PROSECUTION OF MUNICIPAL OFFENSES

OFFICES AND OFFICERS ‑- CITIES AND TOWNS ‑- POLICE CHIEF ‑- CITY ATTORNEY ‑- PROSECUTION OF MUNICIPAL OFFENSES

A chief of police or town marshal of a fourth class town may not act as his own prosecuting attorney by prosecuting a drunk driving case without the aid or assistance or appearance of the town attorney at the time of trial in the town municipal court.

                                                                 - - - - - - - - - - - - -

                                                                 October 3, 1975

Honorable H. A. "Barney" Goltz
State Senator, 42nd District
3003 Vallette St
Bellingham, Washington 98225                                                                                                Cite as:  AGLO 1975 No. 85

Dear Sir:

            By recent letter you have requested our opinion on the following question:

            "May a chief of police or town marshal of a fourth class town act as his own prosecuting attorney by prosecuting a drunk driving case without the aid or assistance or appearance of the town attorney at the time of trial in the town municipal court?"

            We answer this question in the negative.

                                                                     ANALYSIS

            RCW 35.27.240 provides that:

            "The department of police in a town shall be under the direction and control of the marshal subject to the direction of the mayor.  He shall prosecute before the police justice all violations of town ordinances which come to his knowledge. . . ."

            Similarly, RCW 35.24.160 ‑ which deals with the same subject in a third class city ‑ says that:

            ". . .  The chief of police shall prosecute before the police justice all violations of city ordinances which come to his knowledge. . . ."

            Nevertheless, in AGO 61-62 No. 184 [[to John Bigley, State Representative on December 18, 1962]], copy enclosed, this office advised that the latter statute doesnot  [[Orig. Op. Page 2]] authorize the chief of police in a third class city to ". . . represent the city as its attorney in the prosecution of ordinance violations before a police judge . . ."  In so concluding we cited two separate reasons.

            First, assuming (as is certainly the case in most instances) that the police chief is not a licensed attorney, we said that his representation of the city in criminal proceedings before a court would violate RCW 2.48.170 which provides:

            "No person shall practice law in this state . . . unless he shall be an active member [of the state bar] . . ."  (Emphasis supplied.)

            In addition, we pointed out that Rule 7, Rules for Admission to Practice, promulgated by our supreme court, would take precedence over any inconsistent statute on the subject.  See,State ex rel. Laughlin v. State B.A., 26 Wn.2d 914, 176 P.2d 301 (1947). This rule provides, in pertinent part, as follows:

            "No personshall appear as attorney or counsel in any of the courts of this state, unless he is an active member of the state bar: . . ."  (Emphasis supplied.)

            And then, secondly, we referred to RCW 35.24.110, which relates to the responsibilities of the city attorney of a third class city and provides that:

            ". . .  He [the city attorney]shall represent the city in all actions broughtby or againstthe city or against city officials in their official capacity. . . ."  (Emphasis supplied.)

            Although the counterpart to this latter statute which appears in chapter 35.27 RCW with respect to fourth class cities is not so precisely worded, it is our opinion that insofar as prosecutions for the violation of town ordinances are concerned, the two statutes mean essentially the same thing.  RCW 35.27.250, relating to such cities, provides that:

            "The town attorney shall advise the town authorities and officers in all legal matters pertaining to the business of the town."

            The manifest purpose of this statute, as of RCW 35.24.110, supra, is to provide the municipality being served with  [[Orig. Op. Page 3]] a legally competent attorney to do for it the things which, under RCW 2.48.170,supra, only an attorney can do.  And that includes, as we have seen, appearing in the courts on its behalf; i.e., representation.  Therefore, paraphrasing what we said of RCW 35.24.160, at page 2 of our earlier opinion, if RCW 35.27.240 actually delegated to the town marshal the duty to prosecute, meaning to represent the town as its attorney in criminal actions, the statute would be manifestly inconsistent with RCW 35.27.250 which declares that the town attorney shall advise the town in "all" legal matters pertaining to the business of the town.

            Thus, in response to your present question, it is our opinion, for the same reasons as were given in AGO 61-62 No. 184, supra, with respect to third class cities, that the chief of police or town marshal of a fourth class city may not ". . . act as his own prosecuting attorney . . ." by prosecuting city ordinance violations before the town municipal court without the aid or assistance or appearance of the town attorney at the time of trial.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General