After January 1, 2025, can a small Washington county still ask its elected prosecutor to also serve as the county coroner, or did the 2021 statute end that arrangement?
Plain-English summary
Three small-county prosecuting attorneys (San Juan, Pend Oreille, Columbia) asked AG Bob Ferguson whether their counties could keep using a long-standing arrangement: the prosecuting attorney also performs the duties of county coroner. That arrangement existed because RCW 36.16.030, in its pre-2025 form, made the prosecutor the ex officio coroner in counties under 40,000 people. The 2021 legislature passed Engrossed Substitute House Bill 1326 (Laws of 2021, ch. 127) and rewrote that subsection. As of January 1, 2025, the small-county provision instead allows the county legislative authority to either elect a separate coroner or appoint one. The amendment does not say who can be appointed.
Ferguson concluded that, with the specific ex-officio rule gone, two long-standing prohibitions apply on their own terms: RCW 36.24.170 (a coroner "shall not appear or practice as attorney in any court, except in defense of himself or herself or his or her deputies") and RCW 2.48.200 (no person who holds office as judge, sheriff, or coroner may practice law). Because a prosecuting attorney is by definition practicing law, those two prohibitions disqualify a prosecutor from also serving as coroner. The 1976 AGLO 1976 No. 30, which had reached the opposite result, is no longer good law because it relied on the now-deleted ex-officio mandate; that opinion is overruled to the extent inconsistent.
The legislative history reinforces this. The original 2021 bill required all coroners to be elected. The House substitute briefly preserved an option for the prosecuting attorney to act as ex officio coroner. The Senate amendment that became law deleted that option specifically because, as Senator Kuderer described on the floor, there is "a direct conflict of interest" in the dual role. Reading RCW 36.16.030 to allow the county to put the prosecutor back in the coroner's chair would frustrate that intent.
The opinion also flags but does not decide the constitutional question (Const. art. XI, § 5) of whether the legislature must spell out a dual-duty assignment, and notes the common-law doctrine of incompatible offices does not need to be reached because two statutes resolve the issue.
What this means for you
If you are a small-county legislative authority (under 40,000 population)
You have two clean paths after January 1, 2025: keep the elected coroner office, or designate that no coroner shall be elected and appoint someone to fill the role. The appointee cannot be your elected prosecuting attorney, and cannot be any other practicing attorney whose work would put them in court. Practical pool: a non-attorney with relevant qualifications (deputy sheriff, public-health professional, funeral director with proper licensure, or contract through a neighboring county's coroner or a medical examiner). The opinion does not tell you what qualifications the appointee must have; that is a separate question of statute and county policy.
If you are a small-county prosecuting attorney currently doing both jobs
Stop performing coroner duties on or after January 1, 2025. Continuing to do so would violate RCW 36.24.170 and RCW 2.48.200. Work with your county council to designate a coroner before the deadline so death investigations are not interrupted. Transition planning matters: pending death investigations, evidence custody, transfer of records, and contracts with medical examiners need to land somewhere on the deadline.
If you are a county commissioner planning the appointment
The opinion is silent on whether the appointee must be elected first or merely appointed by the county legislative authority. RCW 36.16.030 as amended says the county legislative authority "may determine that no coroner shall be elected and instead appoint a coroner." The path is appointment, not necessarily election. Build the appointment into your standard ordinance / hiring procedures, and budget for the position separately from the prosecutor's office.
Common questions
Why is this just a small-county issue?
Counties of 40,000 or more elect a separate coroner already. The historical "the prosecutor is also the coroner" rule only ever applied to counties below the population threshold. Larger counties (or those with medical examiners) are unaffected.
What changed on January 1, 2025?
RCW 36.16.030's small-county exception. Before that date, the statute required that "no coroner shall be elected and the prosecuting attorney shall be ex officio coroner" in counties under 40,000. After that date, the same subsection allows the county legislative authority to either elect a coroner or appoint one. The mandate is gone.
Why do RCW 36.24.170 and RCW 2.48.200 matter?
They are the statutes that prohibit a coroner from also practicing law. They have been on the books for decades. They previously took a back seat to the specific "prosecutor is ex officio coroner" rule because that specific rule overrode the general prohibition. With the specific rule gone, the general prohibition applies on its terms.
Doesn't the constitution let the legislature stack offices on one person?
Const. art. XI, § 5 allows the legislature to "prescribe the duties of prosecuting attorneys" and to require certain officers to perform the duties of two or more offices. The opinion notes the issue but does not decide it, because the question is resolved on statutory grounds: the legislature would have to do that explicitly, and it just did the opposite.
What about the doctrine of incompatible offices?
The opinion mentions it but does not rely on it. The common-law doctrine kicks in "in the absence of specific statutory provisions." Here, RCW 36.24.170 and RCW 2.48.200 are specific statutes that resolve the question.
Can a prosecutor act as coroner just for one death case while a permanent coroner is found?
The opinion does not authorize that and the underlying prohibitions do not have a "temporary" exception. The cleanest answer is no. A county facing a transition gap should arrange for a neighboring county's coroner or medical examiner to act, or hire on a short-term contract.
Is AGLO 1976 No. 30 still good law?
No, not as applied to small counties after January 1, 2025. The 1976 opinion read RCW 36.24.170 as compatible with the prosecutor-as-coroner role, but that reading depended on the specific statutory mandate that the legislature has now repealed. The opinion expressly explains that "because the basis of our earlier opinion has changed, our interpretation of RCW 36.24.170 has also changed."
Background and statutory framework
Until 1925, Washington had a more uniform coroner system. The 1925 legislature created the small-county shortcut. RCW 36.16.030 has carried that arrangement forward for a century: in counties under 40,000, the county would not elect a coroner, and the prosecutor would do the job ex officio. The 1976 AG opinion (AGLO 1976 No. 30) said that did not violate the general "no coroner shall practice law" rule because the specific statute trumped the general one.
The 2021 legislature, working through a series of amendments to ESHB 1326, ended the dual role. The Senate amendment that struck the proposed continuation of the ex-officio option was adopted on April 3, 2021. The senate sponsor's floor remarks on the conflict of interest are part of the record.
The two statutes that now do the heavy lifting on this question:
- RCW 36.24.170: "The coroner shall not appear or practice as attorney in any court, except in defense of himself or herself or his or her deputies."
- RCW 2.48.200: "No person shall practice law who holds a commission as judge in any court of record, or as sheriff or coroner..."
The opinion also references RCW 36.28.110 (the parallel rule for sheriffs) and the constitutional grant in Const. art. XI, § 5.
Citations
The plain-meaning approach comes from Washington State Association of Counties v. State and State ex rel. Banks v. Drummond. The harmonization-of-statutes principle comes from Associated General Contractors v. State. The treatment of legislative-history evidence and the bench's deference to a sponsor amendment's stated purpose comes from Nelson v. P.S.C. and Duke v. Boyd. The dual-office-holding incompatibility framework, mentioned but not used, comes from Kennett v. Levine and AGO 2016 No. 7. The avoidance canon for not reaching the constitutional question comes from Tunstall v. Bergeson. State v. Twitchell anchors the rule that practicing law and holding a sheriff/coroner-type commission are mutually exclusive.
Source
- Landing page: https://www.atg.wa.gov/ago-opinions/eligibility-county-prosecuting-attorneys-be-appointed-county-coroner-after-january-1
Original opinion text
Attorney General
CORONER — COUNTIES — APPOINTMENT — PROSECUTING ATTORNEY — STATUTORY AUTHORITY — Eligibility Of County Prosecuting Attorneys To Be Appointed County Coroner After January 1, 2025
RCW 36.16.030 currently requires that county prosecutors in counties with populations of less than 40,000 perform the services of coroner, but effective January 1, 2025, that statute will no longer so require. After January 1, 2025, general statutory prohibitions on coroners practicing law will preclude county prosecuting attorneys from acting as both coroner and prosecutor.
August 22, 2024
The Honorable Amy Vira
San Juan County Prosecuting Attorney
350 Court Street
Friday Harbor, WA 98205
The Honorable Dolly Hunt
Pend Oreille County Prosecuting Attorney
229 S Garden Avenue
Newport, WA 99156-5070
Cite As:
AGO 2024 No. 3
C. Dale Slack
Columbia County Prosecuting Attorney
215 E Clay Street
Dayton, WA 99328
Dear Prosecutors Vira, Hunt, and Slack:
By letter previously acknowledged, you have requested our opinion on the following question:
May a county legislative authority for a county with a population of less than 40,000 appoint the prosecuting attorney to perform the services of the county coroner after January 1, 2025, the effective date of the 2021 amendments to RCW 36.16.030?
BRIEF ANSWER
No. As of January 1, 2025, the prosecuting attorney in a county with a population of less than 40,000 will no longer be statutorily required to act as coroner. In the absence of that statutory requirement, statutory prohibitions on coroners practicing law, contained in RCW 36.24.170 and RCW 2.48.200, would preclude the prosecuting attorney from acting as both coroner and prosecutor after January 1, 2025. Our conclusion is further supported by the legislative history of recent statutory amendments, which indicates that the legislature intended to separate roles of prosecuting attorney and coroner.
BACKGROUND
Your request focuses on the legislature's 2021 amendments to RCW 36.16.030, a statute enumerating the elective county officers in Washington. The 2021 amendments removed the requirement that the prosecuting attorney act as coroner in counties with populations of less than 40,000 people. Although we believe that two other statutes, RCW 36.24.170 and RCW 2.48.200, resolve your question, we provide a brief overview of the 2021 amendments for context. Laws of 2021, ch. 127, §§ 4, 9.
Since approximately 1925, the prosecuting attorney has been ex officio coroner in counties with populations of less than 40,000 people. RCW 36.16.030; Laws of 1925, 1st Ex. Sess, ch. 148, § 2. RCW 36.16.030 currently states:
[I]n every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff, and a county treasurer, except that in each county with a population of less than forty thousand no coroner shall be elected and the prosecuting attorney shall be ex officio coroner.
(Emphasis added.)
In 2021, the legislature passed Engrossed Substitute House Bill 1326, 67th Leg., Reg. Sess. (Wash. 2021), which adopted a variety of provisions relating to coroners and medical examiners. Laws of 2021, ch. 127. Of particular relevance here, the legislature amended RCW 36.16.030 to provide an expiration date for the current requirements relating to county coroners and to provide new requirements effective January 1, 2025. Laws of 2021, ch. 127, §§ 4, 5, 9, 10. Beginning January 1, 2025, in counties with populations of less than 40,000, the coroner will either be elected or be appointed by the county legislative authority. Laws of 2021, ch. 127, §§ 4, 9. Specifically, effective January 1, 2025, RCW 36.16.030, in relevant part, will read:
[I]n every county there shall be elected from among the qualified voters of the county a county assessor, a county auditor, a county clerk, a county coroner, three county commissioners, a county prosecuting attorney, a county sheriff, and a county treasurer, except that in each county with a population of less than forty thousand the county legislative authority may determine that no coroner shall be elected and instead appoint a coroner.
Laws of 2021, ch. 127, §§ 4, 9 (emphasis added). RCW 36.16.030 does not address whom the county may appoint as county coroner.
ANALYSIS
You asked whether a county legislative authority in a county with a population less than 40,000 may appoint the prosecuting attorney to perform the services of the county coroner after January 1, 2025. Your question calls for our construction of RCW 36.16.030 and the statutes governing county coroners, found in RCW 36.24. Based on RCW 36.16.030 and RCW 36.24.170, we conclude that in a county with a population of less than 40,000, a prosecuting attorney may not act as coroner after January 1, 2025. In the absence of the statutory requirement for the prosecuting attorney to act as coroner, statutory prohibitions on coroners practicing law would preclude the prosecuting attorney from performing both roles. Our conclusion is further supported by the legislative history of the 2021 amendments.
We begin the inquiry by considering what the legislature intended when it amended RCW 36.16.030 to remove the requirement that prosecuting attorneys act as ex officio coroners in counties with populations of less than 40,000. The goal of statutory interpretation is to determine and give effect to the legislature's intent. Wash. State Ass'n of Cntys. v. State, 199 Wn.2d 1, 10, 502 P.3d 825 (2022). To do so, we start with the plain language of the text, considering the context of the statutes or provisions at issue, amendments to the provisions, related provisions, and the overall statutory scheme. State ex rel. Banks v. Drummond, 187 Wn.2d 157, 170, 385 P.3d 769 (2016).
RCW 36.16.030 (effective January 1, 2025) does not address whether the county legislative authority in a county with a population of less than 40,000 may appoint the prosecuting attorney to continue to perform the duties of coroner. Because the plain language of that statute does not address your question, we consider related statutes to help resolve the question. See Drummond, 187 Wn.2d at 170.
RCW 36.24.170 prohibits coroners from practicing law. RCW 36.24.170 provides: "The coroner shall not appear or practice as attorney in any court, except in defense of himself or herself or his or her deputies." RCW 2.48.200 also prohibits coroners from practicing law, stating that "[n]o person shall practice law who holds a commission as judge in any court of record, or as sheriff or coroner . . .". We presume that the legislature does not intend to create inconsistent statutes, and so we seek to interpret statutes harmoniously. Associated Gen. Contractors of Wash. v. State, 544 P.3d 486, 496 (Wash. 2024). Accordingly, we strive to interpret RCW 36.16.030 in harmony with RCW 36.24.170 and RCW 2.48.200.
In 1976, our office opined that RCW 36.24.170 does not prohibit the prosecuting attorney in a county with a population of less than 40,000 from performing the duties of coroner. AGLO 1976 No. 30. In reaching our conclusion, we relied on RCW 36.16.030's requirement that the prosecuting attorney perform the coroner's duties in a county with a population of less than 40,000. AGLO 1976 No. 30, at 2-3. Under RCW 36.16.030, one of the prosecuting attorney's statutory duties was to act as coroner. AGLO 1976 No. 30, at 2-3. But, as previously explained, the legislature has since amended RCW 36.16.030 (effective January 1, 2025) to remove the requirement that prosecuting attorneys in counties with less than 40,000 people act as coroner. Laws of 2021, ch. 127, §§ 4, 9. As a result, because the basis of our earlier opinion has changed, our interpretation of RCW 36.24.170 has also changed.
Interpreting RCW 36.16.030 (effective January 1, 2025) to allow a county to appoint a prosecuting attorney to act as coroner would conflict with the statutory prohibitions on a coroner practicing law. Without the express statutory requirement for the prosecuting attorney to act as coroner, the plain language of RCW 36.24.170 and RCW 2.48.200 would preclude the prosecuting attorney from acting as both prosecuting attorney and coroner. See State v. Twitchell, 61 Wn.2d 403, 406-07, 378 P.2d 444 (1963) (noting that a deputy prosecutor would be disqualified from practicing law if they accepted a commission as deputy sheriff under RCW 36.28.110 and RCW 2.48.200).
Our conclusion is also supported by the legislative history behind the 2021 amendments. The sequential versions of the bill, amendments, and testimony demonstrate the legislature's intent to separate the roles of prosecuting attorney and coroner, and to withdraw its authorization for the prosecuting attorney to perform the coroner's duties. The original bill proposed that all counties elect their coroner, which would separate the prosecuting attorney and the coroner. H.B. 1326, 67th Leg., Reg. Sess. (Wash. 2021) (as introduced). Then, the House passed a substitute bill, which authorized the county legislative authority of counties with populations of less than 40,000 to "determine that no coroner shall be elected and instead appoint a coroner or direct the prosecuting attorney [to] serve as ex-officio coroner." Engrossed Substitute H.B. 1326, 67th Leg., Reg. Sess. (Wash. 2021). Once in the Senate, Senator Kuderer introduced and the Senate adopted an amendment to "[r]emove[] the option for the prosecuting attorney to serve as ex-officio coroner." Senator Kuderer testified that "one of the reasons that the committee striking amendment was adopted, because that amendment removes the ability of a county to appoint a prosecuting attorney to act in the capacity of a coroner and that is because there is a direct conflict of interest in that." Although "[o]ne legislator's comments from the floor ordinarily are not determinative of legislative intent," courts presume that legislators understand the meaning of the amendments that they propose. Nelson v. P.S.C., Inc., 2 Wn.3d 227, 241, 535 P.3d 418 (2023) (citing Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). Interpreting RCW 36.16.030 as allowing a county to appoint a prosecuting attorney to act as coroner would fundamentally frustrate the legislature's intent as expressed during the legislative process, and such an approach would be contrary to our goal of advancing the legislature's intent. See Nelson, 2 Wn.3d at 237-39 (rejecting interpretation that would frustrate the legislature's intent).
Your request mentions the doctrine of incompatible offices. The common-law doctrine of incompatible offices prohibits someone from simultaneously holding two incompatible offices. AGO 2016 No. 7, at 3. "Offices are incompatible when the nature and duties of the offices are such as to render it improper, from consideration of public policy, for one person to retain both." Kennett v. Levine, 50 Wn.2d 212, 216, 310 P.2d 244 (1957). Importantly, the doctrine applies "in the absence of specific statutory provisions governing the positions in question." AGLO 1973 No. 90, at 3. Here, both RCW 36.24.170 and RCW 2.48.200 prohibit a coroner from practicing law. Therefore, we need not apply the common law doctrine of incompatible offices to answer your question.
Your request could be interpreted as asking whether a county has the authority to assign substantive duties to the prosecuting attorney in addition to their statutory duties, or to require the prosecuting attorney to exercise the powers and perform the duties of both the prosecuting attorney and the county coroner. The Washington Constitution delegates to the legislature the authority to prescribe the duties of prosecuting attorneys and to require certain officers to "exercise the powers and perform the duties of two or more officers." Const. art. XI, § 5. Although your request could potentially implicate issues related to article XI, section 5 of the Washington Constitution, we do not believe it is necessary to address them because we resolve your question on statutory grounds. Like courts, we generally avoid reaching constitutional issues where the issues can be resolved on other grounds. Tunstall ex rel. Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000). And here, we are able to resolve the inquiry based on statutory interpretation, and therefore do not reach any potential constitutional issues.
We want to emphasize that Attorney General Opinions answer broad legal questions and are not intended to resolve any particular case. This opinion expresses no view on what the remedy should be, if any, if the principles discussed here were not followed in a particular case. Such issues are beyond the scope of this opinion and might turn on a variety of facts specific to the case.
In conclusion, RCW 36.24.170 and RCW 2.48.200 will prohibit a prosecuting attorney from performing the services of the county coroner when the 2021 amendments to RCW 36.16.030 go into effect on January 1, 2025.
We trust that the foregoing will be useful to you.
ROBERT W. FERGUSON
Attorney General
KIERA MILLER
Assistant Attorney General