Richey, 122019 WAAGO, AGO 2019-6

Case DateDecember 20, 2019
CourtWashington
The Honorable Eric J. Richey
AGO 2019-6
No. 2019-6
Washington Attorney General Opinion
Washington State Office of the Attorney General
December 20, 2019
         OFFICES AND OFFICERS-STATE-LEGISLATORS-VACANCY-COUNTIES-POLITICAL PARTIES-Eligibility Of Member Of County Legislative Authority To Receive Appointment To Fill Legislative Vacancy          Nothing in Washington law precludes sitting county commissioners or councilmembers from being eligible for appointment to vacant state legislative positions.          The Honorable Eric J. Richey          Whatcom County Prosecuting Attorney          311 Grand Avenue Suite 201          Bellingham, WA 98225‐4079          The Honorable Randall K. Gaylord          San Juan County Prosecuting Attorney          350 Court Street PO Box 760          Friday Harbor, WA 98250          Dear Prosecutors Richey and Gaylord:          By letters previously acknowledged, you have each requested our opinion on the following paraphrased question:          Where county legislative bodies make appointments to fill vacant state legislative positions, are members of those legislative bodies ineligible for appointment by reason of their membership?          BRIEF ANSWER          No. Nothing in the Washington Constitution, statutes, or case law precludes sitting county commissioners or councilmembers from being eligible for appointment to vacant state legislative positions (though ethical restrictions would prohibit councilmembers from deliberating or voting in an appointment process in which they were a nominee). To the extent our prior opinions inferred such a restriction based on out‐of‐state authority, we no longer adhere to those opinions because our own courts have never adopted such a restriction and in more recent opinions have strongly favored eligibility for office.          Qualifications for state legislators are set forth in article II, section 7 of the Washington Constitution. Such officers must be (1) citizens of the United States, and (2) qualified voters in the district for which they are chosen. The Supreme Court has held that there is a "strong presumption in favor of eligibility for office." Gerberding v. Munro, 134 Wn.2d 188, 202, 949 P.2d 1366 (1998). Thus, these constitutionally‐dictated qualifications for office are exclusive, and the legislature may not add to such qualifications by statute, such as by imposing term limits. Id. at 210.          Article II, section 15 of the Washington Constitution sets forth the process for filling mid‐term vacancies in the state legislature by appointment: The appointment process has two stages. First, the central committee of the political party of the legislator whose office has been vacated nominates three individuals. Where the vacated office represents a district wholly contained within a single county, the county central committee makes the nominations. If the vacated office represents a district spanning more than one county, the state central committee makes the nominations. Second, by majority vote, the members of the county legislative authority (or joint county legislative authority, in the case of vacant offices that represent districts covering two or more counties) select the individual who will be appointed to the vacancy from the list of nominees. If a majority of the members do not agree upon the appointment within sixty days after the vacancy occurs, the governor appoints the person to fill the vacancy from the list of nominees. In all cases, the person selected through appointment must be from the same legislative district and the same political party as the legislator whose office has been vacated.          ANALYSIS          You each ask whether individuals serving on the county legislative authorities...

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