SOLEMNIZATION OF MARRIAGE BY JUDGE OR JUSTICE PRO TEM

COURTS ‑- JUDGES ‑- LAWYERS ‑- MARRIAGE ‑- SOLEMNIZATION OF MARRIAGE BY JUDGE OR JUSTICE PRO TEM 

A lawyer (including a retired former judge) who does not otherwise hold a judicial office but who has been appointed to serve as a judge pro tem of a superior court pursuant to RCW 2.08.180, as a judge pro tem of the court of appeals pursuant to RCW 2.06.150, or as a justice pro tem of the State Supreme Court pursuant to Wash. Const., Art. IV, § 2(a) is not thereby authorized to solemnize marriages under RCW 26.04.050.

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                                                                    June 6, 1984  

Mr. James R. Larsen
Administrator for the Courts
1206 S. Quince, M.S. EZ-11
Olympia, WA 98504

Cite as:  AGO 1984 No. 13                                                                                                            

  Dear Sir:

             By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

             Is a lawyer (including a retired former judge) who does not otherwise hold a judicial office but who has been appointed to serve as a judge pro tem of a superior court pursuant to RCW 2.08.180, as a judge pro tem of the court of appeals pursuant to RCW 2.06.150, or as a justice pro tem of the State Supreme Court pursuant to Wash. Const., Art. IV, § 2(a), thereby authorized to solemnize marriages under RCW 26.04.050?

             We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

             The subject of marriage is covered, in this state, by statutes codified in chapter 26.04 RCW.  Among those statutes is RCW 26.04.050 which identifies those persons who are legally authorized to perform a marriage ceremony.  The full text of RCW 26.04.050 reads as follows:

              [[Orig. Op. Page 2]]

            "The following named officers and persons are hereby authorized to solemnize marriages, to wit:  Justices of the supreme court, judges of the court of appeals, judges of the superior courts, any regularly licensed or ordained minister or any priest of any church or religious denomination anywhere within the state, and judges of any court of limited jurisdiction, as defined in RCW 3.02.010, within their respective counties."

             Quaere:  Does the reference therein to justices of the State Supreme Court, judges of the court of appeals or judges of the superior courts include persons (i.e., lawyers) who are not otherwise holding a judicial office but who have been appointed to serve as a judge or justice pro tem of one of those courts?

             In responding to that inquiry we will first consider the matter from the standpoint of those persons who have been appointed to serve as judges or justices pro tem, respectively, of the state court of appeals or the State Supreme Court.  The governing law in both instances is virtually identical in its terminology.  In the case of justices pro tem of the State Supreme Court, that law is contained in Wash. Const., Art. IV, § 2(a) which reads as follows:

             "When necessary for the prompt and orderly administration of justice a majority of the Supreme Court is empowered to authorize judges or retired judges of courts of record of this state, to perform, temporarily, judicial duties in the Supreme Court, and to authorize any superior court judge to perform judicial duties in any superior court of this state."

             Similarly, in the case of the state court of appeals, RCW 2.06.150(1) reads:

             "(1) Whenever necessary for the prompt and orderly administration of justice, the chief justice of the supreme court of the state of Washington may appoint any regularly elected and qualified judge of the superior court or any retired judge of a court of record in this state to serve as judge pro tempore of the court of appeals:  PROVIDED, HOWEVER, That no judge pro tempore appointed to serve on the court of appeals may serve more than ninety days in any one year."

              [[Orig. Op. Page 3]]

            Clearly, of course, if the pro tem judge or justice thus involved is, at the time, also an active superior court judge, he or she may, in that latter capacity, solemnize marriages in accordance with the express terms of RCW 26.04.050,supra.  But what if the pro tem judge or justice is, instead, a retired former judge?

            We believe the proper approach to be taken in answering that question, as well as your related question regarding lawyers serving as pro tem superior court judges under RCW 2.08.180, is the analytical approach which was taken by this office some years ago in AGO 51-53-463, copy enclosed.  There, we were concerned with the power of court commissioners (at the superior court level) to perform marriage ceremonies.  In responding to that question we looked, basically, to the constitutional provision (Wash. Const., Art. IV, § 23) and statute (RCW 2.24.040) from which such court commissioners derive their legal authority.  First, we noted that the applicable constitutional provision says that:

             "There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers, subject to revision by such judge, to take depositions and to perform such other business connected with the administration of justice as may be prescribed by law:"  (Emphasis supplied)

             In turn, we then noted the specific powers and functions which are vested in superior court commissioners by RCW 2.24.040 and found that ". . . [t]he authority in question is not included."

             Similarly, the power or authority to solemnize marriages is not included, or even implied, in the case of Supreme Court justices pro tem or court of appeals' judges pro tem by virtue of Art. IV, § 2(a), supra, or the similar language of RCW 2.06.150(1).  The former speaks only of the performance of judicial duties in the Supreme Court while the latter, likewise preceded by the same statement of criteria (whenever necessary for the prompt and orderly administration of justice), simply speaks of service ". . . as [a] judge pro tempore of the court of appeals . . ."  Indeed, under that criteria, the only justification for an appointment in the first place would appear to be one related to the workload and responsibilities of the respective court or courts, themselves.  We therefore conclude that a justice pro tem  [[Orig. Op. Page 4]] of the State Supreme Court or judge pro tem of the court of appeals is not authorized, as such, to solemnize marriages under RCW 26.04.050,supra.

             For essentially the same reason, we reach an identical conclusion in the case of those persons (i.e., attorneys) who are appointed to serve as judges pro tem of a superior court.  RCW 2.08.180, which authorizes such appointments, reads, in pertinent part, as follows:

             "A case in the superior court of any county may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, approved by the court, and sworn to try the case; and his action in the trial of such cause shall have the same effect as if he were a judge of such court. . . ."

             This statutory provision is actually even more explicit than the constitutional provision and the statute which govern at the Supreme Court and court of appeals' levels, respectively.  A superior court judge pro tem is to be appointed for the purpose of a particular case‑-with the agreement of the parties litigant or their counsel of record.  And that is his or her only function.

             Once again, it is possible that the particular person appointed to serve as a superior court judge pro tem may also, at the same time, hold some other judicial office;i.e., in this instance, he or she may be a sitting district or municipal court judge.  In that capacity, as the judge of a court of limited jurisdiction as defined in RCW 3.02.010, the person involved may, likewise, solemnize marriages under RCW 26.04.050, supra‑-just as in the situation above noted relating to an active superior court judge who is temporarily serving as a justice pro tem of the Supreme Court or judge pro tem of the court of appeals.

             Your question, however, expressly disclaims coverage of those situations.  Rather, it relates only to those pro tem judges or justices who do not otherwise hold a judicial office.  And, for the reasons above stated, it is our opinion that no such person, on that basis alone, possesses the requisite legal authority to perform a marriage ceremony in this state.

              [[Orig. Op. Page 5]]

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General