In the Matter of the Salary of the JUVENILE DIRECTOR
No. 44028
En Banc
June 24, 1976
The defendants claim that plaintiff was negligent in failing to exercise ordinary care by failing to keep a proper lookout to avoid a collision and that such negligence was a proximate cause of her injuries and damages, and further was a proximate cause of damages to the garbage truck . . .
Affirmed on defendants’ appeal and on plaintiff‘s cross-appeal.
STAFFORD, C.J., and ROSELLINI, HUNTER, HAMILTON, WRIGHT, UTTER, and BRACHTENBACH, JJ., concur.
Petition for rehearing denied September 16, 1976.
Hamblen, Gilbert & Brooke, P.S. (William F. Nielsen, of counsel), for respondent.
UTTER, J.—The Lincoln County Board of Commissioners appeals from a writ of mandate issued by the Superior Court directing them to increase the salary of the Lincoln County Director of Juvenile Services. The matter was heard by a superior court judge from a nearby county as an order directing appellants to show cause why the writ should not issue. In its appeal the Board questions whether, in the circumstances of this case, the respondent Superior Court properly exercised its inherent power to determine the salary of the director. Finding that respondent has failed to meet its burden of proof, we reverse the entry of the writ of mandate.
The salary of the Director of Juvenile Services for Lincoln County is provided by a state program known as the “Juvenile Subsidy Program.” Under this program, the county is responsible for the nonsalary expenses of the director‘s office. The county pays the director‘s salary, but is fully reimbursed by the State. The director receives the benefit of all pay raises given state employees, as distinguished from county employees.
When the director was hired in 1973, his initial salary was established by agreement between the State, County, Superior Court, and the director. In the year following his hiring and prior to trial, his salary was increased from $9,600 to $10,560. This increase in the director‘s compensa-
At the hearing, the Superior Court Judge for Lincoln County testified he arrived at the proposed salary of $12,000 by examining the salaries of other juvenile officers in other counties in Washington. In addition, the chairman of the salary and job classification committee of the Washington Association of Juvenile Court Directors testified that directors in counties of comparable size to Lincoln County should receive a $12,500 minimum starting salary. Relying on this determination, the superior court judge stated that he believed $12,000 was fair and reasonable compensation for the position. No showing was made that other qualified employees could not be obtained at the salary established by the county commissioners. In 1974, when the director was hired, 13 applicants sought the position. There was also no evidence of the extent to which the functioning of the Superior Court would be impaired if the director‘s salary were not increased.
In his oral opinion, the trial judge stated that inasmuch as the Superior Court had the authority to appoint its juvenile probation officer, this authority included the right to reach agreement with that employee on the salary to be paid. He then concluded that if the Board refused to pay the salary agreed upon, if reasonable, the Superior Court was deprived of its statutory authority to appoint its Juvenile Director. Formal findings of fact entered later by the trial court found the proposed salary reasonable. The trial judge stated in conclusion of law No. 3:
To allow the Board of County Commissioners of Lincoln County, Washington, to control Court employees by means of regulating salaries amounts to an unreasonable control over the judicial branch of government by the legislative branch of government.
RCW 13.04.040 which appears to direct or authorize the Board of County Commissioners to fix the salary of the probation officer amounts to control which is an unconstitutional violation of the inherent powers of the judicial branch of the government delegated exclusively to the Courts of this State by Article IV, Section 1, of the Washington State Constitution and further is a violation of the doctrine of separation of powers.
I. STATUTORY BASIS FOR THE SUPERIOR COURT‘S ORDER
Counsel for respondent Superior Court, relying on Norman v. Van Elsberg, 262 Ore. 286, 497 P.2d 204 (1972), argues the burden of proof is on appellants, the county commissioners, to show the salary increase is unreasonable before it can deny the salary request of the Superior Court. Upholding the right of the court to establish salaries without preliminary approval of the legislative branch of government, the court in Norman rested its decision on a particular state statute. That statute provided for the appointment of juvenile counselors at a salary designated by the judge and “approved” by the local legislative body. There, as in numerous other cases construing very similar statutory provisions, approval was held to impose upon the legislative body the burden of showing that the judge‘s action in setting the salary was unreasonable, Norman v. Van Elsberg, supra at 291, or arbitrary and capricious, see sall v. Pima County” cite=“106 Ariz. 266” parallel=“475 P.2d 250” court=“Ariz.” date=“1970“>Birdsall v. Pima County, 106 Ariz. 266, 475 P.2d 250 (1970); Mann v. County of Maricopa, 104 Ariz. 561, 456 P.2d 931 (1969); Powers v. Isley, 66 Ariz. 94, 183 P.2d 880 (1947); Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Bass v. County of Saline, 171 Neb. 538, 106 N.W.2d 860 (1960); Commissioners Court v. Martin, 471 S.W.2d 100 (Tex. Civ. App. 1971); but see Morgan County Comm‘n v. Powell, 292 Ala. 300, 293 So. 2d 830 (1974).
Our statute governing the appointment and compensation of juvenile court officers differs significantly from the provisions construed in Norman v. Van Elsberg, supra, and the cases cited above.
II. CONSTITUTIONAL BASIS FOR THE SUPERIOR COURT‘S ORDER
The validity of respondent‘s action, then, must rest on the proposition, adopted by the trial court, that the act of
Any inquiry into the propriety of court action to compel funding of its own functions must begin with an examination of the theoretical underpinnings of the doctrines of separation of powers, checks and balances, and inherent judicial power. The constitutions of the nation and the states are imbued with these and other principles of government developed during the revolutionary era. Prominent in the political thought of two centuries ago, these
The Development of the Separation of Powers Doctrine.
Although a concept with a long history, the first modern expression of the doctrine of separation of governmental powers occurred in eighteenth century England and France. See Ervin, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108 (1970); Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393 (1922). John Locke, Henry St. John, Viscount Bolingbroke, and Baron de Montesquieu were influential proponents of their individual versions of the doctrine. Its essence was described by Montesquieu:
All would be lost if the same man or the same body of leaders, either of the nobles or of the people, exercised these three powers: that of making laws, that of executing the public resolutions, and that of judging criminal and civil cases.
W. Gwyn, The Meaning of the Separation of Powers 110 (1965). As the doctrine subsequently developed it combined with other ideas complementing and modifying the pure separation of powers principle.
The most important of these modifications lies in the amalgamation of the doctrine with the theory of mixed government, or with its later form, the theory of checks and balances. . . . from an analytical point of view the main consideration is that these theories were used to import the idea of a set of positive checks to the exercise of power into the doctrine of the separation of powers. That is to say that each branch was given the power to exercise a degree of direct control over the others by authorizing it to play a part, although only a limited part, in the exercise of the other‘s functions. Thus the executive branch was given a veto power over legislation, or
M.J.C. Vile, Constitutionalism and the Separation of Powers 18-19 (1967).
With the growth of revolutionary fervor in the American colonies, the theory of the balanced constitution was broken down into its component parts, so that by 1776 separation of powers was being advanced as the only coherent constitutional theory upon which an alternative to colonial forms of government could be based. M.J.C. Vile, supra at 126. However, the state constitutions framed in 1776 and 1777, some expressly embodying the doctrine, produced undesired legislative supremacy and a realization of the shortcomings of the doctrine standing alone. Thomas Jefferson noted as a “capital defect” of the Virginia Constitution that “[a]ll the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating [of] these in the same hands is precisely the definition of despotic government.” T. Jefferson, Notes on the State of Virginia 120 (W. Peden ed. 1954). This experience, coupled with consistent adherence by John Adams and others to the notion of balanced government accomplished by a mixed constitution, see W. Gwyn, supra at 116-23, made the notion of “checks and balances” again acceptable among the revo-
Because of its generality, the doctrine of separation of powers does not stand as a definitive guide to intergovernmental relations. It is, nevertheless, “the dominant principle of the American political system.” G. Wood, supra at 449. Hence, like other broad constitutional provisions, such as the commerce and due process clauses, the doctrine has been often invoked by the courts and given more definite content in the process. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1880); Myers v. United States, 272 U.S. 52, 71 L. Ed. 160, 47 S. Ct. 21 (1926); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 96 L. Ed. 1153, 72 S. Ct. 863, 26 A.L.R.2d 1378 (1952); United States v. Brown, 381 U.S. 437, 14 L. Ed. 2d 484, 85 S. Ct. 1707 (1965); New York Times Co. v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (Black, J., concurring); United States v. Nixon, 418 U.S. 683, 704, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). The constitutions of the several states, inheritors of the federal constitutional legacy, also embody the principle. Zylstra v. Piva, 85 Wn.2d 743, 754, 539 P.2d 823 (1975) (Utter, J., concurring); see, e.g., State ex rel. Brotherton v. Blankenship, 214 S.E.2d 467 (W. Va. 1975); Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975); Department of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 334 A.2d 514 (1975); MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972). Despite its generality, the separation of powers doctrine “is currently notable not for its demise, but . . . for its extraordinary resilience.” Frohnmayer, The Separation of Powers: An Essay on the Vitality of a Constitutional Idea, 52 Ore. L. Rev. 211, 216 (1973).
The Development of the Concept of Checks and Balances.
The evolution of constitutional ideas during the revolutionary period had an important impact on the American notion of the role of the judiciary. While some form of separation of powers is a prerequisite for judicial
[I]t is in the Federal [Constitutional] Convention, with its highly developed conception of the relation between the separation of powers and checks and balances, that we find the evidence of the belief that judges must have the power to check the legislature by limiting it to its proper functions. Here is the solution to the problem of the use by the legislature of “the forms of legislation” to achieve improper ends which had puzzled the early constitutionalists. Should the executive veto be insufficient to restrain the legislature then the courts would be able to declare unconstitutional acts void. The evidence of the blossoming of this view of judicial power in the Convention and in the Federalist is most impressive.
M.J.C. Vile, Constitutionalism and the Separation of Powers 158 (1967). “The department of government which benefited most from [the] new, enlarged definition of separation of powers was the judiciary.” G. Wood, supra at 453-54.
Both history and uncontradicted authority make clear that “‘[i]t is emphatically the province and duty of the judicial department to say what the law is.‘” United States v. Nixon, supra at 703, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803), even when that interpretation serves as a check on the activities of another branch or is contrary to the view of the constitution taken by another branch. Powell v. McCormack, 395 U.S. 486, 549, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969); Tacoma v. O‘Brien, 85 Wn.2d 266, 534 P.2d 114 (1975). As stated in Baker v. Carr, 369 U.S. 186, 211, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962):
Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.
Thus, even in enforcing the separation of powers, courts must intervene in the operation of other branches. This is
This overlapping of functions allows for the scheme of checks and balances which, as noted above, evolved side-by-side with and in response to the separation of powers-concept. Legislative control over appropriations, see
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
See O‘Coin‘s, Inc. v. Treasurer, supra.
Inherent Judicial Power: A Constitutional Imperative.
The spirit of reciprocity and interdependence requires that if checks by one branch undermine the operation of another branch or undermine the rule of law which all branches are committed to maintain, those checks are improper and destructive exercises of the authority. A recent study of court finance and separation of powers suggests that intragovernmental checks which are not sufficiently timely or direct to allow the other branch an opportunity to carry out its constitutional functions are improper. C. Baar, Separate but Subservient: Court Budgeting in the American States 153 (1975). As examples of such indirect checks, Professor Baar cites the 1965 Congressional decision to exclude United States Supreme Court Justices from the general salary increases for federal judges. Such fiscal control may be improperly exercised when direct means are avail-
The reason for the independence of the judiciary . . . and incidentally of juries, is not that they perform a judicial function, an expression to which it is very difficult to give a precise meaning. The argument for the independence of the judge is that in performing his function of rule-interpretation he should not be subject to pressure that would cause him to vary the meaning of the rules to suit the views of the persons affected by them, and that in ascertaining “facts” he will not be influenced by considerations of expediency. It is an essential element in the maintenance of that stability and predictability of the rules which is the core of constitutionalism.
M.J.C. Vile, Constitutionalism and the Separation of Powers 328-29 (1967). See also National Conference of Court Administrators and Conference of Chief Justices, Statement of Principles: The Need for Independence in Judicial Administration, 50 Judicature 129 (1966). “Our sense of justice tells us that a court is not free if it is under financial
While courts must limit their incursions into the legislative realm in deference to the separation of powers doctrine, separation of powers also dictates that the judiciary be able to insure its own survival when insufficient funds are provided by the other branches. To do so, courts possess inherent power, that is, authority not expressly provided for in the constitution but which is derived from the creation of a separate branch of government and which may be exercised by the branch to protect itself in the performance of its constitutional duties.
It is axiomatic that, as an independent department of government, the judiciary must have adequate and sufficient resources to ensure the proper operation of the courts. It would be illogical to interpret the Constitution as creating a judicial department with awesome powers over the life, liberty, and property of every citizen while, at the same time, denying to the judges authority to determine the basic needs of their courts as to equipment, facilities and supporting personnel.
O‘Coin‘s, Inc. v. Treasurer, 362 Mass. 507, 287 N.E.2d 608, 611-12 (1972). The doctrine‘s purpose is “to preserve the efficient and expeditious administration of Justice and protect it from being impaired or destroyed.” Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 53, 274 A.2d 193 (1971), cert. denied, 402 U.S. 974, 29 L. Ed. 2d 138, 91 S. Ct. 1665 (1971).
The inherent power of the judiciary to compel funding of its own functions is only one of many forms that power may take. Other uses of a court‘s inherent power include the ability to punish for contempt, see Wood v. Georgia, 370 U.S. 375, 380, 8 L. Ed. 2d 569, 82 S. Ct. 1364 (1962); Mead School Dist. 354 v. Mead Educ. Ass‘n, 85 Wn.2d 278, 534 P.2d 561 (1975); to insure a fair criminal trial, see Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966); to appoint counsel for a criminal defendant, see Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55, 84 A.L.R. 527 (1932); to grant bail, see State ex rel. Syverson v. Foster, 84 Wash. 58, 146 P. 169 (1915); to review actions of public officials, see Pettit v. Board of Tax Appeals, 85 Wn.2d 646, 538 P.2d 501 (1975); to compel attendance of witnesses and the production of evidence, see State ex rel. Haugland v. Smythe, 25 Wn.2d 161, 169 P.2d 706, 165 A.L.R. 1295 (1946); to regulate practice of law, see State v. Cook, 84 Wn.2d 342, 525 P.2d 761 (1974); In re Patton, 86 N.M. 52, 519 P.2d 288 (1974); to control photography in court, see Ex parte Sturm, 152 Md. 114, 136 A. 312 (1927); to honor letters rogatory, see Ex parte Taylor, 110 Tex. 331, 220 S.W. 74 (1920). See also New York Times Co. v. United States, 403 U.S. 713, 752 n.3, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (Burger, J., dissenting); In re Surcharge of County Comm‘rs, 12 Pa. D. & C. 471, 481-83 (C.P. Lackawanna County 1928); Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. 1 (1974).
The proposition that courts possess an implied power to compel the expenditure of public funds for their own operation is not a recent innovation. In 1838 the Supreme Court of Pennsylvania upheld the authority of a trial court to sequester a jury and require the county commissioners to pay the expenses incurred. Commissioners v. Hall, 7 Watts 290 (Pa. 1838). The court stated, at page 291:
It is the undoubted duty of the court to prescribe the manner of [a juror‘s] treatment and keeping; and it must sometimes occasion unusual expense. . . . [This cost] must be at the public charge, for it is as much a part of the contingent expenses of the court, as is the price of the fire wood and candles consumed in the court room.
See Hall v. Washington County, 2 Iowa 473 (1850); Carpenter v. County of Dane, 9 Wis. 274 (1859) (compensation of counsel appointed by court for indigent). In the case State ex rel. Howard v. Smith, 15 Mo. App. 412 (1884), the court issued a writ of mandamus to the city auditor to pay court expenses for a janitor. The court based its decision on the separation of powers doctrine:
The legislative, judicial, and executive departments of the government are distinct. . . . The legislature raises and applies the revenue, and thus holds the public
purse; but, though it possesses the larger share of power, it is no more a representative of the sovereign power than are either of the other departments; and the courts will always so interpret legislative enactments as to preserve the proper independence of the judiciary and the executive. Where a deficiency of public accommodation requires an expenditure by a court, it must be at the public charge . . .
State ex rel. Howard v. Smith, supra at 422. In 1886 a New York court declared “there is an inherent power of the court . . . to incur such expense as may judicially be determined to be necessary in cases of exigency, to maintain authority, punish offenders, and prevent the miscarriage of justice.” People ex rel. Cole v. Board of Supervisors, 46 N.Y. 299, 300 (1886). This inherent judicial power has been often exercised and remains an active legal principle.3 See J. Carrigan, Inherent Powers of the Courts (National College of the State Judiciary 1973); Inherent Power of Court to Compel Appropriation or Expenditure of Funds for Judicial Purposes, Annot., 59 A.L.R.3d 569 (1974).
Despite this attention, the application of the principle of inherent power as it applies to the judiciary is not yet fully developed. Moreover, a recent examination of the effectiveness and impact of lawsuits based on the principle concluded that such excursions outside the normal political process could have an adverse effect on working relations
The Balance of Autonomy and Reciprocity in Judicial Financing.
By its nature, litigation based on inherent judicial power to finance its own functions ignores the political allocation of available monetary resources by representatives of the people elected in a carefully monitored process. See generally Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964); Mahan v. Howell, 410 U.S. 315, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973); Gaffney v. Cummings, 412 U.S. 735, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973). Supreme Courts, obviously, are not composed of judges elected in a proportionally representative manner. The unreasoned assertion of power to determine and demand their own budget is a threat to the image of and public support for the courts. In addition, such actions may threaten, rather than strengthen, judicial independence since involvement in the budgetary process imposes upon the courts at least partial responsibility for increased taxes and diminished funding of other public services. Those groups whose interests are adversely affected, legitimately may respond with standard political sanctions, including threats of impeachment, tighter control over judicial selection, and opposition to the individual judge who initiates budgetary intervention. Alternatively, less drastic and more permanent solutions to problems of court finance are available.4
The judiciary is isolated from the opinion gathering technique of public hearings as well as removed from politically sensitive, proportionately elected representatives. By in effect initiating and trying its own lawsuits, the judiciary‘s image of impartiality and the concomitant willingness of the public to accept its decisions as those of a fair and disinterested tribunal may be severely damaged.5
If separation of powers has as a basic element the preservation of the rule of law, court decisions must not be biased in favor of court funding. This admonition applies with equal vigor to the exercise of executive or legislative discretion in such a way that it appears to create a bias in favor of those branches, to the detriment of the judiciary.
These considerations, as well as recognition that inherent power derives from the need to protect the functioning of an independent branch, have led courts to set a
However, as noted in Carlson v. State ex rel. Stodola, supra at 638-39, when courts decide to act on their own behalf, the citizenry is the final arbiter of interbranch disputes. In that case, the court directed the county to pay increased sums for court personnel and operations, but also stated “there comes a time when a judge or any other public official must make an accounting to the voters for his actions, if arbitrary, extravagant or not in the public interest, and that is true of . . . any judge . . . [or] the one who exercises the appointing power.” The accountability of every public official is a practical strain in the constitutional thought of this country from the earliest times. “The only true corrective for the abuse of constitutional power, said Jefferson, is the elective power of the people . . .” M.J.C. Vile, supra at 166. While this statement reflects Jefferson‘s view that checks and balances were unnecessary since a frequent vote of the people would assure the independence of governmental branches, it also clearly points to the electorate as the final arbiter in interbranch disputes. Jefferson‘s philosophy is reflected in the provisions of state and federal constitutions by which executive,
The electoral power of the people is not the primary reason for requiring courts to fully support and clearly state the justifications for their exercise of inherent power. As an element in the administration of justice, the use of overt force is largely latent now. Courts infrequently find it necessary to enforce their decrees by coercion. While the enforcement capability must remain viable, public sentiment is an essential ingredient of compliance with court orders. “Indeed it is indispensable, for a system of law based entirely on coercion without any degree of popular acceptance would be too insecure to provide stability and permanence.” P. Fitzgerald, Salmond on Jurisprudence 89 (12th ed. 1966).
Hence, it is incumbent upon courts, when they must use their inherent power to compel funding, to do so in a manner which clearly communicates and demonstrates to the public the grounds for the court‘s action. This can be accomplished by imposing on the judiciary the highest burden of proof in civil cases when courts seek to exercise their inherent power in the context of court finance. See, e.g., In re Estate of Reilly, 78 Wn.2d 623, 629, 479 P.2d 1, 48 A.L.R.3d 902 (1970); Bland v. Mentor, 63 Wn.2d 150, 154-55, 385 P.2d 727 (1963); Holmes v. Raffo, 60 Wn.2d 421, 426, 374 P.2d 536 (1962). Lacking clear, cogent, and convincing proof of a reasonable need for additional funds, it is unlikely the court would be willing to use its contempt power to enforce compliance with its fiscal determination. Thus, in circumstances where courts have been unable to build a convincing case, compliance with their financing orders has been problematic.6 “[W]hile the Constitution has made the
In the present controversy, there is a fundamental failure of proof by respondent Superior Court. No evidence in the record supports by a preponderance of the evidence—let alone by a clear, cogent, and convincing showing—respondent‘s determination that the salary paid to the Director of Juvenile Services was so inadequate that the court could not fulfill its duties. Neither does the record show that an increase in salary was reasonably necessary for the efficient administration of justice. See In re Haberstroh, 20 Pa. Cmwlth. 1, 340 A.2d 603 (1975). Lacking such proof, there is no basis for the exercise of inherent power in the circumstances of this case, and respondent‘s attempt to do so imposed an improper check on the function of the legislative branch of government. No issue was raised by the parties regarding the Superior Court‘s inability to perform a constitutionally-mandated function. Likewise, no issue was raised regarding the nature of the proceedings which brought this case before the Superior Court.
Judgment reversed.
HUNTER, HAMILTON, BRACHTENBACH, and HOROWITZ, JJ., concur.
STAFFORD, C.J. (concurring)—I agree with the majority
While the burden of proof is an important issue in the overall consideration of “inherent power” it does not change the result in this case. Thus, I concur with the one reservation.
ROSELLINI, WRIGHT, and BRACHTENBACH, JJ., concur with STAFFORD, C.J.