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AGLO 1977 No. 23 - June 09, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- SALARIES ‑- ELIGIBILITY FOR ELECTION OR APPOINTMENT UNDER ARTICLE II, § 13 OF THE STATE CONSTITUTION

(1) The provisions of Article II, § 13 of the state constitution would not prevent an incumbent state representative elected in November of 1976 from being appointed or elected to the state senate for the remainder of an unexpired term regardless of whether or not a salary increase bill is enacted by the legislature at its current session since any such increase could not constitutionally take effect until the commencement of a new term of office.

(2) The filing fee to be paid under RCW 29.18.050 by a candidate seeking election to the state senate from the 33rd district for the remainder of the current unexpired term will be $38.00.

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                                                                    June 9, 1977

Honorable Eleanor M. Lee
State Representative, 33rd District
419 Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1977 No. 23

Dear Representative Lee:

            By recent letter you have made reference to the fact that the state senate seat from the 33rd legislative district is now vacant because of the recent election of Senator Jack Cunningham to the United States Congress.  Bearing that in mind you have then asked for our opinion on the following two questions:

            "(1) Would Article II, Section 13 of the Washington State Constitution prevent a state representative elected in November, 1976, (for a term running from January, 1977, through December, 1978) from being appointed this summer or running for the 33rd District Senate seat in November, 1977, to fill the unexpired term of Jack Cunningham (which runs through December, 1978), whether or not Second Substitute  [[Orig. Op. Page 2]] HB 1306 (dealing with legislators' salaries) is enacted?

            "(2) What would be the proper filing fee for the 33rd District Senate position for the November, 1977, election, whether or not Second Substitute HB 1306 is enacted?"

            We answer question (1) in the negative and question (2) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            Your first question involves the provisions of Article II, § 13 of our state constitution which states that:

            "No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."

            It is clear that a legislative office is a "civil office" within the meaning of this provision.  State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  The foregoing case also establishes, however, the further principle that Article II, § 13 is inapplicable if there is no significant overlapping of the two terms of office involved; i.e., the term being served by a legislator at the time a given civil office was created or its emoluments were increased and the term in that latter office to which the legislator in question seeks to be elected or appointed.

            In the instant case, of course, the present salary of all state senators was fixed by previous sessions of the legislature occurring before the commencement of any of the present terms of members of the house of representatives.  For those senators whose current terms commenced in January of 1977, a salary of $7,200 per annum is now payable pursuant to the provisions of § 1, chapter 113, Laws of 1975-76, 2nd Ex. Sess.  On the other hand, because of the constitutional prohibition against mid-term pay increases for legislators which is contained in Article XXX, § 1 (Amendment 54), those senators currently serving four year terms which commenced in January of 1975 must continue to be paid at the lower rate of $3,800  [[Orig. Op. Page 3]] per annum fixed by § 2, chapter 149, Laws of 1974, 1st Ex.Sess., (Initiative No. 282) until the commencement of their next terms on January 8, 1979.  And, as you know, former Senator Cunningham's term is of the latter type.  Furthermore, because the salary involved attaches to the office and not merely to the incumbent, even Senator Cunningham's appointed or, ultimately, elected successor will be required to be paid at the same, lower, salary level for the remainder of the term which Senator Cunningham was thus serving at the time of his election to Congress and resignation from the state senate.  State ex rel. Wyrick v. Ritzville, 16 Wn.2d 36, 132 P.2d 737 (1942);State ex rel. Henneford v. Yelle, 12 Wn.2d 434, 121 P.2d 948 (1942); andState ex rel. Hovey v. Clausen, 117 Wash. 475, 201 Pac. 770 (1921).

            From the foregoing it clearly follows that on the basis of the situation as it now exists, Article II, § 13, supra, would not prohibit a present member of the house of representatives from either being appointed or elected to fill the remainder of the current unexpired term of the state senate seat from the 33rd district; i.e., the term to which former Senator Cunningham was elected in November of 1974, and commenced serving on January 13, 1975.  We thus may unhesitatingly answer the first part of your initial question in the negative.  But what if, instead, the situation is changed by reason of the enactment of a further pay raise for legislators by the current session of the legislature ‑ whether in the form of Substitute House Bill No. 1306 or in some other manner?

            Even if that should occur, there is no question but that whoever is appointed or elected to serve the remainder of former Senator Cunningham's unexpired term would still have to be paid at the "old" $3,800 per annum, rate fixed in 1974 by Initiative No. 282, supra.  Thus, that individual, regardless of whether or not he or she is now a member of the house of representatives, could not constitutionally receive the benefit of a pay raise granted by the current session until the commencement of the next senate term in January of 1979 ‑ and that, in turn, would be after the expiration ofall current terms of office in the house of representatives since they are all two-year terms.  From this it follows that under the rationale employed by the court in State ex rel. O'Connell v. Dubuque, supra, there likewise should be no constitutional objection to the appointment or election of a current member of the house to the vacant senate seat in question even if a  [[Orig. Op. Page 4]] further legislative pay raise bill is passed.  Moreover, that same result is also supported by the earlier case of State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958), in which a majority of the members of the state supreme court opined that:

            "A person appointed to fill a vacancy in a board of county commissioners was eligible to hold the office notwithstanding he had been a member of the legislature that increased the salaries of county commissioners and Const. Art. II, § 13 providing that 'No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office . . . the emoluments of which have been increased during the term for which he was elected,' where the increase in the salary of county commissioners would not become effective until after the expiration of the term for which he was appointed."1/

             For that reason, having answered the first part of your initial question in the negative, we also answer the second portion of that question in the same manner.

            Question (2):

            Repeated for ease of reference, your second question asks:

            "What would be the proper filing fee for the 33rd District Senate position for the November, 1977, election, whether or not Second Substitute HB 1306 is enacted?"

            This question is also readily answerable ‑ partially on the basis of what we have already said.  Under RCW 29.18.050, the filing fee to be paid by candidates for ". . . any office with a compensation attached of one thousand dollars per annum . . ." is set at an amount equal to one percent of the annual compensation of that office.  But for the reasons explained in our response to your first question, above, that salary is, and will remain, $3,800 per annum  [[Orig. Op. Page 5]] for the 33rd district senate position involved until January of 1979, regardless of whether or not a legislative pay increase bill is passed by the current session of the legislature.  Therefore, the proper filing fee to be paid by candidates seeking election to that position for the remainder of the unexpired term, at the November, 1977, state general election will be one percent of that amount, or $38.00.  Accord, AGLO 1974 No. 72 [[to A. Ludlow Kramer, Secretary of State, on July 23, 1974, an Informal Opinion, AIR-74572]], copy enclosed.  That, in short, represents one percent of the salary which is now, and will remain, attached to the particular office in question for the remainder of the term for which any such candidate would be seeking election.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Although the above‑quoted headnote summarizes a portion of the concurring opinion of Justice Ott and the dissenting opinion of Justice Rosellini, it actually states the holding of the court on that issue because of the fact that it was subscribed to by six of the nine justices who functioned in the Munro case.

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