoing questions in the manner set forth in the analysis below.

                                                                     ANALYSIS

            Chapters 53 and 248,supra, both amended three pre‑existing statutes, RCW 10.46.190, RCW 12.12.030 and RCW 35.20.090.  For ease of understanding, the respective amendments are set forth in bill form below.

            (1)RCW 10.46.190

            (a) As amended by § 1, chapter 53, supra, the statute reads 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 court, a jury fee as provided for in civil actions, and when tried by a jury before a committing magistrate, ((six)) twenty-five 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."

             [[Orig. Op. Page 3]]

            (b) Section 1, chapter 248, supra, amended the statute in the same manner as the preceding amendment.

            (2)RCW 12.12.030

            (a) As amended by § 2, chapter 53, supra, the statute reads as follows:

            "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))persons having the qualifications of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number ((,)):  PROVIDED,That the party demanding the jury shall first pay to the justice the sum of ((six)) twenty-five dollars, which shall be paid over by the justice to the ((jury before they discharged)) county, and said amount shall be taxed as costs against the losing party."

            (b) As amended by § 2, chapter 248, supra, the statute reads as follows:

            "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))persons having the qualifications of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number ((,)):  PROVIDED,That the party demanding the jury shall first pay to the justice the sum of ((six)) twenty-five 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."

            (3)RCW 35.20.090

            (a) As amended by § 3, chapter 53, supra, the statute reads as follows:

             [[Orig. Op. Page 4]]

            "In all civil cases and criminal cases where jurisdiction is concurrent with justices of the peace as provided in RCW 35.20.250, within the jurisdiction of the municipal court, the plaintiff or defendant may demand a jury, which shall consist of six citizens of the state who shall be impaneled and sworn as in cases before justices of the peace, or the trial may be by a judge of the municipal court.  A defendant requesting a jury shall pay to the court a fee which shall be the same as that for a jury in justice court.  Where there is more than one defendant in an action and one or more of them requests a jury, only one jury fee shall be collected by the court.  Each juror shall receive five dollars for each day in attendance upon the municipal court, and in addition thereto shall receive mileage as provided by law.  Trial by jury shall be allowed in criminal cases involving violations of city ordinances commencing January 1, 1972 unless such incorporated city affected by this chapter has made provision therefor prior to January 1, 1972."

            (b) As amended by § 3, chapter 248, supra, the statute reads as follows:

            "In all civil cases and criminal cases where jurisdiction is concurrent with ((justices of the peace)) district courts as provided in RCW 35.20.250, within the jurisdiction of the municipal court, the plaintiff or defendant may demand a jury, which shall consist of six citizens of the state who shall be impaneled and sworn as in cases before ((justices of the peace)) district courts, or the trial may be by a judge of the municipal court.  A defendant requesting a jury shall pay to the court a fee which shall be the same as that for a jury in justice court.  Where there is more than one defendant in an action and one or more of them requests a jury, only one jury fee shall be collected by the court.  Each juror shall receive five dollars for each day in attendance upon the municipal court, and in addition thereto shall receive mileage as provided by law.  Trial by jury shall be allowed in criminal cases involving violations of city ordinances commencing January 1, 1972 unless such incorporated city affected by this chapter has made provision therefor prior to January 1, 1972."

             [[Orig. Op. Page 5]]

            Question (1):

            First, you have asked:

            "Which portions of chapters 53 and 248, supra, apply (a) to civil proceedings; (b) to criminal proceedings; and (c) to traffic proceedings in district courts?"

            Because your question concerns only district justice court proceedings, we may quickly dispose of §§ 3 of the two acts.  RCW 35.20.090, which was amended by those two sections, has no application to justice courts at all but, instead, pertains only to municipal courts in incorporated cities having a population of more than four hundred thousand (i.e., Seattle).  See, chapter 35.20 RCW; RCW 3.30.020.

            This leaves us, then, with RCW 10.46.190, as identically amended by §§ 1 of chapters 53 and 248,supra, and with RCW 12.12.030, as differently amended by §§ 2 of those two 1977 acts.  Both of these statutes concern jury trials, one provision applying to criminal proceedings and the other to civil proceedings.

            (a)Civil Proceedings

            In the exercise of both its inherent1/ and its statutory2/ authority to promulgate rules of procedure, the Washington Supreme Court has adopted rules for all courts of limited jurisdiction inferior to the superior court.  JAR 2.  Justice Court Civil Rule (JCR) 38 provides that jury ". . . selection and other matters concerning jury trials are governed by RCW 12.12.030 ‑ 12.12.100 inclusive."  See also, RCW 3.66.010.  Accordingly, in response to part (a) of your first question it is clear that §§ 2 of both chapters 53 and 248, supra, amending RCW 12.12.030, are applicable to civil proceedings in district courts.

             [[Orig. Op. Page 6]]

            (b)Criminal Proceedings

            As noted above, RCW 10.46.190 provides that "[e]very person convicted of a crime . . . shall be liable to all the costs of the proceedings against him including . . . a jury fee as provided in civil actions. . . ."  This statute was first contained in § 2105 of the 1881 Territorial Code and was based upon § 3, page 418, Territorial Laws of 1869.  In AGO 63-64 No. 15 [[to John G. McCutcheon, Prosecuting Attorney of Pierce County, on March 29, 1963]](copy enclosed) we concluded that this statute was applicable to district courts as well as superior courts because RCW 3.66.010, supra, 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 [this act] . . ." and there is no contrary provision in the 1961 Justice Court Act, supra.

            However, in 1976 the legislature adopted an entirely new statute concerning imposition of costs in criminal proceedings.  See, chapter 96, Laws of 1975-76, 2nd Ex. Sess. Section 1 of that act, codified as RCW 10.01.160, provides as follows:

            "(1) The court may require a convicted defendant to pay costs.

            "(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant.  They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

            "(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them.  In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

            "(4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for  [[Orig. Op. Page 7]] remission of the payment of costs or of any unpaid portion thereof.  If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170."

            Both RCW 10.46.190 and RCW 10.01.160 govern the recovery of costs from criminal defendants.  Although the former statute does not describe the purpose of the "jury fee," it clearly labels the fee one of "the costs of the proceedings" against the defendant.  Since both provisions concern the same subject, they are to be read if possible as constituting a unified whole so that effect can be given to each.  State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974); State v. Zornes, 78 Wn.2d 9, 15, 475 P.2d 109 (1970).  However, in our view, it is not possible to reconcile RCW 10.46.190 and RCW 10.01.160.  The former imposes a cost item in all cases while the latter allows costs only when the particular cost is specially incurred.  In addition, RCW 10.46.190 imposes a jury fee in all cases while RCW 10.01.160 permits recovery of jury costs only when the jury trial was not constitutionally required.  Thus, effect cannot be given to both statutes and we must determine through application of established principles of statutory construction which provision controls.

            Although repeals by implication ordinarily are not favored, where a later act of the legislature (1) covers the entire subject matter of an earlier statute, (2) is complete in itself, and (3) is evidently intended to supersede the prior legislation, a repeal will be deemed to have occurred.  Jenkins v. State, 85 Wn.2d 883, 540 P.2d 1363 (1975); Bd. Ag'nst. Discr. v. Bd. of Directors, 68 Wn.2d 262, 272-73, 412 P.2d 769 (1966);State v. Becker, 39 Wn.2d 94, 96, 234 P.2d 897 (1951).  Applying each of these factors here, we conclude that insofar as RCW 10.46.190 imposes a jury fee as a cost of prosecution on a criminal defendant, it has been repealed by chapter 96, Laws of 1975-76, 2nd Ex. Sess. (RCW 10.01.160, et seq.)3/

             [[Orig. Op. Page 8]]

            First, the more recent act, chapter 96, covers all of the subject matter of RCW 10.46.190.  Like RCW 10.46.190, RCW 10.01.160 prescribes when costs, including costs of a jury, may be imposed and the amount of such costs.  That part of the first sentence of RCW 10.46.190 which refers to a jury fee in a proceeding before a committing magistrate was, as we explained at pages 4 and 5 of our letter of May 9, 1968, to the Administrator for the Courts (copy enclosed), impliedly repealed by an 1875 amendment to RCW 10.04.050.  Collection of costs, treated in the remainder of the first sentence of the earlier statute, is now covered in RCW 10.01.180.  The second sentence of RCW 10.46.190, concerning disposition of costs, is impliedly treated in RCW 10.01.170 which indicates that costs and fines are both embodied in the court's sentence and similarly applied.

            Second, RCW 10.01.160-10.01.180, the codification of chapter 96, treat the subject of criminal costs comprehensively.  The recent enactment is complete in itself, requiring no reference to other statutes to determine the operation of the procedure for assessing costs.

            Third, the history leading to the adoption of chapter 96 suggests that the legislature intended to supersede prior law on the subject of costs in response to new developments in constitutional law.  Prior to the adoption of chapter 96, our supreme court held that in the absence of safeguards against oppressive application, repayment of appointed counsel fees as a condition of probation violates an indigent criminal defendant's right to counsel.  State v. Hess, 86 Wn.2d 51, 541 P.2d 1222 (1975); see also State v. Eide, 83 Wn.2d 676, 521 P.2d 706 (1974).  The court noted that a 1971 Oregon statute authorizing the recovery of costs from a defendant had been held constitutional by the U.S. Supreme Court in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed. 2d 642, 94 S.Ct. 2116 (1974), saying:

            "Underlying theFuller decision is a concern that indigent defendants might be discouraged from utilizing court-appointed counsel where repayment for such services could later be required without regard to the defendant's particular circumstances.  Similarly, inEide we were concerned primarily with the absence of standards sufficient to protect the defendant against an arbitrary imposition of costs.  That concern remains.  We have no statute which sets forth guidelines for requiring the repayment of court-appointed attorney fees, and the condition placed upon defendant's probation in this case cannot stand."  State v. Hess,supra, at 54.

             [[Orig. Op. Page 9]]

            Subsequently, the Washington legislature enacted chapter 96 which is identical to the 1971 Oregon statute.  See AGO 1976 No. 14 [[to Paul Klasen, Prosecuting Attorney of Grant County, on July 29, 1976]]at 2-3.  InState v. Barklind, 87 Wn.2d 814, 557 P.2d 314 (1976), the Washington Supreme Court upheld a court order requiring repayment of counsel fees under the conditions specified inFuller4/ and, in dicta, approved chapter 96.  87 Wn.2d at 818.  It appears, therefore, that in enacting chapter 96 the legislature was seeking to adopt a scheme for assessing the costs of prosecution which would satisfy state and federal constitutional requirements.  Since chapter 96 embodies safeguards not contained in RCW 10.46.190, a statute governing the same subject matter, we surmise that the legislature intended to supersede the previous enactment.

            For these reasons, we conclude that RCW 10.01.160-10.01.180 impliedly repealed RCW 10.46.190.  Accordingly, §§ 1 of chapters 53 and 248, Laws of 1977, 1st Ex. Sess., are not applicable to district courts.5/

            (c)Traffic Proceedings

            The trial of traffic cases in district courts is governed by Justice Court Traffic Rule (JTR) T3.03 which provides that  [[Orig. Op. Page 10]] such proceedings are controlled by the Justice Court Criminal Rules.  However, we can find no justice court rule which covers jury fees or related matters in criminal trials.  Accordingly, by virtue of RCW 3.66.010, we must refer to all general laws not inconsistent with the 1961 Justice Court Act.  See AGO 63-64 No. 15,supra.  Since traffic offenses are criminal matters (see JTR T1.04; RCW 46.61.010; RCW 46.20.336), the analysis set forth in the preceding section is applicable here as well.  We conclude, therefore, that RCW 10.01.160 et seq., and not chapters 53 and 248, Laws of 1977, 1st Ex. Sess., govern recovery of costs, including jury fees, from defendants in district court traffic proceedings.

            Question (2):

            Your second question is:

            "Is the jury fee provided for by RCW 12.12.030, as amended, to be distributed to the jurors or paid to the county?"

            This question arises because RCW 12.12.030 was amended in different ways by §§ 2 of chapters 53 and 248, supra.  Quoted again for ease of reference, § 2, chapter 53 reads as follows:

            "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))persons having the qualifications of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number ((,)):  PROVIDED,That the party demanding the jury shall first pay to the justice the sum of ((six)) twenty-five dollars, which shall be paid over by the justice to the ((jury before they are discharged)) county, and said  [[Orig. Op. Page 11]] amount shall be taxed as costs against the losing party."

            As amended by § 2, chapter 248, RCW 12.12.030 reads as follows:

            "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))persons having the qualifications of jurors in the superior court of the same county, unless the parties shall agree upon a lesser number ((,)):  PROVIDED,That the party demanding the jury shall first pay to the justice the sum of ((six)) twenty-five 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."

            The rule for construing conflicting amendments such as these is contained in RCW 1.12.025 which provides in part as follows:

            "If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each amendment without reference to the others, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control: . . ."

            Sections 2 of chapters 53 and 248 amended the same statute during the same legislative session and neither referred to the other amendment.  Thus, each act is to be given effect to the extent the amendments do not conflict in purpose.  Here, the two amendments made by chapter 53 and chapter 248 are identical with one exception.  That exception is contained in chapter 53 which replaces the phrase "to the jury before they are discharged" with "to the county."  This amendment does not conflict in purpose with any amendment made by chapter 248 and, in  [[Orig. Op. Page 12]] accordance with RCW 1.12.025, it must be given effect.  Thus, the $25.00 jury fee provided for in RCW 12.12.030, as amended (and made applicable to district courts by JCR 38, supra), is to be paid to the county.6/

            Question (3):

            Your third question is as follows:

            "When a party in a district court proceeding is liable for a jury fee, is that party to be charged all expenses of providing a jury or only the $25.00 statutory jury fee?"

            (a)Civil Proceedings

            As we concluded in our answer to your first question, procedural matters concerning jury trials in district court civil proceedings are governed by RCW 12.12.030 ‑ 12.12.100.  The only reference in these statutes to jury fees or expenses is contained in RCW 12.12.030 which, as amended, imposes only a $25.00 fee upon the losing party.  At pages 2 and 3 of our letter dated May 9, 1968, to the Administrator for the Courts,supra, we noted the fundamental principal that a public official can charge only such fees as are expressly provided by law and determined that a court may not demand that the losing party pay the full cost of compensating the jurors if that amount is in excess of the statutory jury fee.  Because no legislation has since been enacted to change this conclusion with respect to district court civil proceedings, we believe that, insofar as expenses of the jury trial are concerned, a party may be charged only the $25.00 statutory jury fee.

            (b)Criminal and Traffic Proceedings

            As we also concluded in responding to your first question, the imposition of costs on defendants in criminal and traffic cases  [[Orig. Op. Page 13]] is now governed by chapter 96, Laws of 1975-76, 2nd Ex. Sess.  Section 1 of that act, codified as RCW 10.01.160, is repeated for ease of reference:

            "(1) The court may require a convicted defendant to pay costs.

            "(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant.  They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

            "(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them.  In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

            "(4) A defendant who had been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof.  If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170."

            As discussed in AGO 1976 No. 14 (copy enclosed), costs chargeable to a convicted defendant under this statute are limited to expenses specially incurred in prosecuting him.  Moreover, the statute expressly provides that the defendant cannot be charged for expenses inherent in providing a constitutionally guaranteed jury trial.  When a jury trial is required in state court criminal proceedings is now a matter of  [[Orig. Op. Page 14]] federal constitutional law.  See, State ex rel. O'Brien v. Towne, 64 Wn.2d 581, 382 P.2d 818 (1964).  InDuncan v. Louisiana, 391 U.S. 145, 20 L.Ed. 2d 491, 88 S.Ct. 1444 (1968), the court held that the Fourteenth Amendment to the United States Constitution guarantees to defendants in state criminal trials the right to a jury trial provided in the Sixth Amendment to the constitution.  That decision further established that there is no right to a jury trial in the prosecution of a "petty offense."  Duncan v. Louisiana,supra, at 159-162; accord, George v. Day, 69 Wn.2d 836, 840-842, 420 P.2d 677 (1966).

            The line of demarcation between serious and petty offenses for purposes of the constitutional right to a jury trial is determined by the maximum penalty which can be opposed upon the defendant.  The usual criminal penalties are fine and imprisonment.  With respect to imprisonment, the U.S. Supreme Court had drawn the line at six months:  those crimes carrying a sentence of six months or less are petty offenses.  Frank v. United States, 395 U.S. 147, 149-150, 23 L.Ed. 2d 162, 89 S.Ct. 1503 (1969);Baldwin v. New York, 399 U.S. 66, 69, 26 L.Ed. 2d 437, 90 S.Ct. 1886 (1970).  With respect to fines, inMuniz v. Hoffman, 422 U.S. 454, 45 L.Ed. 2d 319, 95 S.Ct. 2178 (1975), the court declined to fix a maximum fine of $500.00 as the invariable criteria of an offense triable without a jury.  However, in the recent case ofUnited States v. Hamdan, 552 F.2d 276 (9th Cir. 1977), the court considered the $500.00 figure to be the measure of a serious offense for purposes of the right to a jury trial.  Accord,Douglass v. First National Realty Corp., 543 F.2d 894 (D.C.Cir. 1976).  In both of these cases the applicable court of appeals noted that "nowhere else in federal law or practice are we able to detect any other bench-mark of seriousness or pettiness in monetary criminal penalties."  552 F.2d at 280; 543 F.2d at 902.

            Therefore, in answer to part (b) of your third question we conclude that defendants in criminal and traffic cases tried by a jury in district courts may be charged the actual expenses of providing the jury ‑ but only if (1) the expenses are specially incurred in prosecuting the defendant and (2) the defendant was charged with an offense punishable by imprisonment of six months or less, or a fine of $500.00 or less, or both.