HOUSE BILL REPORT

ESB 5860

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Brief Summary of Engrossed Bill

(As Amended by Committee)

Provides that the Attorney General (AG) is not required to institute or prosecute actions on behalf of Superior Court judges against the state or a county with respect to fiscal issues.
Provides that any duty on the part of the AG to continue to prosecute an action on behalf of Superior Court judges ceases after the effective date of the act.

Background:

Washington Constitution Article III, section 21 provides that "[t]he attorney general shall be the legal adviser of the state officers, and shall perform such other duties as may be prescribed by law." In statute, the Legislature has provided that the Attorney General (AG) shall, among other things, "Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of any state officer."

Generally, each of the state's counties is to have at least one superior court judge elected by the qualified electors of the county, although the Constitution allows and provides for situations in which counties share a judge or judges. The exact number of superior court judges in each county is set by statute. The state and each county share the cost of superior court judges for that county.

In a variety of cases and contexts, the Supreme Court has held that Superior Court judges are state officers, or both state and county officers.

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Summary of Amended Bill:

The Attorney General (AG) is not required to institute or prosecute actions or proceedings on behalf of a superior court judge or judges against the state or a county when any purpose of the action or proceeding, any cause of action, or any remedy sought, is related to or would require fiscal appropriations or funding or financial payment of any sort from the state or a county.

With respect to any proceeding already instituted on behalf of a judge or judges under the statutory provision imposing a duty to institute or prosecute actions on behalf of state officers, the AG's duty to prosecute ceases after the effective date.

Amended Bill Compared to Engrossed Bill:

Provisions are stricken that required the Attorney General (AG) to prosecute and institute actions on behalf of superior court judges only if requested to do so by the Administrative Office of the Courts (AOC), and further required the AG and the AOC to split the costs of such actions half and half. Also stricken is the provision concerning claim filing and mandatory mediation or other form of alternative dispute resolution.

The stricken provisions are replaced with the following:

the AG is not required to institute or prosecute actions or proceedings on behalf of a superior court judge or judges against the state or a county when any purpose of the action or proceeding, any cause of action, or any remedy sought, is related to or would require fiscal appropriations or funding or financial payment of any sort from the state or a county;
with respect to any proceeding already instituted on behalf of a judge or judges under the statutory provision imposing a duty to institute or prosecute actions on behalf of state officers, the AG's duty to prosecute ceases after the effective date; and
an emergency clause which takes effect immediately.

Staff Summary of Public Testimony:

(In support) The Attorney General (AG) has no choice, under current law, but to represent superior court judges. In the suit that is currently pending, the special assistant attorney general representing the judges has already charged $385,000. The AG had to seek outside counsel due to the issues involved in this "McCleary-esque" case and the AG's representation of the state. While the bill that came over from the Senate fixed only half of the problem, the striker fixes the entire problem.

(Opposed) The current suit involving judges from Grays Harbor County needs to be viewed in perspective. The suit was filed four months before one of the judges there was stabbed in the courthouse. Grays Harbor courts get less funding than courts in any other county in the state. Washington, as a state, provides less funding to courts than do other states. This bill treats superior court judges differently than all other state officers. Judges will face the Hobbesian choice of shutting the courthouse doors or funding such cases personally. Meanwhile, the AG has other options and could seek a line item in the budget just as with other agencies. Legislators get represented by the AG, and so should judges. There are obstacles to judges asking for pro bono representation. There is no urgency to this bill since the Grays Harbor case is all but settled. Besides, that case is only the second suit in 127 years by judges. The only other one before the current suit involved candles and fodder for horses. The bill upsets balance and comity.