PROBATION OF CITY OFFENDERS IN DISTRICT COURTS

COURTS ‑- JUSTICE ‑- CITIES ‑- COUNTIES ‑- PROBATION OF CITY OFFENDERS IN DISTRICT COURTS

(1) A district justice court has the authority to place a defendant convicted of a violation of a city ordinance on probation under the supervision of a county probation officer serving in a county department organized pursuant to RCW 9.95.210 even without an interlocal cooperation agreement.

(2) A district court does not have authority to direct a defendant convicted of a misdemeanor to pay a probation service fee to the county probation department as revenue to assist in the administration of the department.

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                                                                     July 9, 1975

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201                                                                                                               Cite as:  AGLO 1975 No. 60

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following questions:

            "1. Does a District Justice Court have authority to place a defendant convicted of a violation of a city ordinance on probation under the supervision of a county probation officer serving in a county department organized pursuant to RCW 9.95.210 absent an interlocal cooperation agreement?

            "2. Does a District Court have authority to direct a defendant convicted of a misdemeanor to pay a probation service fee to the county probation department as revenue to a county to assist in the administration of the county probation department?

            "3. If a district court directs a defendant convicted of a violation of a city ordinance to pay a probation service fee to the court's probation department, is that fee a cost, fine, forfeiture or penalty assessed pursuant to RCW 3.62.040 and required to be remitted to the city?"

            We generally answer your first question in the affirmative and your second question in the negative as indicated in the analysis below.  Our answer to your second question renders unnecessary an answer to your third question.

                                                                     ANALYSIS

            Question (1):

            We first note that the district justice court criminal powers extend to violations of city ordinances as well as violations of statutes.  This can be seen from  [[Orig. Op. Page 2]] a reading of RCW 3.66.060:

            "The justice court shall have jurisdiction: (1) Concurrent with the superior court of all misdemeanors and gross misdemeanors committed in their respective counties and of all violations of city ordinances:  Provided, That it shall in no event impose a greater punishment than a fine of five hundred dollars, or imprisonment for six months in the county or city jail as the case may be, or both such fine and imprisonment, unless otherwise expressly provided by statute; and it may suspend and revoke vehicle operator's licenses in the cases provided by law; (2) to sit as committing magistrates and conduct preliminary hearings in cases provided by law; (3) concurrent with the superior court of a proceeding to keep the peace in their respective counties."

            The statutory basis for the judicial power to grant probation can be found in RCW 9.95.200 and in RCW 9.95.210 which provide as follows:

            RCW 9.95.200:

            "After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted.  The court may, in its discretion, prior to the hearing on the granting of probation, refer the matter to the director of institutions or such officers as the director may designate for investigation and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant, his prior record, and his family surroundings and environment."

            RCW 9.95.210:

            "The court in granting probation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, not exceeding  [[Orig. Op. Page 3]] the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.

            "The court in the order granting probation and as a condition thereof, may in its discretion imprison the defendant in the county jail for a period not exceeding one year or may fine the defendant any sum not exceeding one thousand dollars plus the costs of the action, and may in connection with such probation impose both imprisonment in the county jail and fine and court costs.  The court may also require the defendant to make such monetary payments, on such terms as it deems appropriate under the circumstances, as are necessary (1) to comply with any order of the court for the payment of family support, (2) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question, and (3) to pay such fine as may be imposed and court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, and may require bonds for the faithful observance of any and all conditions imposed in the probation.  The court shall order the probationer to report to the supervisor of the division of probation and parole of the department of institutions or such officer as the supervisor may designate and as a condition of said probation to follow implicitly the instructions of the supervisor of probation and parole.  The supervisor of probation and parole with the approval of the director of institutions will promulgate rules and regulations for the conduct of such person during the term of his probation:  Provided, That for defendants found guilty in justice court, like functions as the supervisor of probation and parole performs in regard to probation may be performed by probation officers employed for that purpose by the board of county commissioners of the county wherein the court is located."

            It seems clear from this statutory language that the  [[Orig. Op. Page 4]] legislature intended to include district justice courts with criminal jurisdiction within the class of courts empowered to grant or deny probation.  The opening sentence of RCW 9.95.200 refers to conviction by plea or verdict of guilty "of any crime," and there seems little question that this phrase extends to crimes within the jurisdiction of those courts.  Accord, the final proviso of RCW 9.95.210 which states that:

            ". . . for defendants found guilty in justice court, like functions as the supervisor of probation and parole performs in regard to probation may be performed by probation officers employed for that purpose by the board of county commissioners of the county wherein the court is located."

            These two statutes together give evidence of a legislative plan to give district justice courts the power to grant probation and the further power, in connection with such grants, to utilize the services of county probation officers rather than those of the state department of institutions.  Moreover, there is nothing therein to indicate that the power of a district justice court to grant probation in a criminal case and to exercise its authority to assign the defendant to a county probation officer is limited in any way when the case involves a violation of a city ordinance rather than a state statute.  To the extent that a violation of a city ordinance constitutes a crime, it thus must be concluded that a district justice court with jurisdiction over such violations under RCW 3.66.060,supra, has the power, upon granting probation to the defendant, to utilize the service of county probation officers in connection with that probation.  The statutory language itself, then, requires an affirmative answer to your first question.

            This conclusion, we should add, is entirely consistent with the general theories of legislative power as interpreted in Washington.  Both cities and counties in Washington are creatures of the legislature and it is within the legislative discretion to allocate various governmental functions among the cities and counties and to assign their financial responsibilities.

            There is, however, one possible qualification on the foregoing to be noted.  Complementing RCW 9.95.210,supra, with respect to county probation services is another statute, RCW 36.01.070, which reads as follows:

            "Notwithstanding the provisions of chapter 72.01 RCW or any other provision of law, counties may engage in probation and parole services and employ personnel therefor  [[Orig. Op. Page 5]] under such terms and conditions as any such county shall so determine."

            Under this statute a county might possibly prescribe as a "term or condition" of its engagement in probation and parole services that the services be limited to offenses involving violations of state laws and county ordinances; or, likewise, it might establish any number of other types of limitation which could affect the power of a district court to utilize a particular probation system.  We have, however, previously pointed out this possibility to you and have been informed, by means of a copy of your county ordinance with which you have provided us, that no such limiting provisions are contained therein.

            Question (2):

            Your second question, here repeated for ease of reference, is as follows:

            "Does a District Court have authority to direct a defendant convicted of a misdemeanor to pay a probation service fee to the county probation department as revenue to a county to assist in the administration of the county probation department?"

            This question, we believe, must be answered in the negative.  We can find no authority in any existing statute for a district justice court to direct a defendant convicted of a misdemeanor to pay a probation service fee to the county probation department as a condition of being granted probation.  Again we make reference to RCW 9.95.210 which in pertinent part lists the conditions which may be imposed on probation by a court as follows:

            "The court in the order granting probation and as a condition thereof, may in its discretion imprison the defendant in the county jail for a period not exceeding one year or may fine the defendant any sum not exceeding one thousand dollars plus the costs of the action, and may in connection with such probation impose both imprisonment in the county jail and fine and court costs.  The court may also require the defendant to make such monetary payments  [[Orig. Op. Page 6]] on such terms as it deems appropriate under the circumstances, as are necessary (1) to comply with any order of the court for the payment of family support, (2) to make restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question, and (3) to pay such fine as may be imposed and court costs, including reimbursement of the state for costs of extradition if return to this state by extradition was required, and may require bonds for the faithful observance of any and all conditions imposed in the probation. . . ."

            We have considered several ways in which the language of this statute might be read to empower a district justice court to direct a misdemeanant to pay a probation service fee but we have rejected them all.

            First, we have looked to the possibility that a probation service fee could, somehow, be considered a "court cost" or a "cost of the action" within the meaning of the statute.  The term "court costs," however, has consistently been interpreted in Washington courts to be limited to the costs of filing and administering actions as set forth in statutory law.  See,Pierce County v. Magnuson, 70 Wash. 639, 127 Pac. 302 (1912), holding that in criminal as in civil cases, the right to costs is purely statutory; and State v. Twitchell, 61 Wn.2d 403, 378 P.2d 444 (1963), holding that the costs recoverable are essentially those listed in chapter 4.84 RCW.

            Next, we have considered the possibility that the imposition of a probation service fee could be considered a type of "restitution" under the provisions of subsection (2) of RCW 9.95.210, supra.  Such a reading, however, would so clearly strain the meaning of the words involved that we are unable seriously to entertain it.  "Restitution" must be interpreted to refer to payments made to persons directly victimized by the commission of the crime in question and not to such indirect "victims" as the county probation officers.

            Finally, we have considered the possibility that a probation service fee could be regarded as a "fine" within the meaning of subsection (3) of the statute.  We have concluded, however, that this interpretation is firmly precluded by various provisions contained within chapter 3.62 RCW regarding the disposition of fees, fines, forfeitures and penalties imposed by justice courts.

             [[Orig. Op. Page 7]]   Under the recognized canon of construction,expressio unius est exclusio alterius, it may be presumed that the legislature in listing certain conditions which justice courts could impose upon probation intended to exclude all other conditions.  Accordingly, having rejected the foregoing possibilities, it follows that there is in RCW 9.95.210 no statutory basis for a district justice court to direct a defendant convicted under its jurisdiction to pay money to the county probation service.

            Question (3):

            This negative answer to your second question renders unnecessary any answer to your third.  Chapter 3.62 RCW directs most explicitly the disposal of moneys derived from fees, fines and forfeitures assessed by district justice courts.  Any scheme which would involve the diverting of money which would otherwise be disposed of under that chapter to another source would thus be in violation of statutory law.

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

Very truly yours,

SLADE GORTON
Attorney General

JAMES K. PHARRIS
Assistant Attorney General