MUNICIPAL JUDGES - MUNICIPAL COURTS - MUNICIPAL DEPARTMENTS - CITIES -COUNTIES - ELECTIONS - FILLING VACANT MUNICIPAL COURT OR MUNICIPAL DEPARTMENT POSITIONS

The HonorableRalph Munro
Secretary of State
P.O. Box 40232
Olympia, WA 98504-0232

                                                                                                            Cite as:  AGO 1995 No. 9

Dear Secretary Munro:

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

            1.         Will an unexpired term election be required for any vacancy occurring in an existing judicial position in either a municipal court or a municipal department of a district court, in light of the provisions of RCW 3.46.063, 3.46.100, 3.50.055, 3.50.093, and RCW 29.13.010 and 29.21.410?

            2.         How should newly-created positions on such courts be filled initially, and under what circumstances, if any, should an unexpired term election be held for such positions?

                                                               BRIEF ANSWER

            In response to your first question, we conclude that no unexpired term election would be required as to any vacancy occurring in an existing position on a municipal court.  As to municipal departments of the district court, however, we conclude that an unexpired term election would be required in the same manner as for any other district court position.  No additional procedure, or designation of the position on the ballot, would be required by virtue of the position also serving a municipal department.  The judge to serve the municipal department would be selected by the city from among the judges of the district court, including any judge appointed by the county legislative authority to fill the vacancy or any judge who might have already been a member of the court.

            In response to your second question, we conclude that unless the legislation authorizing the new position directs that it be filled at a regular, full term election, it would be filled as a vacancy, in the same manner described in response to your first question.  If the authorizing legislation specifically requires the position to be filled at a regular, full term election, that election would be conducted in the manner more fully described in our answer.

                                                                BACKGROUND

            In order to provide context to your questions, it is helpful to examine the three different municipal court systems authorized by state law, as well as recent legislation affecting the selection of judges.  Laws of 1993, ch. 317 (effective January 1, 1995).  A city may either operate its own municipal court, pursuant to chapter 3.50 or 35.20 RCW (depending upon population), or establish a municipal department in the county district court within which the city lies.  RCW 3.46.[1]

Municipal Courts

            The Legislature has provided for two separate systems of municipal courts, depending upon the population of the city.  Municipal courts are established by law in all cities with populations exceeding four hundred thousand.  RCW 35.20.010(1).  Courts in these larger cities are governed by chapter 35.20 RCW, rather than by the provisions of Title 3 of the RCW upon which we will focus most of our analysis.  At their option, such cities may enter agreements with counties under which the municipal court would be terminated and the city would pay the county the costs associated with prosecution, adjudication, and sentencing in criminal cases filed in district court as a result of the termination.  RCW 35.20.101(2).

            Most of our discussion will focus on municipal courts in cities with populations of below four hundred thousand.  At their option, such cities may either establish their own municipal courts, governed by chapter 3.50 RCW, or use a municipal department of the district court under chapter 3.46 RCW.  RCW 3.50.007 and 3.50.010.  A municipal court established under chapter 3.50 RCW operates as a separate court, and not as a part of the district court system.  AGO 1991 No. 13 at 3.

            In the past, cities opting to create municipal courts under chapter 3.50 RCW could choose to select their judges either by appointment or by election.  RCW 3.50.050.  A new statute, enacted in 1993 but effective on January 1, 1995, requires that all full-time equivalent judicial positions, and some part-time positions, on such courts, "shall be filled by election."  RCW 3.50.055(1).[2]  We have recently advised that this statute removes the option of making such positions appointive, but neither shortens the terms of office of judges sitting by virtue of appointment as of its effective date, nor alters the schedule for holding elections to full terms.  AGO 1995 No. 4 at 6.

Municipal Departments of District Court

            Cities that do not operate their own, independent, municipal courts may instead secure the establishment of a "municipal department of the district court."  RCW 3.46.010.  Even though such departments hear cases arising under city ordinances, they are a part of the larger district court system established in each county.  RCW 3.46.030; AGO 1991 No. 13 at 2.  As such, "[e]ach judge of a municipal department shall be a judge of the district court in which the municipal department is situated."  RCW 3.46.020.

            Because the municipal department is part of the larger district court, the judges sitting in that capacity are drawn from the district court bench.  In the past, full-time judges for municipal departments could be selected from among the district court judges either, "by election, or by appointment in such manner as the city legislative body determines."  RCW 3.46.050.  The same legislative enactment that altered this rule with regard to municipal courts operating under chapter 3.50 RCW also removed the option of appointing most judges for a municipal department.  RCW 3.46.063.  As with municipal courts, the city may still decide to appoint some part-time judges from among the district court judges, under certain circumstances.  See footnote 2, supra.

                                                                    ANALYSIS

            Your first question, repeated for ease of reference, inquired:

            1.         Will an unexpired term election be required for any vacancy occurring in an existing judicial position in either a municipal court or a municipal department of a district court, in light of the provisions of RCW 3.46.063, 3.46.100, 3.50.055, 3.50.093, and RCW 29.13.010 and 29.21.410?

            We consider this question separately under each of the three possible statutory models.  We first answer your question as it relates to municipal courts in cities with populations over four hundred thousand, second as it applies to cities with populations below that level, and finally as it relates to municipal departments of district courts.[3]

            We note at the outset that as to all three of these situations our answers are not limited to a transitional period made necessary by the enactment of Laws of 1993, ch. 317.  Our previous opinion, AGO 1995 No. 4, concluded that the 1993 act changed the affected judicial positions from appointive offices to elective ones.  We concluded that this transition did not require early elections so long as appointed incumbent judges continued to serve the terms to which they were appointed.  The first full-term election would not occur until the regular expiration of the current term (which will vary depending upon which variety of court is at issue).  We also concluded that, even though early elections were not necessary in all cases, vacancies that occur during the current term should be treated as vacancies in an elective office.  AGO 1995 No. 4 at 6.  We discern no special rule that would govern such vacancies in positions to which the previous incumbent was appointed.

Municipal Courts Governed by Chapter 35.20 RCW

            Municipal courts in cities with populations exceeding four hundred thousand are governed by chapter 35.20 RCW.  The 1993 act did not amend or add to that chapter.  Laws of 1993, ch. 317.  Your question may therefore be readily answered as to these courts, without reference to the new law.

            RCW 35.20.150 provides that vacancies on municipal courts in larger cities, "shall be filled by the mayor, to serve out the unexpired term.  Such appointment shall be subject to confirmation by the legislative body of the city."  This statute does not call for an unexpired term election.  It simply provides for the appointment of a new judge, "to serve out the unexpired term."  Id.

            As to municipal courts governed by chapter 35.20 RCW, we therefore answer your first question in the negative.  The individual appointed by the mayor and confirmed by the legislative body may complete the unexpired term, without an unexpired term election.

Municipal Courts Governed by Chapter 3.50 RCW

            Your question raises additional issues in the context of municipal courts for cities below four hundred thousand in population.  The 1993 act added a new statute to chapter 3.50 RCW, without amending or repealing pre-existing statutes governing the selection of municipal court judges.  We therefore endeavor to read the various statutes together in such a manner as to harmonize their results and give affect to the intent of the legislature in enacting all relevant sections.  State ex rel. Royal v. Yakima Cy. Comm'rs, 123 Wn.2d 451, 459-60, ___ P.2d ___ (1994).

            Vacancies on the municipal court are filled according to RCW 3.50.093.  That section provides:

            Any vacancy in the municipal court due to a death, disability, or resignation of a municipal court judge shall be filled by the mayor, for the remainder of the unexpired term.  The appointment shall be subject to confirmation by the legislative authority of the city or town if the legislative authority has the general power of confirmation over mayoral appointments.  The appointed judge shall be qualified to hold the position of judge of the municipal court as provided in this chapter.

            The answer to your first question turns upon the relationship between this statute and RCW 3.50.055, which was added by Laws of 1993, ch. 317, § 4, effective this year.  That new section requires that, with the exception of certain part-time positions, all positions shall be "filled by election."

            As we recently concluded, "The effect of RCW 3.50.055 . . . is to eliminate the option cities have to make many of their municipal judgeships appointive . . . ."  AGO 1995 No. 4 at 3.  We also noted in that opinion that the new statute gives no instructions as to when and how elections shall take place.  Id.  We therefore conclude that RCW 3.50.055 acts merely to change the nature of certain judicial positions from appointive to elective offices, and note that it does so without amending any statutes related to vacancies.

            RCW 3.50.093 does not explicitly state, in so many words, that no unexpired term election shall be held.  Instead, it provides that the person appointed to fill the vacancy, "shall be qualified to hold the position of judge of the municipal court as provided in this chapter."  Id.  Since RCW 3.50.055 now provides that such positions shall be "filled by election," it could be argued that the new statute now requires an unexpired term election.

            The two statutes are better harmonized, however, by concluding that no unexpired term election is required.  RCW 3.50.093 states that mayor shall fill a vacancy by appointment, "for the remainder of the unexpired term."  Id.  The legislature is "presumed to have full knowledge of existing statutes affecting the matter upon which they are legislating."  Louthan v. King Cy., 94 Wn.2d 422, 429, 617 P.2d 977 (1980).  The legislature generally expressly provides for an unexpired term election when one is intended.  See,e.g., RCW 42.17.070(6) (describing unexpired term elections for certain local nonpartisan governing bodies).  It seems reasonable to conclude that if the legislature had meant to require unexpired term elections it would have done so more explicitly.

            This view is further supported by the fact that prior to January 1, 1995, cities that had voluntarily opted for elected judges would not have been required to hold unexpired term elections upon the happening of a vacancy.  The new legislation must be viewed as operating the same way in all cities, without regard to whether they used appointed or elected judges previously.  It is therefore reasonable to conclude that RCW 3.50.055 merely requires that certain positions become elective; it does not affect those positions in any other way.

            We therefore decline to interpret RCW 3.50.055 as requiring an unexpired term election.  While adding this section, requiring certain positions to be "filled by election," the legislature neither expressly provided for unexpired term elections nor amended the pre-existing statute authorizing the mayor to fill vacancies by appointment for the remainder of the term.  In this context, the phrase "filled by election," in RCW 3.50.055 would be a thin thread from which to spin a new requirement of unexpired term elections.[4]

            For these reasons we also answer your first question in the negative as it relates to cities operating municipal courts pursuant to chapter 3.50 RCW.

Municipal Departments of District Courts

            Municipal departments of district courts are very different in their nature from municipal courts.  Unlike municipal courts, the municipal department of a district court is not a stand-alone court.  It is part of the larger county district court.  AGO 1991 No. 13 at 2.  Its judges are judges of the district court.  RCW 3.46.020.  A vacancy in a municipal department would therefore ordinarily also be a vacancy on the district court.  For this reason, it is necessary to examine the statutes regarding vacancies on the district court, as well as those for the municipal department.

            Vacancies on district courts are filled according to the instruction of RCW 3.34.100.  That statute provides, in pertinent part, that, "[t]he county legislative authority shall fill all vacancies by appointment and the judge thus appointed shall hold office until the next general election and until a successor is elected and qualified."  Id.  This statute therefore calls for an unexpired term election, because it only authorizes the appointed judge to serve, "until the next general election."  Id.[5]

            Since judges serving in the municipal department are also judges of the larger district court, it is clear that judges selected to fill a vacancy must be selected according to RCW 3.34.100.  The county legislative authority fills the vacancy on the district court by appointment, subject to an unexpired term election.  This process, however, only determines who shall be entitled to serve on the district court.  We must also consider how a vacancy is filled on the municipal department, given that the judge of the municipal department must be a judge of the district court. RCW 3.46.020.

            Vacancies in the municipal department are governed by RCW 3.46.100, which reads:

            A vacancy in a position of full time municipal judge shall be filled for the unexpired term by appointment in such manner as the city may determine.  In districts having more than one judge, a vacancy in a position of part time municipal judge shall be filled for the unexpired term by appointment in such manner as the city shall determine from the judges of the district, including any judges appointed by the county commissioners to fill an unexpired term.

            The 1993 legislation added a new section to chapter 3.46 RCW, governing municipal departments, that is virtually identical to RCW 3.50.055, discussed above with respect to municipal courts.  That section, codified as RCW 3.46.063, merely requires that certain positions on the municipal court are to be "filled by election."  For the same reasons that we concluded that the new legislation did not create a new requirement for unexpired term elections on the municipal court, we conclude that RCW 3.46.063 does not create such a requirement as to municipal departments.

            When read together, RCW 3.34.100 and 3.46.100 describe the following process.  The county legislative authority fills the vacancy on the larger district court bench by appointing a new judge.  That judge holds office until the next applicable general election, at which time the position will appear on the ballot for an unexpired term.  RCW 3.34.100.  This appointment and unexpired term election merely entitles the judge to serve on the district court bench.  The city selects a judge from among the district court bench to fulfill the remainder of the term for the vacancy in the municipal department.  This selection may be the newly-appointed judge, or another member of the bench of that district.  If the city chooses the newly-appointed judge, and he or she loses the unexpired term election, the department would again be vacant, requiring another appointment from among the district judges.[6]

            We considered, but rejected, the possibility that this analysis could be altered by the last sentence of RCW 3.46.070, which reads, "Only voters of the city shall vote for municipal judges."  Since it is codified in chapter 3.46 RCW, this provision was clearly intended to address district court judges serving on municipal departments, even though such judges are judges of the larger district, which may include areas outside the city.  The selection process we have outlined results in a new judge serving the district court, without an election taking place that is limited to voters of the city, even though an election may take place throughout the district.

            Our resolution of this issue flows from our conclusion that the 1993 legislation that added RCW 3.46.063 did not create a new requirement for an unexpired term election.  It also did not alter the application of RCW 3.34.100, relating to the district court as a whole.  Our reasoning is the same as was set forth with regard to municipal courts, in relation to RCW 3.50.055.  The legislature did not amend RCW 3.46.100, which allows for appointments to fill vacancies, when it determined that most municipal judicial positions should be elective in nature.[7]

            As to municipal departments of the district court, we therefore respond to your first question by concluding that the 1993 legislation did not create a new or additional requirement of holding an unexpired term election.  Since such vacancies will usually also entail a vacancy on the district court, an unexpired term election would take place as to the district court position.

            We turn now to your second question, which, repeated for ease of reference, inquired:

            2.         How should newly-created positions on such courts be filled initially, and under what circumstances, if any, should an unexpired term election be held for such positions?

            The answer to this question depends upon the effective date of the newly-created position.  Either the position will be vacant as of the effective date of its creation, or it will be created so as to coincide with a regular, full term election.

Mid-Term Vacancies

            If the position is not created to coincide with a regular, full term election for that position, a vacancy would be created as of its effective date.  Our supreme court has held that a vacancy exists in a newly-created judicial position as of the date the legislative act creating it takes effect.  Fain v. Chapman, 89 Wn.2d 48, 51, 569 P.2d 1135 (1977).  The vacancy should be treated in the same manner as any other vacancy, whether created by death, resignation, or otherwise.  Id.[8]

            This means that the vacancy should be filled according to the same principles discussed in response to your first question.  Depending upon which type of court is involved, the process outlined above should be followed, including the holding of an unexpired term election in the case of a district court judge.

New Positions to be Filled by Elections to Full Terms

            Your question is somewhat more complex if the new position is created so as to coincide with an election for a full term.[9]  Although your questions concern unexpired terms for the most part, this possibility makes it necessary for us to discuss elections for full terms as well.

            In the case of a position on the municipal court, the election for the new position would be held in the same manner as any other position on the ballot for a full term.  RCW 3.50.050.  In the case of a municipal department of a district court, the analysis becomes more complex.

            As we noted in response to your first question, judges serving the municipal department of a district court assume a dual character.  In order to be eligible for service in the municipal department, they must be judges of the district court in which the city is situated.  RCW 3.46.020.  They also must be selected for the municipal department.  After January 1, 1995, as for full terms, this selection must be made by election.  RCW 3.46.063.[10]

            The question of how positions on the municipal department of the district should appear on the ballot, and which voters are eligible to participate in the election, requires further review.  It is clearly now necessary for the ballot to disclose that one or more positions on the district court will serve the municipal department, whether full-time or part-time.  RCW 3.46.063.

            The case ofNollette v. Christianson, 115 Wn.2d 594, 800 P.2d 359 (1990), suggests the variety of ways in which a municipal department of a district court may be organized.  In that case, as a part of its recitation of the facts, the court described the evolution and organization of the Spokane County District Court, and particularly its municipal department serving the City of Spokane.  The district court included eight judges.  The mayor of Spokane appointed four of those judges to serve the municipal department, part-time.  Each of those four judges would also hear cases as a regular district judge for the remainder of their time.  Id. at 601-603.

            This illustrates one option for organizing the court.  A city might instead designate one or more district court judges to hear cases in the municipal department full-time.  A city could also designate a combination of full-time and part-time judges.  We see nothing in the statutes that would preclude a city from choosing any of these options.[11]

            We also note that under the last sentence of RCW 3.46.070, "Only voters of the city shall vote for municipal judges."  The question arises as to how the voters shall select the district judges serving the municipal department pursuant to RCW 3.46.063, given that a full-time district judge might serve either full-time, part-time, or not at all in the municipal department.  Our task is therefore to harmonize the statutes specifying (a) that only voters of the city are to vote for municipal positions (RCW 3.46.070), (b) that the judges from whom the selection is made to the municipal department must also be elected as judges of the district court, potentially serving the entire district as well as the city (RCW 3.46.020), and (c) that the selection of which district judges serve the municipal department is to be made by the voters (RCW 3.46.063).  SeeRoyal, 123 Wn.2d at 459-60.

            This matter is easiest to resolve when a particular position on the district court is designated to serve full-time in the municipal department.  Although the winning candidate would still be elected to the office of district judge, RCW 3.46.070 informs us that only voters of the city would be eligible to vote for that position.  Since the judge serving in that position would not ordinarily hear cases as a district judge for the larger district outside the city, the fact that voters outside the city limits would not participate in the election does not seem inconsistent with legislative intent.

            The issue becomes more difficult if the position is to serve the municipal department part-time, and the judge is to hear other district court cases as an additional part of his or her regular duties.  RCW 3.46.070 only tells us that "municipal judges" shall be voted upon by city voters alone.  If the judge is to hear district court cases as well, the statute does not clearly express a legislative intent to disenfranchise the voters outside the city who would fall within the judicial jurisdiction of the position.

            RCW 3.46.063 (added by the 1993 act) instructs that, as to positions with this type of division of time, the municipal department is to be "filled by election."  That statute clearly comprehends that some part-time positions must be filled by election, and in fact establishes a fairly complex standard designed to assure this result in many situations.  It is therefore clear that voter approval, specifically related to service in the municipal department, is now required.

            We therefore must determine the extent of participation by voters within and without the city limits, as to a mixed position.  Since the position is that of district judge, and will regularly hear district court cases, it seems most reasonable to conclude that all voters of the district would be eligible to vote as to this position.  RCW 3.34.050 anticipates that all voters of the district shall be able to vote for district judges.[12]  RCW 3.46.070 describes its application as affecting only, "municipal judges," a term that under these circumstances, and in context, can reasonably be construed to mean only judges serving full-time in the municipal department.

            We considered, but rejected, the possibility that RCW 3.46.070 could be given partial effect in this situation by construing it to empower the voters of the city to reject the district-wide winner as a judge of the municipal department.  In other words, it could be argued that if two candidates seek the position, and the candidate who garners the most votes overall does not do so within the city, the election would establish that this candidate would be entitled to serve on the district court, but not on the municipal department.  The city would then fill the vacancy on the municipal department by appointment from among the judges of the larger district court.  This possible interpretation breaks down for three reasons, however.  First, it could not be applied to a multi-candidate race, in which a primary would screen the candidates to two finalists.  The significance of the city vote would not be apparent in that situation.  Second, it is entirely possible that, depending upon the size of the district court and number of judges designated to the municipal department, there might not be any additional judges on the district court available for selection.  Finally, and perhaps most importantly, this construction seems an unnatural blending of the various statutes without an obvious grounding in legislative intent.[13]

            For these reasons, we conclude that if the new position is created so as to be filled initially by an election to a full term, the procedure for conducting the election will depend upon the nature of the position.  A new position on a stand-alone municipal court should be filled by an election conducted in the same manner as any other city election.

            As to a municipal department of the district court, the position must appear on the ballot as a district court position serving the municipal department.  If the position is to serve the municipal department full-time, only the voters of the city should participate in the election.  If the position is to both serve the municipal department and additionally function as a regular district court position, hearing non-city cases, the voters of the entire district should participate in the election.

            We trust this opinion will be of assistance to you.

                                                                                                Very truly yours,

                                                                                                CHRISTINE O. GREGOIRE
                                                                                                Attorney General

                                                                                                JEFFREY T. EVEN
                                                                                                Assistant Attorney General

JTE:kas