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...