Eligibility Of County Prosecuting Attorneys To Be Appointed County Coroner After January 1, 2025

CORONER — COUNTIES — APPOINTMENT — PROSECUTING ATTORNEY —STATUTORY AUTHORITY — Eligibility Of County Prosecuting Attorneys To Be Appointed County Coroner After January 1, 2025

RCW 36.16.030 currently requires that county prosecutors in counties with populations of less than 40,000 perform the services of coroner, but effective January 1, 2025, that statute will no longer so require. After January 1, 2025, general statutory prohibitions on coroners practicing law will preclude county prosecuting attorneys from acting as both coroner and prosecutor.

August 22, 2024

Dear Prosecutors Vira, Hunt, and Slack:

           By letter previously acknowledged, you have requested our opinion on the following question:

May a county legislative authority for a county with a population of less than 40,000 appoint the prosecuting attorney to perform the services of the county coroner after January 1, 2025, the effective date of the 2021 amendments to RCW 36.16.030?

BRIEF ANSWER

           No. As of January 1, 2025, the prosecuting attorney in a county with a population of less than 40,000 will no longer be statutorily required to act as coroner. In the absence of that statutory requirement, statutory prohibitions on coroners practicing law, contained in RCW 36.24.170 and RCW 2.48.200, would preclude the prosecuting attorney from acting as both coroner and

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prosecutor after January 1, 2025. Our conclusion is further supported by the legislative history of recent statutory amendments, which indicates that the legislature intended to separate roles of prosecuting attorney and coroner.

BACKGROUND

           Your request focuses on the legislature’s 2021 amendments to RCW 36.16.030, a statute enumerating the elective county officers in Washington. The 2021 amendments removed the requirement that the prosecuting attorney act as coroner in counties with populations of less than 40,000 people. Although we believe that two other statutes, RCW 36.24.170 and RCW 2.48.200, resolve your question, we provide a brief overview of the 2021 amendments for context. Laws of 2021, ch. 127, §§ 4, 9.

           Since approximately 1925, the prosecuting attorney has been ex officio^[1] coroner in counties with populations of less than 40,000 people. RCW 36.16.030; Laws of 1925, 1st Ex. Sess, ch. 148, § 2. RCW 36.16.030 currently states:

[I]n every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff, and a county treasurer, except that in each county with a population of less than forty thousand no coroner shall be elected and the prosecuting attorney shall be ex officio coroner.

(Emphasis added.)

           In 2021, the legislature passed Engrossed Substitute House Bill 1326, 67th Leg., Reg. Sess. (Wash. 2021), which adopted a variety of provisions relating to coroners and medical examiners. Laws of 2021, ch. 127. Of particular relevance here, the legislature amended RCW 36.16.030 to provide an expiration date for the current requirements relating to county coroners and to provide new requirements effective January 1, 2025. Laws of 2021, ch. 127, §§ 4, 5, 9, 10. Beginning January 1, 2025, in counties with populations of less than 40,000, the coroner will either be elected or be appointed by the county legislative authority. Laws of 2021, ch. 127, §§ 4, 9. Specifically, effective January 1, 2025, RCW 36.16.030, in relevant part, will read:

[I]n every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff, and a county treasurer, except that in each county with a population of less than forty thousand the county legislative authority may determine that no coroner shall be elected and instead appoint a coroner.

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Laws of 2021, ch. 127, §§ 4, 9 (emphasis added). RCW 36.16.030 does not address whom the county may appoint as county coroner.

ANALYSIS

           You asked whether a county legislative authority in a county with a population less than 40,000 may appoint the prosecuting attorney to perform the services of the county coroner after January 1, 2025. Your question calls for our construction of RCW 36.16.030 and the statutes governing county coroners, found in RCW 36.24. Based on RCW 36.16.030 and RCW 36.24.170, we conclude that in a county with a population of less than 40,000, a prosecuting attorney may not act as coroner after January 1, 2025. In the absence of the statutory requirement for the prosecuting attorney to act as coroner, statutory prohibitions on coroners practicing law would preclude the prosecuting attorney from performing both roles. Our conclusion is further supported by the legislative history of the 2021 amendments.

           We begin the inquiry by considering what the legislature intended when it amended RCW 36.16.030 to remove the requirement that prosecuting attorneys act as ex officio coroners in counties with populations of less than 40,000. The goal of statutory interpretation is to determine and give effect to the legislature’s intent. Wash. State Ass’n of Cntys. v. State, 199 Wn.2d 1, 10, 502 P.3d 825 (2022). To do so, we start with the plain language of the text, considering the context of the statutes or provisions at issue, amendments to the provisions, related provisions, and the overall statutory scheme. State ex rel. Banks v. Drummond, 187 Wn.2d 157, 170, 385 P.3d 769 (2016). 

           RCW 36.16.030 (effective January 1, 2025) does not address whether the county legislative authority in a county with a population of less than 40,000 may appoint the prosecuting attorney to continue to perform the duties of coroner. Because the plain language of that statute does not address your question, we consider related statutes to help resolve the question. See Drummond, 187 Wn.2d at 170.

           RCW 36.24.170^[2] prohibits coroners from practicing law. RCW 36.24.170 provides: “The coroner shall not appear or practice as attorney in any court, except in defense of himself or herself or his or her deputies.” RCW 2.48.200 also prohibits coroners from practicing law, stating that “[n]o person shall practice law who holds a commission as judge in any court of record, or as sheriff or coroner . . .”. We presume that the legislature does not intend to create inconsistent statutes, and so we seek to interpret statutes harmoniously. Associated Gen. Contractors of Wash. v. State, 544 P.3d 486, 496 (Wash. 2024). Accordingly, we strive to interpret RCW 36.16.030 in harmony with RCW 36.24.170 and RCW 2.48.200.

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           In 1976, our office opined that RCW 36.24.170 does not prohibit the prosecuting attorney in a county with a population of less than 40,000^[3] from performing the duties of coroner. AGLO 1976 No. 30. In reaching our conclusion, we relied on RCW 36.16.030’s requirement that the prosecuting attorney perform the coroner’s duties in a county with a population of less than 40,000. AGLO 1976 No. 30, at 2-3. Under RCW 36.16.030, one of the prosecuting attorney’s statutory duties was to act as coroner. AGLO 1976 No. 30, at 2-3. But, as previously explained, the legislature has since amended RCW 36.16.030 (effective January 1, 2025) to remove the requirement that prosecuting attorneys in counties with less than 40,000 people act as coroner. Laws of 2021, ch. 127, §§ 4, 9. As a result, because the basis of our earlier opinion has changed, our interpretation of RCW 36.24.170 has also changed.

           Interpreting RCW 36.16.030 (effective January 1, 2025) to allow a county to appoint a prosecuting attorney to act as coroner would conflict with the statutory prohibitions on a coroner practicing law. Without the express statutory requirement for the prosecuting attorney to act as coroner, the plain language of RCW 36.24.170 and RCW 2.48.200 would preclude the prosecuting attorney from acting as both prosecuting attorney and coroner. SeeState v. Twitchell, 61 Wn.2d 403, 406-07, 378 P.2d 444 (1963) (noting that a deputy prosecutor would be disqualified from practicing law if they accepted a commission as deputy sheriff under RCW 36.28.110 and RCW 2.48.200).

           Our conclusion is also supported by the legislative history behind the 2021 amendments. The sequential versions of the bill, amendments, and testimony demonstrate the legislature’s intent to separate the roles of prosecuting attorney and coroner, and to withdraw its authorization for the prosecuting attorney to perform the coroner’s duties. The original bill proposed that all counties elect their coroner, which would separate the prosecuting attorney and the coroner. H.B. 1326, 67th Leg., Reg. Sess. (Wash. 2021) (as introduced).^[4] Then, the House passed a substitute bill, which authorized the county legislative authority of counties with populations of less than 40,000 to “determine that no coroner shall be elected and instead appoint a coroner or direct the prosecuting attorney [to] serve as ex-officio coroner.” Engrossed Substitute H.B. 1326, 67th Leg., Reg. Sess. (Wash. 2021). Once in the Senate, Senator Kuderer introduced and the Senate adopted an amendment to “[r]emove[] the option for the prosecuting attorney to serve as ex-officio coroner.”^[5] 1326-S.E AMS HLG S2197.1, https://app.leg.wa.gov/committeeschedules/Home/Document/233341#toolbar=… (Engrossed Substitute H.B. 1326, as amended by the

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Senate). Senator Kuderer testified that “one of the reasons that the committee striking amendment was adopted, because that amendment removes the ability of a county to appoint a prosecuting attorney to act in the capacity of a coroner and that is because there is a direct conflict of interest in that.” Sen. Floor Deb. on Substitute H.B. 1326, 67th Leg., Reg. Sess. (Wash. Apr. 3, 2021), at 32:05, video recording by TVW, Washington State’s Public Affairs Network, https://www.tvw.org/watch/?clientID=9375922947&eventID=2021041040. Although “[o]ne legislator’s comments from the floor ordinarily are not determinative of legislative intent,” courts presume that legislators understand the meaning of the amendments that they propose. Nelson v. P.S.C., Inc., 2 Wn.3d 227, 241, 535 P.3d 418 (2023) (citing Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). Interpreting RCW 36.16.030 as allowing a county to appoint a prosecuting attorney to act as coroner would fundamentally frustrate the legislature’s intent as expressed during the legislative process, and such an approach would be contrary to our goal of advancing the legislature’s intent. See Nelson, 2 Wn.3d at 237-39 (rejecting interpretation that would frustrate the legislature’s intent).

           Your request mentions the doctrine of incompatible offices. The common-law doctrine of incompatible offices prohibits someone from simultaneously holding two incompatible offices. AGO 2016 No. 7, at 3. “Offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both.” Kennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957). Importantly, the doctrine applies “in the absence of specific statutory provisions governing the positions in question.” AGLO 1973 No. 90, at 3. Here, both RCW 36.24.170 and RCW 2.48.200 prohibit a coroner from practicing law. Therefore, we need not apply the common law doctrine of incompatible offices to answer your question.

           Your request could be interpreted as asking whether a county has the authority to assign substantive duties to the prosecuting attorney in addition to their statutory duties, or to require the prosecuting attorney to exercise the powers and perform the duties of both the prosecuting attorney and the county coroner. The Washington Constitution delegates to the legislature the authority to prescribe the duties of prosecuting attorneys and to require certain officers to “exercise the powers and perform the duties of two or more officers.” Const. art. XI, § 5. Although your request could potentially implicate issues related to article XI, section 5 of the Washington Constitution, we do not believe it is necessary to address them because we resolve your question on statutory grounds. Like courts, we generally avoid reaching constitutional issues where the issues can be resolved on other grounds. Tunstall ex rel. Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000). And here, we are able to resolve the inquiry based on statutory interpretation, and therefore do not reach any potential constitutional issues.

           We want to emphasize that Attorney General Opinions answer broad legal questions and are not intended to resolve any particular case. This opinion expresses no view on what the remedy should be, if any, if the principles discussed here were not followed in a particular case. Such issues are beyond the scope of this opinion and might turn on a variety of facts specific to the case.

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           In conclusion, RCW 36.24.170 and RCW 2.48.200 will prohibit a prosecuting attorney from performing the services of the county coroner when the 2021 amendments to RCW 36.16.030 go into effect on January 1, 2025. 

           We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

KIERA MILLER

  Assistant Attorney General

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