EFFECT OF APPROPRIATION ON STATUTORY FUNCTIONS OF PROSECUTING ATTORNEY

AGO 1986 No. 1 - Jan 16 1986

Attorney General Ken Eikenberry

COUNTIES ‑- BUDGET ORDINANCE ‑- HOME RULE COUNTY ‑- COUNTY PROSECUTING ATTORNEY ‑- EFFECT OF APPROPRIATION ON STATUTORY FUNCTIONS OF PROSECUTING ATTORNEY

A legislative authority of a home rule county may condition its appropriation to the prosecuting attorney's office on a particular allocation of resources within the prosecuting attorney's office but may not, by its appropriation, effectively prevent the prosecuting attorney from performing statutory duties.

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January 16, 1986

Honorable David S. McEachran
Whatcom County Prosecuting Attorney
Whatcom County Courthouse
311 Grand Avenue
Bellingham, Washington 98225-4079

Cite as: AGO 1986 No. 1

Dear Sir:

By letter dated December 17, 1985, you asked for our opinion concerning several questions. For reasons discussed below, we decline to address several of the issues you have raised. We paraphrase the remaining questions as follows:

1. May the legislative authority of a home rule county condition its appropriation to the prosecuting attorney's office on a particular allocation of resources within the prosecuting attorney's office?

2. In the absence of a severability clause, does the invalidity of any portion of a county budget ordinance render the entire ordinance invalid?

We answer your first question in the qualified affirmative and your second question in the manner indicated in the analysis below.

FACTUAL BACKGROUND

By way of factual background, you have informed us that on December 12, 1985, the Whatcom County Council enacted its annual [[Orig. Op. Page 2]] budget ordinance for 1986. (Whatcom County is a home rule county governed by a charter adopted in 1978.) In addition to the usual contents of a budget ordinance‑-an itemization of the amounts appropriated to the various county departments for 1986‑-the county council included a list of "provisions restricting expenditures" beginning with the following language:

"Pursuant to Section 6.60 of the Whatcom County Home Rule Charter, the following provisions restricting the expenditure of certain appropriations are enacted for the 1986 fiscal year. These provisions are an integral part of the official budget of Whatcom County and shall be published therewith. Appropriation authority is given only for expenditures made in conformity with these provisions and other County ordinances and legislative acts. Expenditures inconsistent therewith are unauthorized, improper, and unlawful."

There follows in the ordinance a variety of provisions, but you have referred only the following six provisions to us with questions about them:

"(Q) The County Executive shall designate either the Budget Director, Alcoholism Services Coordinator, Developmental Disabilities Coordinator, or the Mental Health/Drug Abuse Coordinator as the Whatcom County Human Services Coordinator, whose duties shall be to foster better coordination and cost-effectiveness in the delivery of human services programs by the County, and additionally, to promote cooperative endeavors with other public and private agencies. The Human Services Coordinator shall assess the human service needs of the community and recommend how best to target the county's limited funds that are available for human services programs. Should the County Executive fail to designate a Human Services Coordinator, then the Mental Health/Drug Abuse Coordinator shall serve in that capacity.

"(R) At least 20 beds in the Jail shall be made available for housing federal prisoners by means of long term contract with the federal government. Appropriation authority for the two newest correctional officers will lapse unless this policy is completely implemented by March 1, 1986.

[[Orig. Op. Page 3]]

"(S) The Public Works Department shall, in conformance with applicable ordinances governing personal services contracts, contract for a comprehensive inventory and analysis of the County's present and future facility and space needs. At least preliminary results of the study shall be presented to the Council and Executive by October 1, 1986. The request for proposals or bids issued for this project shall first be approved by the Council and Executive. Expenditures for this purpose may be made out of either the Physical Plant and Facilities Capital Fund or the Real Estate Excise Tax Capital Improvement Fund or both.

"(T) The Public Works Department shall contract with Western Washington University or other appropriate contractor for a market study on the relationships between Lummi Island ferry rates, ridership, and revenue. The study shall also provide recommendations on a rate structure or structures that will maintain the system as seventy-five percent (75%) self-supporting.

". . .

"(W) The Council intends that an equivalent of at least two full-time deputies in the Prosecutor's office shall be devoted to the civil functions of that office. Expenditure authority for deputy positions is conditioned upon compliance with this provision.

"(X) An additional $5,000 is provided in the Extra Help categories for each of the following departments: District Court, Prosecuting Attorney, and Public Defender. These funds are intended to provide relief time during the first quarter of 1986 to free up key personnel in these offices for coordinated planning sessions to improve management and efficiency in the criminal justice system, and are provided only on the condition that this use be made of them."

The budget ordinance, including the provisions above, was originally enacted by the Whatcom County Council on November 25, 1985. On December 5th, the county executive vetoed the ordinance, but her veto was overridden on December 12th pursuant to § 2.30 of the Whatcom County Charter.

[[Orig. Op. Page 4]]

You have referred to us several possible problems concerning the validity of the six provisions set forth above.

PRELIMINARY NOTE ON INTERPRETATION

OF LOCAL CHARTERS AND ORDINANCES

Before we undertake an analysis of your questions, we should note that it is our consistent policy and practice to avoid the detailed interpretation of local charter and ordinance provisions unless it is absolutely necessary for us to interpret a local charter or ordinance in the exercise of our constitutional or statutory functions. Because several of the provisions you have mentioned relate purely to issues of local law (interpreting local ordinances in light of the county charter, or harmonizing local ordinances with one another) we decline to address those issues in a formal opinion.

The remaining questions do present issues of state and not purely local law, while they do require some reference to the Whatcom County Charter. We have rephrased your questions to emphasize the matters of statewide interest contained in them.1/ While we have made occasional reference to the county charter, it is primarily for illustration or clarification purposes, and we leave interpretation of county charter provisions and ordinances to your office.

ANALYSIS

Question (1):

May the legislative authority of a home rule county condition its appropriation to the prosecuting attorney's office on a particular allocation of resources within the prosecuting attorney's office?

As noted earlier, Whatcom County is a home rule county, having adopted a charter form of government by election in 1978. Home rule counties are authorized and governed by Article XI, § 4 of the State Constitution, as amended by Amendment 21, which was approved by the voters in 1948. That constitutional provision provides in part as follows:

[[Orig. Op. Page 5]]

". . .

"After the adoption of such charter, such county shall continue to have all the rights, powers, privileges and benefits then possessed or thereafter conferred by general law. All the powers, authority and duties granted to and imposed on county officers by general law, except the prosecuting attorney, the county superintendent of schools, the judges of the superior court and the justices of the peace, shall be vested in the legislative authority of the county unless expressly vested in specific officers by the charter. The legislative authority may by resolution delegate any of its executive or administrative powers, authority or duties not expressly vested in specific officers by the charter, to any county officer or officers or county employee or employees.

". . ." [Emphasis added.]

Interpreting this provision, our Supreme Court has held that the legislative body of a charter county has as broad legislative powers as the state, except when restricted by enactments of the state legislature. King County Council v. Public Disclosure Commission, 93 Wn.2d 559, 611 P.2d 1227 (1980).

Given the provisions just cited, it seems clear that the legislative authority of a home rule county has wide discretion in the structuring of its activities, including its adoption of an annual budget. The budget thus can be in virtually any form acceptable to the county council, so long as it meets two conditions: (1) consistency with any general state statutes governing the adoption of budgets by counties, and (2) consistency with the county charter itself.

Counties are required by chapter 36.40 RCW to adopt annual budgets. We have reviewed the budget ordinance you submitted with your question and have looked over the provisions of chapter 36.40 RCW and can see no obvious irregularities in the form of the Whatcom County budget ordinance for 1986 or in the procedures employed for its adoption. Nor have you brought any facts to our attention which would indicate that the budget is not in compliance with chapter 36.40 RCW or any related statutes governing the [[Orig. Op. Page 6]] adoption of county budgets. As noted earlier, we decline to address the question of consistency with the county charter.2/

Having discussed the general issues regarding the statutory authority of a county legislative body, we turn to specific issues regarding possible conflicts between that authority and the statutory powers and functions of prosecuting attorneys. In conferring authority upon counties to frame home rule charters, the State Constitution (Article XI, § 4) specifically excepts the office of the prosecuting attorney from those powers which can be vested in the legislative authority or assigned to other officers by the county charter. In effect, counties lack the power to alter or diminish the authority of the prosecuting attorney through the home rule charter process. The prosecuting attorney in a home rule county thus enjoys the same statutory and constitutional authority as prosecuting attorneys in noncharter counties. Indeed, the Whatcom County charter recognizes this fact, because it provides that the prosecuting attorney in Whatcom County ". . . shall have all the powers, authorities and duties granted to and imposed upon a Prosecuting Attorney by State law." Whatcom County Charter § 3.55.

The powers and duties of a prosecuting attorney are primarily codified in chapter 36.27 RCW. Speaking broadly, a prosecuting attorney's duties can be divided into two categories: (1) the prosecution of crimes and the enforcement of the state's criminal laws, and (2) the duty to advise and represent county officers and certain other local public officials (such as school district officers) in civil matters. See, generally RCW 36.27.020. A prosecuting attorney may appoint one or more deputies or legal interns to assist him or her in the performance of the duties and obligations of the office. RCW 36.27.040 and RCW 36.27.045.

[[Orig. Op. Page 7]]

Because of the criminal enforcement duties of the office, the office of the prosecuting attorney has been held to be quasi-judicial in nature. Mitchelle v. Steele, 39 Wn.2d 473, 236 P.2d 349 (1951); State v. Montgomery, 56 Wash. 443, 105 Pac. 1035 (1909). Furthermore, it has been held that a prosecuting attorney for some purposes is a state officer and not, strictly speaking, a county officer. See,Thurston County v. Gorton, 85 Wn.2d 133, 530 P.2d 309 (1975). Cf.State v. Agren, 32 Wn. App. 827, 650 P.2d 238 (1982).

In light of these special considerations, it is clear that the statutory functions of the prosecuting attorney are matters of state law and are not subject to interference or modification by act of a county legislative authority. It is equally true that the county is primarily responsible for providing funding for the operations of the prosecuting attorney, and that the policy decisions regarding the allocation of county resources among the various activities funded by county government are left both by statute and by the charter to the county council. Thus there is a delicate balance between the budget power of the county legislative authority and the independent discretion conferred by law on a prosecuting attorney. Each office must exercise its discretion in such a way as to leave room for the powers granted by law to the other, and neither can exercise its power so as to eliminate the other's prerogatives.

The existence of checks and balances and the need to make delicate accommodations is discussed extensively in the Supreme Court case ofIn re Juvenile Director, 87 Wn.2d 232, 552 P.2d 163 (1976).3/ That case arose from a quarrel between the Lincoln County commissioners and the superior court judge assigned to that county as to the appropriate salary level of the Lincoln County Director of Juvenile Services. Although a statute conferred upon the county commissioners the authority to fix the compensation of probation counselors, the superior court judge contended that the compensation set by the Lincoln County commissioners was so insufficient as to frustrate the exercise of judicial authority. On appeal to the Supreme Court, the Court issued an opinion which reviews the theory of checks and balances underlying the American system of government.

[[ original page 8]]

While the Supreme Court recognized that there are cases in which a court could exercise inherent power to override a legislative decision which was held to have entirely frustrated an essential function at another office, the Court established a very strict standard before such an overriding could occur. Finding that the superior court in the case before it had not met the appropriate high standard of proof, the Supreme Court upheld the authority of the county commissioners to determine the salary of the county juvenile director. See, In re Juvenile Director, 87 Wn.2d at 251-252.

The reasoning of the State Supreme Court might be held applicable if, for instance, the county council refused to provide funding for criminal law enforcement or for some other essential duty conferred by law on the prosecuting attorney. If applicable, to overcome the presumption of legislative control over such fiscal matters, the prosecuting attorney would have to meet a high standard of proof.

It does not appear to us that either of the provisions concerning the prosecuting attorney that you included in those referred to us is likely to meet the requisite standard of proof. Provision (X) of the budget ordinance in question provides an additional $5,000 each to the district court, the prosecuting attorney and the public defender, and notes that “. . . [t]hese funds are intended to provide relief time during the first quarter of 1986 to free up key personnel in these offices for coordinated planning sessions to improve management and efficiency in the criminal justice system an are provided only on the condition that this use be made of them.” We can find nothing in this language which could conceivably frustrate the statutory functions of the prosecuting attorney. In effect, the county council is offering $5,000 to each of three agencies, either to be used for the purpose outlined in the provision or not to be used at all, depending upon

[[ original page 9]]

the discretionary decisions of the prosecuting attorney, the public defender and the district court.⁵

Provision (W) is more problematical than provision (X). Provision (W) reads as follows:

“The Council intends that. an equivalent of at least two full-time deputies in the Prosecutor’s office shall be devoted to the civil functions of that office. Expenditure authority for deputy positions is conditioned upon compliance with this provision.”

We note initially that the effect of the provision is not to require that two or more deputies be assigned exclusively to civil duties, because the provision itself speaks of “. . . the equivalent of two full-time deputies . . .” Because we do not know how your office is organized, how large your staff is or what resources are left for criminal and other non-civil work, we cannot express an opinion whether compliance with provision (W) might so wholly frustrate the performance of the prosecuting attorney’s functions as to invalidate provision (W) on the basis of the reasoning In re Juvenile Director. To meet that high standard, a prosecutor would-have to show that the provision in context of the entire budget would leave the prosecuting attorney with little or no staff for criminal prosecutions.

The recent case of State v. Howard, __ Wn.2d __, __ P.2d __ (Supreme Court No. 51495-0, decided December 26, 1985) indicates special caution is indicated in applying the In re Juvenile Director analysis to a prosecutor’s office. In that case, the Supreme Court noted with apparent approval that prosecuting attorneys must and should consider resource limitations in establishing priorities for criminal prosecution work.⁶ The clear implication of Howard is that prosecutors are not necessarily entitled to sufficient funds to prosecute all cases in which there is probable cause to believe a crime has been committed.

[[ original page 10]]

Question (2):

In the absence of a severability clause, does the invalidity of any portion of a county budget ordinance render the entire ordinance invalid?

Your final question asks, assuming one or more of the provisions under discussion is invalid, whether that would serve to invalidate the entire budget ordinance, since the ordinance does not contain a “severability” clause. A severability clause, often included in statutes and ordinances, provides that if any provision of a law should be held invalid, the remaining provisions should nevertheless be left standing.

A legislative act is not invalid in its entirety merely because one or more of its provisions is invalid unless the invalid provisions are unseverable and it cannot reasonably be believed that the legislative body would have passed the one without the other, or unless the elimination of the invalid part would render the remainder of the act incapable of accomplishing legislative purposes. See State v. Anderson, 81 Wn.2d 234, 501 P.2d 184 (1972) and Boeing Co. v. State, 74 Wn.2d 82, 442 P.2d 970 (1968).

The Anderson case discusses both the standards adopted by courts in deciding whether provisions are severable and the effect of severability clauses in the legislation itself. As to the first question, the Anderson court stated:⁷

“. . . The constitutionality of the remaining portion of the statute is subject to alternative tests, the first. dependent upon whether the legislature would have passed the remaining portion of the statute without the unconstitutional portion, or, alternatively, whether the elimination of the unconstitutional portion so destroys the act as to render it incapable of accomplishing the legislative purposes. . . .” Anderson, 81 Wn.2d at 236.

The next portion of the opinion deals with the effect of severability clauses in legislation, holding that they are of assistance to the court in determining the legislative intent--that is, answering he question whether the legislature would have passed the remainder of the statute without the invalid

[[ original page 11]]

portion--but that the presence or absence of a severability clause does not in and of itself determine whether the provisions are severable. Anderson, 81 Wn.2d at 236-237.

As noted earlier, we have not found any provisions of the budget ordinance to be clearly invalid, although we have referred to possible arguments about the invalidity of one provision. If provisions were held invalid, one would have to decide whether the invalidity extended only to those provisions, or to the entire budget ordinance.

Applying the standards laid down in Anderson, we find it unlikely that the county council would have passed no budget at all were it not for the inclusion of the provisions in question. Thus, despite the absence of a severability clause in the budget ordinance itself, we think it unlikely that the invalidity of one or more provisions would affect the validity of the entire ordinance. However, these are questions of legislative intent which in the final analysis would have to be addressed by a court if it found any provisions to be invalid.

We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY

Attorney General

//s//

JAMES K. PHARRIS

Senior Assistant Attorney General

FOOTNOTES:

^l The fact that your own statutory duties are involved in the questions is a significant matter of interest to all counties.

² On the subject of compliance with chapter 36.40 RCW, you have asked whether any of the provisions in question might violate state law as interpreted by Miller v. Pacific County, 9 Wn. App. 177, 509 P.2d 377 (1973). In that case, the Court of Appeals invalidated an attempt by the Pacific County commissioners, acting without formally amending the budget, to withdraw financial support for a separate prosecutor’s office outside the county courthouse. Because the Pacific County commissioners had not followed the statutory procedure for proper budget amendment, a situation not. present here, the Miller reasoning seems inapplicable to the present case.

³ The reasoning of this case has not been extended to any areas of the law beyond the balance between legislative and judicial authority, but its reasoning could apply to the case at hand.

⁴ We will not separately discuss the application of this provision to the district court or the public defender. Those offices, which are also judicial or quasi-judicial in nature, would be subject to precisely the same analysis as we have applied to the prosecuting attorney.

⁵ Indeed, it would appear to have been the county council’s intent to make sure that the three offices in question could engage in coordinated planning without suffering a loss of key personnel time from other, perhaps more basic statutory functions.

⁶ The Court derived this point from the amicus curiae brief of the Washington Association of Prosecuting Attorneys.

⁷ The cases cited deal, of course, with the constitutionality of statutes, but the same principles apply to the invalidity of local ordinances.