Derting v. Walker

SHEPARD, Chief Justice. This is an appeal from a summary judgment granted in favor of defendant Walker in an action seeking to require Walker to account for, and reimburse Kootenai County for, all monies earned by him in the contracts with various municipalities wherein Walker would prosecute misdemeanors on behalf of the municipalities. We affirm. At the time Walker assumed the duties of prosecuting attorney of Kootenai County, Idaho, in 1978, the office was a part-time position, and continuing the practice of his predecessors Walker made agreements with various municipalities in Kootenai County to prosecute misdemeanors. In 1979 the position of Kootenai County Prosecuting Attorney was declared to be a full-time position: 31-3113. Contracted duties of prosecuting attorneys with cities. — The prosecuting attorneys in the following counties are required to devote full time to the discharge of their duties: Bannock, Bonneville, Canyon, Elmore, Kootenai, Latah, Twin Falls. With the unanimous approval of the board of county commissioners, and with the consent of the prosecuting attorney, the prosecuting attorney may contract with any city within [1057] the county to prosecute nonconflicting misdemeanors in those counties where the prosecuting attorneys are required to devote full time to the discharge of their duties. Pursuant to the statute, the Kootenai County Commissioners promulgated three resolutions (1979, 1981 and 1985), authorizing Walker to “contract with any city within the county to prosecute non-conflicting misdemeanors in a manner contemplated by I.C. § 31-3113,” requiring Walker to pay various amounts to the county for the use of county facilities, and requiring a percentage of all monies collected pursuant to those contracts to be paid to deputy prosecutors, and beginning May 1985, pay one-fourth of all monies collected under such contracts to the county general fund. Plaintiffs filed their complaint to require Walker to account for and reimburse Kootenai County for all monies paid to him pursuant to his contracts with the various municipalities, and also require Walker to account for and reimburse Kootenai County for the value of the facilities, equipment and employees of the county utilized in the performance of his contracts with the municipalities. Plaintiffs also sought to require the county treasurer to bring an action against Walker for alleged illegal retention of county funds. As above noted, upon motion therefore, and following a well-reasoned opinion by the district judge which was delivered from the bench, summary judgment was granted in favor of Walker. The scope of our review is limited to determining only whether there exist unresolved genuine issues of material fact, and whether Walker is entitled to judgment as a matter of law. Gro-Mor, Inc. v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App.1985); Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978); Stewart v. Hood Corp., 95 Idaho 198, 506 P.2d 95 (1973); I.R.C.P. 56(c). We hold that there are no remaining unresolved genuine issues of material fact, and hence the only question presented is whether Walker is entitled to judgment as a matter of law. It is the principal argument of appellants that under the provisions of ID. CONST, art. 18 §§ 7, 8 and 9, that “county officers” are required to turn over any “fees” in excess of their salaries or expenses to the county treasurer, and are liable criminally for failure to do so. We note initially that at the time of the adoption of said portions of art. 18 in the original Constitution of 1890, prosecutors were not denominated as “county officials” in § 6 of said art. 18. The reason for such non-inclusion is clear, since at the time of the adoption of the original Constitution the prosecutorial functions were performed by district attorneys whose duties and jurisdiction exceeded the boundaries of any one county. It was not until 1896 that the Constitution was amended to provide that there should be a prosecuting attorney for each county in the state. We deem it significant that the creation of such an office was accomplished by the amendment of art. 5 of the Constitution comprehending the judicial department, and no amendment was made to art. 18 § 6, denominating “county officers.” We further note that the debates of the Constitutional Convention make clear that the use of the term “fees,” as utilized in §§ 6, 7, 8 and 9 of art. 18 of the Constitution, were statutory fees collected by county officers for the performance of duties of their office. Clearly, the monies collected by Walker and other prosecutors throughout the state as a result of contracts with municipalities, do not constitute fees in that context, nor are the monies received for the performance of the “duties” of the office of prosecuting attorney. Rather, they are personal funds received in his capacity as a private individual for the performance of contractual obligations not relating to the duties of the office of prosecuting attorney. I.C. § 31-2604(2), in pertinent part, makes clear that the duties of the prosecuting attorney include: To prosecute all criminal actions for violation of all laws or ordinances, except city ordinances, and except traffic offenses and misdemeanor crimes committed within the municipal limits of a [1058] city when the arrest is made or a citation issued by a city law enforcement official, which shall be prosecuted by the city attorney____ (Emphasis added.) Appellants also assert that I.C. § 31-3113 requires the prosecuting attorney of Kootenai County to devote full time to the discharge of his duties, and hence, any monies secured by him belong to the county. Such argument obviously ignores the explicit provisions of I.C. § 31-3113, permitting the prosecuting attorney to contract with any city to prosecute city misdemeanors. Further, such argument flies in the face of common sense. If, by voluntarily entering into a contract to prosecute city misdemeanors, the performance of that contract automatically then became a portion of the “duties” of the office of county prosecutor, and monies earned therefrom were required to be turned over to the county, no prosecutor in his right mind would enter into such a contract to take on additional duties for no compensation. The clear intent of the legislature is to the contrary. Until relatively recent times the office of county prosecutor has been part-time in nature. It is common knowledge, and we take judicial notice of the fact, that county prosecutors maintain private law practices in addition to their duties in prosecuting criminal offenses. When the legislature provided for “full time” prosecutors in certain counties, it made clear that in such counties the prosecutors were permitted to enter into contracts with municipalities for the prosecution of city misdemeanors. The wisdom of such a policy decision by the legislature is not open to question by the courts in the absence of constitutional prohibition. As above noted, we find no such constitutional prohibition. Municipalities are free to enter into contract with private attorneys for the prosecution of city misdemeanors. By virtue of the legislation, they may adopt the alternative of contracting with the county prosecuting attorney for the prosecution of city misdemeanors. No question is raised concerning the ability of a part-time prosecutor to contract with municipalities for the prosecution of city misdemeanors and retain to himself the proceeds of such contract. Likewise, the legislature expressly permitted such practice to be utilized by municipalities with full-time prosecutors. We deem the cases relied upon by appellants to be inapposite. In each of those cases the question involved the performance of official services for a county by a county official. In the case at bar the services are not rendered to the county, nor are they a part of the county prosecutor’s official duties. There is no serious contention here that Walker did not comply with the provisions of I.C. § 31-3113. The record makes clear that Walker’s actions secured the unanimous approval of the board of county commissioners. The record makes clear, as above noted, that Walker reimbursed the county various sums for the utilization of county resources, that Walker reimbursed his deputies, and that for a time following 1985, Walker has turned over to the county a percentage of the contract monies received. The imposition of those conditions, and amounts received by the county therefor, lie within the discretion of the county commissioners. In sum, our Constitution, while making clear that a county prosecutor is to receive only “compensation for services as may be fixed by law,” such services do not include the prosecution of city misdemeanors. I.C. § 31-2604. Any compensation received for prosecution of city misdemeanors is outside the scope of either ID. CONST, art. 5 § 18 or art. 18 § 7. The decision and order of the district court is affirmed; costs to respondents. DONALDSON and BAKES, JJ., concur.