DRIVER EDUCATION ACT - MOTOR VEHICLES - DISPOSITION OF PENALTY ASSESSMENT PROCEEDS

AGO 1970 No. 12 - Jun 9 1970

Attorney General Slade Gorton

DRIVER EDUCATION ACT - MOTOR VEHICLES - DISPOSITION OF PENALTY ASSESSMENT PROCEEDS

(2) All other traffic safety education penalty assessment proceeds i.e., those collected because of a violation of a county or city ordinance, by either a justice court or by a municipal police court, are to be transmitted to the respective county or city treasurers, and by them to the state treasurer for direct placement in the traffic safety education account of the general fund in accordance with RCW 46.81.050, as reenacted by § 3, chapter 9, Laws of 1970.

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June 9, 1970

Honorable Norwood Cunningham
State Representative, 30th District
750 Alvord Avenue
Kent, Washington 98031

Cite as: AGO 1970 No. 12

Dear Sir:

This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:

What disposition is currently to be made of the proceeds of the penalty assessment for traffic safety education which is levied and collected under the provisions of RCW 46.81.030?

We answer this question in the manner set forth in the following analysis

[[Orig. Op. Page 2]]

ANALYSIS

Prior to the 1969 legislative session, RCW 46.81.030, codifying § 4, chapter 39, Laws of 1963, as amended by § 11, chapter 167, Laws of 1967, read as follows:

"There shall be levied and paid into the driver education account of the general fund of the state treasury a penalty assessment in addition to the fine or bail forfeiture on all offenses involving a violation of a state statute or city or county ordinance relating to the operation or use of motor vehicles or the licensing of vehicle operators, except offenses relating to parking of vehicles, in the following amounts:

"(1) Where a fine is imposed, three dollars for each twenty dollars of fine, or fraction thereof.

"(2) If bail is forfeited, three dollars for each twenty dollars of bail, or fraction thereof.

"(3) Where multiple offenses are involved, the penalty assessment shall be based on the total fine or bail forfeited for all offenses.

"Where a fine is suspended, in whole or in part, the penalty assessment shall be levied in accordance with the fine actually imposed."

The manner of transmitting these proceeds from the court which collected them to the state treasury was spelled out in RCW 46.81.050 (codifying § 6, chapter 39, Laws of 1963) as follows:

"The gross proceeds of the penalty assessments provided for in RCW 46.81.030 shall be transmitted to the city or county treasurer, as the case may be, by the court collecting the same, in the manner and at the times that fines and bail forfeitures [[Orig. Op. Page 3]] are transmitted to such treasurers. The city and county treasurers shall transmit to the state treasurer monthly and without deduction the amount of such penalty assessments received, which shall be credited to the driver education account in the general fund."

In chapter 199, Laws of 1969, Ex. Sess. (Substitute Senate Bill No. 569), the legislature amended the first of these two sections by inserting the following paragraph after subsection (3) thereof:

"All fees, fines, forfeitures and penalties collected or assessed by a justice court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended."

Likewise, by means of § 25 of this same 1969 act, the legislature amended RCW 46.81.050,supra, by adding a proviso thereto which reads as follows:

". . . That all fees, fines, forfeitures and penalties collected or assessed by a justice court because of the violation of a state law shall be remitted as provided in chapter 3.62 RCW as now exists or is later amended."

These two 1969 amendatory sections were enacted as part of an act comprised of some sixty-four separate sections most of which were similarly amendatory of other preexisting statutes relating to the disposition of various categories of justice court receipts. However, the act also contained two extremely significant new sections which must be noted and understood in order to gain an appreciation of the meaning and effect of all of the various amendatory provisions.

The first of the new sections is § 1 (now codified as RCW 3.62.015) which reads as follows:

"The state auditor shall establish distribution percentages for use by the county treasurer and state treasurer in remitting justice court income, except for (1) fines, forfeitures, and penalties assessed and [[Orig. Op. Page 4]] collected because of the violation of city and/or county ordinances and (2) fees and costs assessed and collected because of a civil action. A separate percentage shall be established for each city within the county, and for each county, and for the amount that each county shall remit to the state treasurer. These percentages shall be established by reviewing the financial records of each county for the six years prior to January 1, 1969, and determining the average percentage of the net income, from that county's justice courts, that each city, and the county, and the state has received for that period of time. The percentages determined by this procedure shall then be provided to each county treasurer for his use in distributing justice court income. Percentages shall be established for each state fund, now receiving justice court income, by determining the average percentage of justice court income that each fund has received from the total income remitted to the state by the counties for this period of time, except that any state fund receiving less than five hundred dollars each year for the two years 1967 and 1968 shall not have a percentage established for it and the amounts of income in such situation shall be added to the amounts remitted to the state general fund for the purpose of calculating average distribution percentages.

"The state auditor, with the assistance of the administrator for the courts, shall review the distribution percentages annually. This review shall be based upon the annual percentages of types of violations, in relationship to the total cases processed, to determine if the original percentages established by this section are still proportionately accurate within a margin of plus or minus five percent. In the event the annual review indicates that the existing percentages are not proportionately accurate, [[Orig. Op. Page 5]] the state auditor shall revise the distribution percentages to the percentages indicated in the annual review and notify the county and state treasurer within fifteen days in advance of any quarterly distribution of the revised percentages and the statistics supporting the revision."

The second new section applies to those justice court receipts which are to be remitted by the various county treasurers to the state treasurer.1/ This new section, designated as § 4 of the act, provides that:

"Quarterly, the state treasurer, using section 1 of this 1969 amendatory act, shall calculate the appropriate amounts to be transferred to each appropriate state fund."

The complicating factor with respect to the impact of chapter 199, Laws of 1969, Ex. Sess., upon the disposition of the penalty assessment for traffic safety education is that RCW 46.81.030, supra, under which this penalty assessment is imposed and collected, was also amended by another act passed by the 1969 legislature namely, § 3, chapter 218, Laws of 1969, Ex. Sess. This amendment, which made no reference to the amendatory paragraph contained in § 24, chapter 199, Laws of of 1969, Ex. Sess., did, basically, two things: First, it changed the name of the account within the state general fund into which the designated proceeds were to be paid from the "driver" education account to the "traffic safety" education account; and secondly, it increased the amount of the penalty assessment from $3.00 to $5.00 for each $20.00 of fine or bail forfeiture, or fraction thereof.

However, when it met again in its 1970 special session, the legislature recognized the fact that it had enacted two separate amendments to the same statute during the 1969 [[Orig. Op. Page 6]] session, without making any reference in the second amendment to the contents of the first, and, accordingly, it acted to rectify and clarify the resulting situation through the reenactment of RCW 46.81.030, as amended, in § 2, chapter 9, Laws of 1970. In consequence of this 1970 act, the full text of RCW 46.81.030 now reads as follows:

"There shall be levied and paid into the traffic safety education account of the general fund of the state treasury a penalty assessment in addition to the fine or bail forfeiture on all offenses involving a violation of a state statute or city or county ordinance relating to the operation or use of motor vehicles or the licensing of vehicle operators, except offenses relating to parking of vehicles, in the following amounts:

"(1) Where a fine is imposed, five dollars for each twenty dollars of fine, or fraction thereof.

"(2) If bail is forfeited, five dollars for each twenty dollars of bail, or fraction thereof.

"(3) Where multiple offenses are involved, the penalty assessment shall be based on the total fine or bail forfeited for all offenses.

"Where a fine is suspended, in whole or in part, the penalty assessment shall be levied in accordance with the fine actually imposed."

In the meantime, i.e., during the period between the 1969 and 1970 legislative sessions, the state auditor proceeded to establish the distribution percentages, etc., of justice court receipts for which he was given responsibility under [[Orig. Op. Page 7]] § 1, chapter 199, Laws of 1969, Ex. Sess. (RCW 3.62.015),supra. These distribution percentages were set forth and published in State Auditor's Bulletin No. 96, dated September 26, 1969. Included within the justice court receipts to be thus disposed of in accordance with this auditor's bulletin were those traffic safety education penalty assessment proceeds collected by the various justice courts throughout the state because of a violation of astate law relating to

". . . the operation or use of motor vehicles or the licensing of vehicle operators, except offenses relating to parking of vehicles, . . ."

On the other hand, the auditor's bulletin made no attempt to affect the preexisting manner of transmitting and disposing of those traffic safety education assessment proceeds which were imposed and collected in connection with the violation of county or city ordinances relating to this subject.

We believe that this construction of the legislation in question by the state auditor was correct in the first instance and further, that it has in any event been effectively ratified by the legislature pursuant to its enactment of § 2, chapter 9, Laws of 1970, supra, reenacting the provisions of RCW 46.81.030 as previously amended by the two separate 1969 acts above noted. With respect to the second of these two points, see Cammarano v. United States, 358 U.S. 498, 3 L.Ed. 2d 462, 79 S.Ct. 524 (1959), a case arising out of the state of Washington, in which the United States Supreme Court held that the legislative reenactment of an ambiguous act, unchanged with knowledge of the construction placed thereon by the administrative officers having responsibility for its enforcement has the effect of confirming their administrative construction.2/

[[Orig. Op. Page 8]]

As for the correctness of the state auditor's administrative construction of the statutes in question in the first instance, we believe that this construction is fully supported by the rule of construction which was enunciated by the Washington legislature itself through its enactment of § 1, chapter 240, Laws of 1969, Ex. Sess. This statute, now codified as RCW 1.12.025, provides that:

"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: Provided, That if an extraordinary session shall immediately follow any regular session, this rule of construction shall apply to the laws enacted at either or both sessions."

Clearly, it is quite possible to reconcile and give effect to both of the 1969 amendments to RCW 46.81.030 which were noted at the outset of this opinion. The purpose and effect of the first of these two amendments, as contained in § 24, chapter 199, Laws of 1969, Ex. Sess. (Sub. S.B. No. 569) was to [[Orig. Op. Page 9]] make those driver education penalty assessment proceeds, along with other fees, fines, forfeitures and penalties which are collected or assessedby a justice court because of a violation of a state law, subject to remittance and disposition as provided in §§ 1-8 of that act meaning, in accordance with the procedures outlined in the State Auditor's Bulletin No. 96,supra. On the other hand, the purpose and effect of § 3, chapter 218, Laws of 1969, Ex. Sess.,supra, was simply to change the name of the account with the state general fund into which penalty assessment proceeds were to be paid and to increase the amounts of penalty assessments to be imposed for the violation of both state laws and city and county ordinances relating to the operation or use of motor vehicles or the licensing of vehicle operators.

Giving effect to the foregoing, our direct answer to your question, as paraphrased, is as follows:

(1) Those traffic safety education penalty assessment proceeds which are collected by a justice court because of a violation of state law are to be remitted to the county treasurer for disposition in accordance with the formula prescribed by the state auditor under § 1, chapter 199, Laws of 1969, Ex. Sess. (RCW 3.62.015),supra meaning that these proceeds are to be transmitted to the state treasurer by the respective county treasurers and then apportioned to the traffic safety education account in the general fund in accordance with the distribution percentage formula prescribed by the state auditor; accord, §§ 1 and 4, chapter 199, Laws of 1969, Ex. Sess.

[[Orig. Op. Page 10]]

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

*** FOOTNOTES ***

1/See, §§ 2 (amending RCW 3.62.020); 3 (amending RCW 3.62.050); 5 (amending RCW 3.16.110); 6 (amending RCW 3.16.130); 7 (amending RCW 3.16.160); and 8 (amending RCW 3.28.070), with respect to the manner in which the various proceeds of the justice courts are transmitted to the respective county treasurers.

2/Accord, White v. State, 49 Wn.2d 716, 725, 306 P.2d 230 (1957), in which our own state supreme court expressed and applied the following rule of statutory construction:

"When a statute is ambiguous, the construction placed upon it by the officer or department charged with its administration, while not binding on the courts, is entitled to considerable weight in determining the intention of the legislature; and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend the statute, silently acquiesces in the administrative interpretation. This is particularly true when, as here, the section is subsequently (1) considered by the legislature, (2) amended in some other particular, and (3) the administrative construction of the section is not repudiated. State ex rel. Pirak v. Schoettler, 45 Wn.2d 367, 274 P.2d 852. And, see,Paulsell v. Peters, 9 Wn.2d 599, 115 P.2d 708."

3/This section was also amended a second time by the 1969 legislature, through its enactment of § 4, chapter 218, Laws of 1969, Ex. Sess. Like the amendment to RCW 46.81.030, which was contained in § 3 of this "second" 1969 act, this amendment made no reference to the amendatory language which had been added by means of § 25, chapter 199, Laws of 1969, Ex. Sess.,supra. Again, however, the 1970 legislature recognized what had occurred by virtue of its two 1969 acts, and reenacted the provisions of RCW 46.81.050 so as to include both of the separate 1969 amendments thereto.