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AGO 1979 No. 14 - June 29, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

JUDGES ‑- SUPERIOR COURT ‑- SOCIAL SECURITY ACT ‑- SALARY BASE FOR OASI CONTRIBUTIONS AND COVERAGE

It is the entire statutory salary of the state's superior court judges, and not merely that portion which is paid by the state, which meets the definition of "wages" in RCW 41.48.020(1) and, as a result, constitutes those judges' proper salary or compensation base for federal social security (OASI) contributions and coverage under the pertinent provisions of chapter 41.48 RCW.

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                                                                   June 29, 1979

Honorable Eugene Wiegman
Commissioner
Employment Security Department
212 Maple Park
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1979 No. 14

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            For the purposes of federal social security coverage of state superior court judges, does the term "wages," as defined in RCW 41.48.020, encompass the full statutory salary payable to such judges under RCW 2.08.090 or, instead, does the term only cover that portion which is payable by the State under Article IV, § 13 of the state constitution?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            We begin by noting the provisions of Article IV, § 13, supra.  This section of our state constitution provides, in material part, as follows:

             [[Orig. Op. Page 2]]

            ". . . The judges of the supreme court and judges of the superior courts shall severally at stated times, during their continuance in office, receive for their services the salaries prescribed by law therefor, which shall not be increased after their election, nor during the term for which they shall have been elected.  The salaries of the judges of the supreme court shall be paid by the state.  One‑half of the salary of each of the superior court judges shall be paid by the state, and the other one‑half by the county or counties for which he is elected.  In cases where a judge is provided for more than one county, that portion of his salary which is to be paid by the counties shall be apportioned between or among them according to the assessed value of their taxable property, to be determined by the assessment next preceding the time for which such salary is to be paid."

            Largely because of this provision the superior court judges have variously been held by our state supreme court to be both state and county officers.  Specifically, they have been held to be state officers for the purposes of being subject to an original action in quo warranto under Article IV, § 4 of the state constitution, State ex rel. Edelstein v. Foley, 6 Wn.2d 444, 107 P.2d 901 (1940), and for the purpose of their election under Article VI, § 8,State ex rel. Dyer v. Twichell, 4 Wash. 715, 31 Pac. 19 (1892).  But because they are elected on a county or district basis and, under Article IV, § 13,supra, receive half of their salaries from their respective counties, they have also been held to be county officers.  See,State ex rel. Lawler v. Grant, 178 Wash. 61, 34 P.2d 355 (1934); State ex rel. Pischue v. Olson, 173 Wash. 60, 21 P.2d 516 (1933); andIn Re Salary of Superior Court Judges, 82 Wash. 623, 144 Pac. 929 (1914), all of which, however, really involve nothing more than the legitimacy of using county funds to pay for portions of their salaries.

            Following the enactment of chapter 184, Laws of 1951, under which federal social security coverage was made available to state, county and municipal officers and employees within the state of Washington, a question was presented to this office regarding the proper characterization of, inter alia, superior court judges in relation to such coverage.  In AGO 47-58 No. 121, copy enclosed, we responded by saying:

             [[Orig. Op. Page 3]]

            "All of the members of the judges retirement act including both supreme court judges and superior court judges can be covered by OASI as state employees, or the superior court members of the retirement system can be covered alone as county-employee members of the retirement system under the existing statutes."

            Thereafter, in accordance with that opinion, a referendum election was held which resulted in coverage of all superior court judges as state officers only and not, as well, as county officers.  As a consequence, OASI contributions, both by the employer and the employees, have since only been made on the basis of that portion of the judges' salaries which is paid by the State.  Conversely, no such contributions have been made by the respective counties in paying their portion under RCW 2.08.100, a statutory provision which implements Article IV, § 13,supra, and reads as follows:

            "The county auditor of each county shall draw his warrant on the treasurer of such county on the first Monday of each month for the amount of salary due for the previous month from such county to the judge of the superior court thereof, and said warrant shall be paid by said treasurer out of the salary fund of said county:  PROVIDED, That no such warrant shall be issued until the judge who is to receive the same shall have made an affidavit, in the manner provided by law, that no cause in his court remains pending and undecided contrary to the provisions of RCW 2.08.240 and of section 20, Article 4, Constitution of the state of Washington."

            Moreover, in the past this has worked satisfactorily since the maximum salary level for social security contributions under federal law has never before exceeded 50% of the statutory salary of the judges.  Starting with July of 1979, however, this will no longer be so.  Even though the superior court judges' salaries will also go up, as of that time, as a consequence of recently enacted state legislation,1/ the maximum level for social security contributions under new  [[Orig. Op. Page 4]] federal legislation will then, nevertheless, exceed 50% of those salaries.2/   Therefore, if only the State's share of the judges' salaries is deemed to constitute their salary base for OASI contributions and coverage, the judges will then and thereafter be less than fully covered.

            With all the foregoing in mind, we turn, now, to the definition of "wages" in RCW 41.48.020 which, as referred to in your question, reads as follows:

            ". . .

            "(1) 'Wages' means all remuneration for employment as defined herein, including the cash value of all remuneration paid in any medium other than cash, except that such term shall not include that part of such remuneration which, even if it were for 'employment' within the meaning of the federal insurance contributions act, would not constitute 'wages' within the meaning of that act;

            ". . ."

            What seems to us to be important to note, in reading this definition, is that it makes no distinction between one or another of several sources of remuneration which may be payable to a given state, county or municipal officer or employee.  It is also well to note, in considering your question, that even though they have been variously referred to as both state and county officers, superior court judges do not truly hold two separate offices.  They are not, like some public employees, persons who simultaneously hold one position in state employment and another in the employment of a county or municipality.  Instead, those judges occupy but a single office‑-albeit one which has been labelled as a state office for some purposes and as a county office for others; e.g., AGO 57-58 No. 121, supra.

            Once these two points are understood, the proper answer to your question seems obvious.  It is the entire statutory salary of the superior court judges, and not merely that portion which is paid by the State, which meets the definition of "wages" in RCW 41.48.020(1),supra, and  [[Orig. Op. Page 5]] as a result, constitutes the judges' proper salary or compensation base for OASI contributions and coverage under the pertinent provisions of chapter 41.48 RCW.  And, therefore, it will henceforth not be permissible or proper to look only to the State's portion of those judges' salaries in applying the provisions of the applicable federal and state statutes relating to social security coverage‑-at least so long as the federal statutory maximum compensation level for social security coverage continues to exceed 50% of the statutory salary of the superior court judges.

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

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General


JOSEPH M. LITTLEMORE
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 2.08.090 as amended by § 6, chapter 255, Laws of 1979, 1st Ex. Sess.

2/Accord, 42 USC 430(c) as amended by Act of December 20, 1977, P.L. 95-216, Title I, § 103(b), 91 Stat. 1513.

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