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AGLO 1973 No. 50 - April 30, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATORS

An incumbent member of the house of representatives now serving a two-year term to which he was elected in November, 1972, may be a candidate for an unexpired term in the state senate to be filled at the November 6, 1973, general election ‑ as also, may be either a house member thus elected in November of 1972 who later resigned that position to accept appointment to the senate, or a senator or representative now serving as such by appointment under Article II, § 15 (Amendment 52), supra.

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                                                                   April 30, 1973

Honorable R. Ted Bottiger
State Senator, Second District
15711-62nd Avenue
Puyallup, Washington 98371                                                                                                               Cite as:  AGLO 1973 No. 50

Dear Sir:

            This is written in response to your recent letter requesting our opinion on the following questions:

            "1. May an incumbent house member elected for a two-year term in 1972, commencing 1973, be a candidate for the State Senate in the general election to be held in November of 1973?

            "2. May a house member elected in November of 1972 for a two-year term, commencing January 1973, who later resigned that position to accept an appointment to the State Senate, be a candidate for election to the State Senate at the election to be held in November of 1973?

            "3. May a Senator or a Representative appointed to the Senate or the House of Representatives, as the case may be, be a candidate for election to that position in the general election to be held in November of 1973?"

            We answer all three of these questions in the affirmative.

                                                                     ANALYSIS

            You have identified three factors as giving rise to your questions.  The first of these, of course, is Article II, § 13 of our state Constitution which  [[Orig. Op. Page 2]] provides as follows:

            "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."

            The second factor to which you have referred is § 110, chapter 137, Laws of 1973, Ex. Sess., by which the legislature increased the salaries of all members of the state senate and house of representatives from their previous level of $3,600 per year (see, RCW 43.03.010) to a new level of $10,560 per year.

            And thirdly, there is the so-called "annual elections bill," chapter 4, Laws of 1973, under which elections will be required to be held on November 6, 1973, for the remainder of certain unexpired terms in the state senate that are currently being served by appointees under Article II, § 15 (Amendment 52) of the state Constitution.  Insofar as is here material, this section provides as follows:

            "Such vacancies as may occur in either house of the legislature . . . shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs: . . . and the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified: . . ."

            If the legislators' salary increase provided for by chapter 137,supra, could constitutionally be received by a person elected this fall for the remainder of an unexpired senate term currently running, then without much question the prohibition of Article II, § 13, supra, would apply with respect to each of the three above listed variations of your over-all inquiry ‑ for we can see no basis for distinguishing between any of the three hypothetical cases to which your questions refer.  However, because of another constitutional provision to which we will now address ourselves, this pay raise may not be received by such a person during the remainder of the term in question and hence, notwithstanding all of the foregoing factors, we may answer each of your three questions in the affirmative.  We have reference to Article XXX, § 1 (Amendment 54) which, as approved by the voters in 1968, provides as follows:

             [[Orig. Op. Page 3]]

            "The compensation of all elective and appointive state, county, and municipal officerswho do not fix their own compensation, including judges of courts of record and the justice courts may be increased during their terms of office to the end that such officers and judges shall each severally receive compensation for their services in accordance with the law in effect at the time the services are being rendered.

            "The provisions of section 25 of Article II (Amendment 35), section 25 of Article III (Amendment 31), section 13 of Article IV, section 8 of Article XI, and section 1 of Article XXVIII (Amendment 20) insofar as they are inconsistent herewith are hereby repealed."  (Emphasis supplied.)

            Shortly after the approval of this constitutional amendment by the voters we had occasion to consider it at some length in AGO 1968 No. 36 [[to Ernest H. Campbell, Associate Director, Gov. Res. & Services on December 5, 1968]], copy enclosed.  On page 5 of this opinion we described its effect upon state or municipal officers (including legislators) who fix their own compensation as follows:

            "If a state, county or municipal officer (serving a fixed term) is one of those '. . . who . . . fix their own compensation . . .,' then the prohibitions against midterm pay increases contained in such constitutional provisions as Article XI, § 8, supra, continue to apply.  The operation of this qualification to the new constitutional amendment was described in the official voters' pamphlet argument for HJR No. 13, prepared pursuant to RCW 29.81.020, et seq., as follows:

            "'A "YES" vote for HJR 13 will correct these unfair and discriminatory conditions.  It will NOT, however, allow uncontrolled salary increases, since HJR 13 pertains only to state, county and municipal officials who do not set their own salaries.  STATE LEGISLATORS, THEREFORE, COULD NOT RAISE THEIR OWN SALARIES DURING A CURRENT TERM OF OFFICE.'"

            "The reason that state legislators will not be able to receive mid-term pay raises is that under Article XXVIII, § 1 (Amendment  [[Orig. Op. Page 4]] 20) of the state constitution, they are included among the 'state elected officials' who are to 'receive such compensation as the legislature may direct.'  See,State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  In other words, legislators fix their own compensation."

            Because legislators "fix their own compensation" within the meaning of this constitutional amendment, it follows that the salary increase provided for by chapter 137, Laws of 1973, Ex. Sess., supra, cannot, constitutionally, take effect until the commencement of new legislative terms of office; i.e., in January of 1974, for all positions in the house of representatives and roughly half of the positions in the state senate, and in January of 1976, for the remainder of the senatorial positions.1/   Accord,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), in both of which cases our state supreme court held that a constitutional prohibition against mid-term pay raises ‑ such as is still contained in the Washington Constitution with respect to officers serving fixed terms whodo fix their own compensation ‑ is applicable to the term and not to the particular individual or individuals who may be serving that term.

            For this reason, it will readily be seen that those persons who are elected on November 6, 1973, to fill the remainder of such unexpired senatorial terms as must be filled at that election under chapter 4 and Article II, § 15,supra, will not thereby be entitled to receive the higher legislative salaries fixed by chapter 137, Laws of 1973, Ex. Sess., but, instead, will continue to draw for the remainder of those terms, the lesser, $3,600 per annum, salary fixed by law at the commencement of the unexpired terms they are filling.

            This brings us, then, to the final key to our affirmative answer to each of your three questions; namely the decision of a majority of the state supreme court inState ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958).  In this case the court concluded (insofar as is here material) that a member of the 1957 legislature which had increased the salaries of county  [[Orig. Op. Page 5]] commissioners was eligible, during the legislative term he was then serving, to be appointed to serve out an overlapping remainder of an unexpired county commissioner's term to which this salary raise could not constitutionally apply, filling a vacancy created by the death of the incumbent.  As explained on page 535 of this opinion:

            ". . .  The unexpired term of Commissioner Sears, deceased, does not carry with it the increased emoluments which the constitution forbids Mr. Munro to receive.  He will not receive the increased emoluments unless he is re‑elected for the term commencing in 1961.  By authority of our previous decisions of State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173, 118 A.L.R. 177 (1938), andState ex rel. Pennick v. Hall, 26 Wn.2d 172, 173 P.2d 153 (1946), Mr. Munro is eligible to hold the office."2/

             Of course, as explained in AGLO 1973 No. 40 [[an Informal Opinion, AIR-73540, to Frank S. Woody, State Senator on March 22, 1973]], copy enclosed, this 1958 decision by the supreme court is no longer viable in any case of an election or appointment of a legislator to someother office which, by reason of the adoption of Amendment 54,supra, is no longer constitutionally prohibited from receiving a mid-term salary increase.  Itis, however, still "good law," in our judgment, in the cases presented by your three questions ‑ involving, as they do, legislative offices occupied by ". . . elective and appointive state . . . officers who do. . . fix their own compensation, . . ."

            Accordingly, based upon the reasoning of this supreme court decision, it is our opinion that each of your three questions is answerable in the affirmative.  An incumbent member of the house of representatives now serving a two-year term to which he was elected in November, 1972, may be a candidate for an unexpired term in the state senate to be filled at the November 6, 1973, general election ‑ as, also, may be either a house member thus elected in November of 1972 who later resigned that position to accept appointment to the senate, or a senator or representative now serving as such by appointment under Article II, § 15  [[Orig. Op. Page 6]] (Amendment 52), supra.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, Wash. Const., Article II, §§ 5 and 6, which prescribe the terms of office of members of the house of representatives and senate, respectively.

2/Although this statement appeared in a dissenting opinion by Judge Ott, this portion of the dissent was concurred in by a majority of the members of the court and, thus, became a holding as to the particular point involved.

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