OFFICES AND OFFICERS ‑- STATE ‑- ATTORNEY GENERAL ‑- AUTHORITY TO APPOINT SPECIAL ASSISTANT TO ASSIST PROSECUTING ATTORNEY BEFORE GRAND JURY

OFFICES AND OFFICERS ‑- STATE ‑- ATTORNEY GENERAL ‑- AUTHORITY TO APPOINT SPECIAL ASSISTANT TO ASSIST PROSECUTING ATTORNEY BEFORE GRAND JURY.

(1) Prosecuting attorney is not legally authorized to appoint a special deputy who is a nonresident of the county to assist him either before a grand jury or in trying a criminal case.

(2) The attorney general is not legally authorized to appoint a special assistant attorney general to assist a prosecuting attorney in proceedings before a grand jury.

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                                                                 February 3, 1959

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington                                                                                                    Cite as:  AGO 59-60 No. 6

Dear Sir:

            This is in answer to your request for the opinion of this office on the following questions:

            1.  Does the prosecuting attorney have the authority to appoint as a special deputy to assist him in appearing before the grand jury, a lawyer who is not a resident of the county in which the prosecuting attorney holds office?

            2.  Does the prosecuting attorney have the authority to appoint as a deputy to assist him in trying a criminal case, a lawyer who is not a resident in the county in which the prosecuting attorney holds office?

            3.  Does the attorney general have the power to appoint a special assistant attorney general who would be authorized to assist the prosecuting attorney in proceedings before a grand jury?

             [[Orig. Op. Page 2]]

            Questions 1 and 2 are answered in the negative as modified in the analysis.  Question 3 is answered in the negative.

                                                                     ANALYSIS

            Your first question is concerned with the authority of the prosecuting attorney to appoint a special deputy to assist him in appearing before the grand jury who is not a resident of the county in which the prosecuting attorney holds office.  The statutory authority for the appointment of deputies by prosecuting attorney is found in RCW 36.27.040, which reads as follows:

            "The prosecuting attorney may appoint one or more deputies who shall have the same power in all respects as their principal.  Each appointment shall be in writing, signed by the prosecuting attorney, and filed in the county auditor's office.  Each deputy thus appointed shall have the same qualifications required of the prosecuting attorney, but his appointment may be revoked by the prosecuting attorney at will.  The prosecuting attorney shall be responsible for the acts of his deputies."

            The qualifications required of a prosecuting attorney are set forth in RCW 36.27.010, as follows:

            "No person shall be eligible to the office of prosecuting attorney in any county of this state, unless he is a qualified voter therein, and has been admitted as an attorney and counselor of the courts of this state."

            In an opinion issued on March 28, 1955, to the Executive Secretary of the Washington Association of County Commissioners (AGO 55-57 No. 48), the attorney general ruled that in view of the statutes, supra, a deputy prosecuting attorney must be a resident of the county in which he serves.  However, that opinion contained a specific statement that the conclusion reached therein was not controlling as to special attorneys appointed either by the court (RCW 36.27.020) or by the county commissioners (RCW 36.32.200).

            The pertinent statutes relating to grand juries in this state are found in chapter 10.28 RCW.  RCW 10.28.070 specifically provides that

             [[Orig. Op. Page 3]]

            "The prosecuting attorney shall attend on the grand jury for the purpose of examining witnesses and giving them such advice as they may ask."

            In addition, one of the prescribed statutory duties of the prosecuting attorney set forth in RCW 36.27.020, is to

            "(5) Attend and appear before and give advice to the grand jury when cases are presented to it for consideration and draw all indictments when required by the grand jury;"

            In the case ofState v. Wallace, 119 Wash. 457, 206 Pac. 27, the court was concerned with the problem of the appointment of a special prosecuting attorney to appear in place of the prosecuting attorney before the grand jury.  There, the prosecuting attorney considered himself disqualified to present the matters fully before the grand jury because his office was involved in the investigations.  Accordingly, a special prosecuting attorney was appointed by the superior court and was appointed a special deputy prosecuting attorney by the regularly elected prosecuting attorney.  However, the county commissioners objected to the appointment and attempted by resolution to revoke said appointment.  As a result the special prosecuting attorney resigned and thereupon

            ". . . TheAttorney General of the state was called upon by the prosecuting attorney to come in person or to send an assistant or deputy from his office to take up this work, but the Attorney General found it impossible to comply with this request, and finally suggested that Tom W. Holman, prosecuting attorney for Jefferson county, then about to retire from that office, was a fit, proper and capable person to undertake the work, but did not then or afterwards appoint him as an assistant or deputy, or in any manner clothe him with any of the authority of theAttorney General's office."  (p. 459)

            Subsequently the judges of the superior court for Whatcom county entered an order reciting that the first special prosecuting attorney had resigned and that the court had appointed another local attorney who had refused to act and that the person suggested by the attorney general was a fit and proper person to take charge of the grand jury and he was thereby appointed special prosecuting attorney.  After the grand jury in question returned indictments, the trial court, upon proper motion, entered an order quashing the indictments because of the disqualification of the  [[Orig. Op. Page 4]] special prosecutor arising from his having been a resident and elector of another county during the time of his appointment and service.  On appeal the supreme court discussed all of the earlier statutes dealing with the appointment of special prosecutors and finally quoted the provisions of § 5, chapter 55, Laws of 1891, (RCW 36.27.030, part), which reads as follows:

            "When from illness or other cause the prosecuting attorney is temporarily unable to perform his duties, the court or judge may appoint some qualified person to discharge the duties of such officer in court until the disability is removed."

            The court then stated as follows:

            "Without going further or discussing the authorities cited from other jurisdictions, we are of the opinion that there is ample authority vested in the superior court to appoint a special prosecutor in all proper cases, and that the exercise of that authority is not conditioned upon any recital in the order as to how, or from what source, he shall be compensated.  Further, the act of 1893 expressly authorizes the appointment of any qualified attorney resident of the state in cases where there is no qualified person resident of the county who will consent to act, and such condition fairly appears from the recitals in the order appointing Mr. Holman; but even if these recitals were held to be insufficient, the superior court will be presumed to have acted within its authority until the contrary is made to appear.  Here there is no suggestion in the record that at the time in question there was any qualified person resident of Whatcom county who was willing or consented to perform the duties of the prosecutor."  (119 Wash. pp. 463-464)  (Emphasis supplied.)

            In a later case,State v. Guthrie, 185 Wash. 464, 56 P. (2d) 160, the court quoted from the statement of the court in the case of State v. Wallace, supra, as follows:

            "While the immediate question involved there was the authority to appoint an attorney not a  [[Orig. Op. Page 5]] resident of Whatcom county, the opinion clearly indicates that the superior court will be conceded a large measure of discretion in determining whether the appointment of the special prosecutor is necessary.  In the course of its opinion, the court used language which may be appropriately repeated here:

            "'A careful reading of the record, however, convinces us that the prosecuting attorney made clear to the trial court his position, which was, in effect, that he was disqualified as to the investigation of the charges affecting his own office, . . .'"  (p. 478)

            The court distinguished the early case of State v. Heaton, 21 Wash. 59, 56 Pac. 843, in view of the different factual situation.  In that case the prosecuting attorney was exonerated by the grand jury and then appeared in court and requested that he be permitted to advise the grand jury and carry out his duties as prosecuting attorney.  However, the court acceded to the request of the grand jury for special counsel and appointed a special prosecutor.  Our court on appeal held that the office of prosecuting attorney was quasi-judicial and under the circumstances disclosed by the record the action by the superior court in supplanting him by the appointment of a special prosecutor was unauthorized.  However, in the case ofState v. Guthrie, supra, the prosecutor not only requested the appointment of a special prosecutor but acquiesced in the court's action by designating its appointee as a special prosecutor.

            We think it is clear from the foregoing statutes and cases that a prosecuting attorney is legally authorized only to appoint a deputy prosecuting attorney who is a resident of the county in which he is to be appointed.  It is equally clear, however, that the trial court possesses a large degree of discretion in determining when special counsel may be appointed.  Accordingly, if the trial court determines that special counsel is needed to assist the prosecuting attorney before the grand jury, and an appointment is made and the individual in question is appointed a special deputy by the prosecuting attorney, we are of the opinion that such an appointment would be valid.

            Inasmuch as the answer to your second question is governed by the same statutes and cases as those discussed in the first question, a further discussion is unnecessary.  Accordingly, it is our opinion that the prosecuting attorney does not have the authority to appoint as a deputy to assist  [[Orig. Op. Page 6]] him in trying criminal cases, a lawyer who is not a resident of the county in which the prosecuting attorney holds office.  However, we conclude that the trial court has the necessary discretion to appoint special counsel who is not a resident of the county to assist the prosecuting attorney in trying a criminal case if the prosecuting attorney appoints the special counsel as a deputy prosecuting attorney.

            In answer to your third question, the statute authorizing the attorney general to assist prosecuting attorneys is found in RCW 43.10.030 (4), and provides specifically as follows:

            "The attorney general shall:

            "(4) Consult with and advise the several prosecuting attorneys in matters relating to the duties of their office, and when the interests of the state require, he shall attend the trial of any person accused of a crime, and assist in the prosecution;"

            In the case ofState ex rel. Attorney General v. Seattle Gas Co., 28 Wash. 488, involving an action brought by the attorney general to inquire byquo warranto into the wrongful exercise of public franchises by a corporation, the court held that, inasmuch as the prosecuting attorney was the only public official expressly authorized to bring such proceedings, the attorney general had no authority to institute such an action.  In the course of that opinion the court discussed in detail the powers of the attorney general as follows:

            "The appellant assumes that the attorney general of this state, by virtue of his office, is, like the attorney general of England, clothed with common-law power to institute this suit, as it was the duty of the attorney general under the common law to represent the crown in such actions as this, and that therefore the attorney general of this state on his own motion can institute this suit.  Political power in this state inheres in the people, and by constitutional or statutory authority the exercise of this power in behalf of the people is delegated to certain officers.  In the exercise of power the officer is controlled by the law theretofore declared.  The attorney general of the state, although bearing the same title as the attorney general of England, is not a common-law officer.  There is nothing in a mere name.  Because the particular office filled by  [[Orig. Op. Page 7]] the relator is called the office of 'attorney general,' it does not follow therefrom that he has the same powers as the attorney general of England under the common law.  Every office under our system of government, from the governor down, is one of delegated powers.

            "'It is a well-settled doctrine that officers of the state exercise but delegated power, and this is particularly true of the attorney general.  His office is created by statute, and he, as such officer, can only exercise such power as is delegated to him by statute.'  Julian v. State, 122 Ind. 68, 72 (23 N.E. 691).

            "It is true that the office of attorney general of this state is created by the constitution; but the principles announced in the Indiana case are none the less applicable.  The constitution and statutes of this state define his power.  To the constitution, therefore, and the laws enacted in pursuance thereof, we must look for these powers, and not to the common law. . . ." (pp. 495-496)

            The court then discussed the pertinent provisions of the constitution; in particular, § 2, Article III, whereby the governor is made the supreme executive power of the state.  The court then quoted from what is now RCW 43.06.010 (6), which provides as follows.

            "(6) He may require the attorney general or any prosecuting attorney to inquire into the affairs or management of any corporation existing under the laws of this state, or doing business in this state, and report the same to him, or to any grand jury designated by him, or to the legislature when next in session;"

            The court quoted from the provisions of RCW 36.27.020 (3) and concluded that the prosecuting attorney was the only officer authorized to file thequo warranto proceedings in question.  The court then stated:

            "The legislation of the state shows that the legislature has not considered that the attorney general is clothed with any other power than that conferred  [[Orig. Op. Page 8]] upon him by the constitution or by express legislative enactment.  Where it has been deemed necessary for the attorney general to appear and represent the state, authority for that purpose has been given to him by express enactment. . . ."  (p. 501)

            In essence, the court held that the attorney general of the state of Washington has no common-law powers but only those specific powers given to him by the legislature and the constitution.

            We note, however, that since that time the court has not adhered to the strict construction of the power of the attorney general but in one instance, at least, has ruled that the attorney general has certain common-law powers.  SeeKenney Presbyterian Home v. State, 174 Wash. 19, 24 P. (2d) 403, andReagh v. Hamilton, 194 Wash. 449, 78 P. (2d) 555, for a discussion of the power of the attorney general with regard to testamentary charitable trusts.

            In the later case ofState ex rel. Hamilton v. Superior Court, 3 Wn. (2d) 633, 101 P. (2d) 588, the court discussed RCW 36.27.020 (3), which provides that prosecuting attorneys are subjected to the "supervisory control and direction of the attorney general" and stated that it must be read in pari materia with the provisions of other acts specifying the duties of the attorney general and the prosecuting attorneys.  The court discussed the matter in detail as follows:

            "As so construed, it would seem that the reasonable construction of Rem. Rev. Stat., § 116, should be that the measure of 'supervisory control and direction' to be exercised by the attorney general is that vested in him by chapter 92, Laws of 1929, defining his duties and powers; that is to say, the right 'to consult with and advise' the several prosecuting attorneys in matters relating to the duties of their office, and, when the interests of the state require, to assist in the prosecution of criminal offenses, and the further powers conferred by the provisions of chapter 88, Laws of 1937, p. 344 (Rem. Rev. Stat. (sup.), § 112-1 [P.C. § 6574-14a]).

            "By that act, the governor is authorized to request the attorney general to investigate violations of the criminal laws of the state, and if, after investigation, he believes that the laws are improperly enforced in  [[Orig. Op. Page 9]] any county, and that the prosecuting attorney has failed or neglected to institute and prosecute violations of such criminal laws, he is authorized to direct the prosecuting attorney to take such action, in connection with any prosecution, as the attorney general determines to be necessary.  If the prosecuting attorney, after receipt of such instructions from the attorney general, shall fail or neglect to comply within a reasonable time, the attorney general is authorized to initiate and prosecute such criminal actions as he shall determine, and from the time he shall have initiated or taken over the criminal prosecution, the prosecuting attorney shall have no power or authority to take any legal steps relating to such actions, except as authorized and directed by the attorney general.

            "If the attorney general had already, in virtue of Rem. Rev. Stat., § 116, possessed the power asserted by him here, there would have been no necessity for the enactment of the 1937 law.  This law illustrates, we think, what was intended by the words, 'supervisory control and direction,' used in Rem. Rev. Stat., § 116; that is to say, that the prosecuting attorney was empowered to perform certain duties, subject to such 'supervisory control and direction' as might be substantially conferred by law upon the attorney general."  (p. 638)

            In addition, we should like to call your attention to the provision of the statute which authorizes the governor to direct the attorney general to appear before any grand jury designated by him.  RCW 43.06.010 provides in part as follows:

            "In addition to those prescribed by the Constitution, the governor may exercise the powers and perform the duties prescribed in this and the following sections:

            "(5) Whenever any suit or legal proceeding is pending against this state, or which may affect the title of this state to any property, or which may result in any claim against the state, he  [[Orig. Op. Page 10]] may direct the attorney general to appear on behalf of the state, and report the same to him, or to any grand jury designated by him, or to the legislature when next in session;"

            Clearly, the attorney general may appear before a grand jury when directed to do so by the governor of the state, pursuant to the statute, supra.

            RCW 43.10.060 authorizes the attorney general to appoint assistants to hold office at his pleasure who are given the same authority to perform any act which the attorney general is authorized by law to perform.  The section further provides that the attorney general

            ". . . may employ or discharge attorneys and employees to transact for the state, its departments, officials, boards, commissions, and agencies, all business of a legal or quasi legal nature, except those declared by law to be the duty of the judge of any court,or the prosecuting attorney of any county."  (Emphasis supplied.)

            In the case ofMather v. King County, 39 Wash. 693, 82 Pac. 121, the supreme court quoted RCW 10.28.070, supra, requiring the prosecuting attorney to attend on the grand jury, and then stated as follows:

            ". . . No other person is authorized by law to attend upon the sessions of the grand jury.  The legislature, having provided for the officers of that body, it is not within the power of the county commissioners to provide other officers or employees.  Smith v. Lamping, 27 Wash. 624, 68 Pac. 195."  (p. 695)

            On September 17, 1934, in answer to a request for advice as to whether he could authorize an assistant attorney general to take the place of a prosecuting attorney and serve with the grand jury in Pierce county, the attorney general stated that

            "In accordance with the statutes and the decision of our Supreme Court in the case of A. G. Mather v. King County, 39 Wash. 693, only the Prosecuting Attorney or his deputy can appear before the Grand Jury and the deputy must be a resident of Pierce County.

             [[Orig. Op. Page 11]]

            "In the case of State v. Wallace, 119 Wash. 457, from Whatcom county, when the Prosecuting Attorney and other attorneys in Whatcom county refused to act as deputy and assume that duty before the Grand Jury, an outside attorney was appointed by the Superior Court and the same attorney appointed was a deputy who was approved by the County Commissioners, and the court held the indictments valid, as there was no other qualified person in the county who would consent to act.

            "This seems to be the only condition that an attorney not a resident of Pierce County could act and appear before the Grand Jury.  In that case the Attorney General merely suggested an attorney who would act, to-wit, Tom W. Holman."

            We conclude, therefore, that even though the broad ruling in the case ofState ex rel. Attorney General v. Seattle Gas Co., supra, has been modified in recent years in certain areas, the attorney general possesses no common-law powers with regard to a grand jury where such powers have been specifically delegated to another official, i.e., the prosecuting attorney.

            Accordingly, it is the opinion of this office that the attorney general has no power to appoint a special assistant attorney general who would be authorized to assist the prosecuting attorney in proceedings before a grand jury.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General