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AGO 1978 No. 3 - January 26, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- SALARIES ‑- SALARIES PAYABLE TO PERSONS APPOINTED OR ELECTED TO SENATE VACANCIES

(1) A person who is either appointed or elected to an unexpired term to which the $3,800 per year salary provided for by chapter 149, Laws of 1974, 1st Ex. Sess., is applicable is constitutionally prohibited from being paid at the increased salary rate ($7,200 per annum) provided for by § 1, chapter 113, Laws of 1975-76, 2nd Ex. Sess. at any time during the remainder of the Senate term to which he or she is thus appointed or elected.

(2) A person who is either appointed or elected to a Senate vacancy to which the $7,200 per annum rate provided for in chapter 113, supra, is currently applicable is constitutionally prohibited from being paid at the further increased rate of $9,800 per annum, under § 1, chapter 318, Laws of 1977, 1st Ex. Sess. at any time during the remainder of such an unexpired term.

(3) Each of the foregoing conclusions is equally applicable in those instances in which the person so appointed or elected to a Senate vacancy is, at the time of the appointment or election, an incumbent member of the state House of Representatives.

                                                              - - - - - - - - - - - - -

                                                                 January 26, 1978

Honorable Gordon L. Walgren
State Senator, 23rd District
5/10 Building
510 Washington
Bremerton, Washington 98310

                                                                                                                   Cite as:  AGO 1978 No. 3

Dear Sir:

            By recent letter you requested our opinion upon the following questions regarding the salaries payable to certain members of the Washington State Senate:

             [[Orig. Op. Page 2]]

            "1. Does Washington Constitution Article II, Section 25, Amendment 20, Amendment 35 or any other provision of the State Constitution prohibit a personappointed to an unexpired Senate term from receiving the salary of $7200 per year which is authorized by Chapter 113, Sec. 1, Laws of 1975-76, 2nd Ex. Sess., when the salary last received by their predecessor in that office was $3800 per year pursuant to Chapter 149, Section 2, Laws of 1974 1st Ex. Sess. (Initiative Measure 282)?  If the appointee is at the time of his appointment a member of the Washington State House of Representatives, does this affect the answer to this question?

            "2. Does Washington Constitution Article II, Section 25, Amendment 20, Amendment 35 or any other provision of the State Constitution prohibit a personelected to an unexpired Senate term from receiving the salary of $7200 per year authorized by Chapter 113, Sec. 1, Laws of 1975-76, 2nd Ex. Sess., when the salary last received by their predecessor in that office was $3800 per year pursuant to Chapter 149, Sec. 2, Laws of 1974 1st Ex. Sess. (Initiative Measure 282)?  If the person elected to the unexpired term is at the time of his election a member of the Washington State House of Representatives, does this affect the answer to this question?

            "3.  Does Washington Constitution Article II, Section 25, Amendment 20, Amendment 35 or any other provision of the State Constitution prohibit a person appointed or elected to the Senate for an unexpired Senate term, the next general election for which is in November of 1980, from receiving the salary increased authorized by Chapter 318, Sec. 1, Laws of 1977, 1st Ex. Sess. when that increase becomes effective on January 8, 1979?  If a person so elected or appointed was a member of the State House of Representatives at the time of his appointment or election, does this affect the answer to this question?"

            We answer the first part of each of your three questions in the affirmative and the second part of each of those questions in the negative.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            Factual Background:

            Insofar as is here material there are three separate salary levels for members of the Washington legislature to be noted.  They are as follows:

            (1) $3,800 per year ‑ as provided for by chapter 149, Laws of 1974, 1st Ex. Sess. (Initiative No. 282) which became effective on December 6, 1973;

            (2) $7,200 per year ‑ effective January 10, 1977, in accordance with RCW 43.03.010 as amended by § 1, chapter 113, Laws of 1975-76, 2nd Ex. Sess.; and

            (3) $9,800 per year ‑ effective January 8, 1979, as provided for in § 1, chapter 318, Laws of 1977, 1st Ex. Sess., once again amending RCW 43.03.010, supra.

            Also to be noted is the fact that at a given point in time, there are (by reason of Article II, § 6 of the state constitution) two classes of state senators, each serving staggered four-year terms.  At the present time one such class, hereinafter referred to as Class "A," is serving four-year terms which commenced on January 13, 1975, and will end on January 8, 1979.  The other class, hereinafter Class "B," is now serving four-year terms which began on January 10, 1977, and will end on the second Monday in January of 1981.

            Applicable Constitutional Provisions:

            Within either of the foregoing two classes of state senators, however, it is possible that vacancies have occurred, or will occur, during the respective terms of the senators involved by reason of resignations, deaths, etc.  In any such instance those vacancies are to be filled in the manner provided for in Article II, § 15 (Amendment 52) of the state constitution.  This provision reads, in material part, 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  [[Orig. Op. Page 4]] occurs: . . . and the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified:  PROVIDED, That in case of a vacancy occurring in the office of joint senator, or joint representative, the vacancy shall be filled . . . by appointment by the joint action of the boards of county commissioners of the counties composing the joint senatorial or joint representative district, . . ."

            In addition, there are three other constitutional provisions which are here involved.  They are:

            Article II, § 25 (Amendment 35):

            "The legislature shall never grant any extra compensation to any public officer, agent, employee, servant, or contractor, after the services shall have been rendered, or the contract entered into, nor shall the compensation of any public officer be increased or diminished during his term of office.  Nothing in this section shall be deemed to prevent increases in pensions after such pensions shall have been granted."

            Article XXVIII (Amendment 20):

            "All elected state officials shall each severally receive such compensation as the legislature may direct.  The compensation of any state officer shall not be increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949.

            ". . ."

            Article XXX, § 1 (Amendment 54):

            "The compensation of all elective and appointive state, county, and municipal officerswho do not  [[Orig. Op. Page 5]] 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."

            Analysis and Resolution of Questions Presented:

            Bearing the foregoing in mind, there are three propositions which seem clear beyond debate.  Those propositions may be briefly summarized as follows:

            (1) Class "A" senators, who were elected in November of 1974, to four-year terms commencing on January 13, 1975 and ending on January 8, 1979, are only entitled to receive the salaries which were in effect at the commencement of their terms (i.e., $3,800 per annum) because they are constitutionally barred, by Article II, § 25 (Amendment 35), supra, from receiving the midterm (as to them) salary increase (to $7,200 per annum) provided for by § 1, chapter 113, Laws of 1975-76, 2nd Ex. Sess.,supra.

            (2) Likewise, Class "B" senators who were elected in November of 1976 to four-year terms commencing on January 10, 1977, and ending on the second Tuesday in January of 1981 are, and for the remainder of their terms will be, entitled to receive only the $7,200 per annum salary fixed by chapter 113, Laws of 1975-76, 2nd Ex. Sess.,supra, because those senators will similarly be prohibited by the constitution from receiving the further mid-term (as to them) increase to $9,800 per annum which was granted, effective January 8, 1979, by § 1, chapter 318, Laws of 1977, 1st Ex. Sess.,supra.

             [[Orig. Op. Page 6]]

            (3) Class "A" senators who are reelected, in November of 1978, to new four-year terms beginning on January 8, 1979, and ending four years thereafterwill then be constitutionally eligible to be paid at the $9,800 per annum level as fixed by the most recent, 1977, salary enactment.

            But what of persons who are either (a) appointed or (b) elected to fill senatorial vacancies in either of the two classes of state senators which we have above identified?  And will it make any difference, legally speaking, whether those persons are, or are not, members of the state House of Representatives at the time of their appointments or elections?  For starters, in responding to those questions, let us turn to the early case ofState ex rel. Hovey v. Clausen, 117 Wash. 475, 201 Pac. 770 (1921) where, according to the reported decision of the supreme court, the critical facts (as stated at p. 476) were as follows:

            ". . .  The late Mr. Justice Mount, having been theretofore duly elected, did, on the second Monday of January, 1919, qualify as a judge of the supreme court of the state of Washington for the full term of six years then beginning, and ending on the second Monday of January, 1925, and immediately entered upon and continually thereafter performed the duties of that office until the third day of September, 1921, when he died.  On the 7th day of September, 1921, the Governor duly appointed relator to fill the vacancy caused by the death of Judge Mount, and the relator forthwith qualified, entered upon, and has since continuously discharged, the duties thus devolving upon him.

            ". . ."

            In the meantime, by virtue of an act passed by the legislature on March 4, 1919, the salary of supreme court justices was increased from $6,000 to $7,000 per annum.1/   Therefore, since his own tenure as a justice of the court had not commenced until more than two years later (i.e., September 7, 1921), Justice Hovey argued that even though his predecessor, Justice  [[Orig. Op. Page 7]] Mount, could not receive the benefit of the pay raise he, Justice Hovey, should be allowed to do so.  In a unanimous decision, however, the supreme court disagreed.  In so ruling the court held, in essence, that the constitutional prohibition against mid-term pay raises which was involved

            ". . . refers to that term as an entirety and forbids an increase of salary during its existence, without regard to the individual who may occupy it at any particular time.

            ". . ."  117 Wash. at 481.

            In addition, there are two other, more recent, cases to be noted.  Moreover, they are particularly important because, while theHovey case, supra, was based, specifically upon a separate prohibition against mid-term pay increases for state court judges then contained in Article IV, § 13 of the constitution, these subsequent cases make it clear that the same rule is also applicable with respect to the general prohibition in Article II, § 25,supra.  Both were decided in 1942 ‑ and the first of them was State ex rel. Henneford v. Yelle, 12 Wn.2d 434, 121 P.2d 948 (1942) in which the court, without citing Hovey, nevertheless similarly held, at p. 437, that:

            ". . .  The constitutional provisions (Art. II, § 25, state constitution), forbidding a change in the compensation of any public officer 'during his term of office,' refers to the term and not to the individual.  SeeBosworth v. Ellison, 148 Ky. 708, 147 S.W. 400, andForeman v. People, 209 Ill. 567, 71 N.E. 35.

            ". . ."

            And then inState ex rel. Wyrick v. Ritzville, 16 Wn.2d 36, 132 P.2d 737 (1942), the court relied upon both Article II, § 25, supra, and Article XI, § 8 of the constitution2/ in denying a mid-term pay increase to an appointive city councilman. Once again, the basic premise upon which the court relied, as stated on p. 42 of its opinion, was as follows:

             [[Orig. Op. Page 8]]

            ". . .  The provisions of the constitution forbidding a change in the compensation of any public officer during his term of office refer to the term and not the individual. . . ."

            But this time, by way of support for its ruling, the court expressly cited and relied upon both of its own prior cases, State ex rel. Henneford v. Yelle, supra, and State ex rel. Hovey v. Clausen, supra.

            In considering these three cases we acknowledge, of course, that none of them involved the office of state senator, per se.  Nor, obviously, were any of them decided in the context of Article XXX, § 1 (Amendment 54),supra, under which mid-term salary increases are nowpermissible in this state except in the case of those elective or appointive state, county or municipal officers (such as state legislators) ". . . who . . . do fix their own compensation . . ." since that amendment was not adopted until 1968.  Nevertheless, in our opinion, the underlying principal is still valid; and clearly, it applies to state senators and representatives since they are also covered by Article II, § 25 (Amendment 35), supra.

            As a matter of fact, this office has previously crossed both of these bridges, so to speak, in three previous opinions.  We have reference to AGLO 1977 No. 23 [[to Eleanor M. Lee, State Representative, on June 9, 1977, an Informal Opinion, AIR-77523]], AGLO 1973 No. 53 [[to R. Ted Galliger, State Senator, on May 21, 1973, an Informal Opinion, AIR-73553]]and AGLO 1973 No. 50 [[to R. Ted Bottiger, State Senator, on April 30, 1973, an Informal Opinion, AIR-73550]], copies of which are enclosed for your convenience.  In addition, the same three prior opinions also appear to us to be dispositive of a further issue raised by your questions; namely, whether any distinction is to be drawn between the status of a person who is appointed to fill a senatorial vacancy under Article II, § 15 (Amendment 52), supra, and one who is there elected to fill the same position for the remainder (if any) of the unexpired term.  The answer, as we view it, is no.

            Each of these opinions dealt with the question of eligibility for appointment or election to a legislative vacancy in view of a recently enacted pay raise for Senate and House members ‑ which is to say, of course, that they particularly involved the interplay between the continuing constitutional prohibition against mid-term pay raises for legislators which is contained in Article II, § 25 (Amendment 35), supra, and the following provision of Article II, § 13 of the constitution:

             [[Orig. Op. Page 9]]

            "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."

            Notwithstanding this last quoted constitutional prohibition, and in spite of the recent enactment of legislation increasing the salaries of all members of the legislature, the eligibility of a member of the House of Representatives for either appointment or election to a Senate vacancy was sustained by this office in all three opinions.  The touchtone for our rulings in each instance was State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958) in which the court had held that a member of the legislature was not constitutionally barred from appointment or election to another office, even though the salary for that office had been increased during the legislator's term, if he would, nevertheless, be constitutionally ineligible (by reason of Article II, § 25 (Amendment 35), supra) to receive the subject increase ". . . until after the expiration of the term for which he was appointed [or elected]."  Thus, for example, in AGLO 1977 No. 23, supra, we advised (during the final days of the 1977 legislative session) that

            "The provisions of Article II, § 13 of the state constitution would not prevent an incumbent state representative elected in November of 1976 from beingappointed 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."  (Emphasis supplied)

            AGLO 1973 No. 53 and AGLO 1973 No. 50, supra, are of similar import ‑ although they involved the impact of an earlier, 1973, legislative pay raise bill upon the question of eligibility of an incumbent state representative for appointment or election to a vacancy in the Senate.  And again, based upon the reasoning of State ex rel. Carroll v. Munro, supra, eligibility for appointment or election was sustained,  [[Orig. Op. Page 10]] but at the price of ineligibility for the subject pay raise at any time during the remainder of the unexpired Senate term in question.  On the other hand, had immediate eligibility for the pay raise been deemed to exist then,a fortiori, our ruling on the question presented would likewise, as in AGLO 1977 No. 23,supra, have had to have been one of ineligibility, under Article II, § 13,supra, for appointment or election to the unexpired term involved.

            The basic point to be noted in support of our conclusion is this:  While Article XXX, § 1 (Amendment 54), when read alone, might be thought to express a concept of personnel, rather than institutional, ineligibility for mid-term pay increases only on the part of those individuals who actually participate in fixing their own compensation,contra the Hovey line of cases, supra, this 1968 amendment is not, in fact, to be so read.  Rather, by its express terms, it is to be read in conjunction with all of the various preexisting sections of the constitution which are referred to in its second paragraph, as above quoted, and as a repealer of those provisions only ". . . insofar as they are inconsistent herewith. . . ."  But according to theHovey, etc., rule those preexisting prohibitions against mid-term increases in compensation, which are thus qualifiedly preserved by Amendment 54, apply to the term without regard to the individual occupant of the office involved.  Therefore, reading the amendment in that light it follows that the Hovey rule must be deemed to survive ‑ in those cases in which, as here, the mid-term pay raise ban also survives.

            Having so answered the principal question raised by your request we turn, briefly, to the second;i.e., whether it makes any difference, legally speaking, that the persons who are appointed or elected to unexpired terms in the Senate are, or are not, members of the House of Representatives at the time.  In our judgment the answer to this question must clearly be in the negative.  Whatever else may be said in support of a claim by a newly-appointed or elected senator that he is, somehow, entitled to receive the benefits of a mid-term salary increase which his predecessor could not constitutionally enjoy, the fact that such individual was serving in the state House of Representatives at the time of his appointment or election seems utterly irrelevant.  While it is true, of course, that such a person may thus have been receiving a higher salary as a state representative than he will be eligible to be paid as a state senator,3/  [[Orig. Op. Page 11]] we can see no legal basis for varying our ultimate answer to the more basic question above presented as a consequence of that fact.  In short, it matters not from whence the newly appointed or elected senator comes, or what salary he was previously receiving, insofar as his new salary as a state senator is concerned.

                        Summary:

            Based upon the foregoing, we answer all three of your questions in the affirmative; i.e.,

            (1) A person appointed to an unexpired Senate term to which the $3,800 per year salary provided for by chapter 149, Laws of 1974, 1st Ex. Sess.,supra, is applicable (namely, a Class "A" term) is constitutionally prohibited from being paid at the increased salary rate ($7,200 per annum) provided for by § 1, chapter 113, Laws of 1975-76, 2nd Ex. Sess., supra, at any time during the remainder of the Senate term to which he or she is thus appointed;

            (2) A person who is elected to such an unexpired Class "A" Senate term is likewise prohibited from being paid at the increased rate at any time during the remainder of the Senate term to which he or she is thus elected; and

            (3) A person who is either appointed or elected to a Class "B" Senate vacancy, to which the $7,200 per annum rate provided for in chapter 113,supra, is currently applicable, is constitutionally prohibited from being paid at the further increased rate of $9,800 per annum, under § 1, chapter 318, Laws of 1977, 1st Ex. Sess., supra, at any time during the remainder of such unexpired Senate term.

            Furthermore, it is our opinion that each of the foregoing answers is equally applicable in those instances in which the person so appointed or elected is, at the time of that appointment or election, an incumbent member of the state House of Representatives.

            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/Chapter 77, Laws of 1919, p. 154.

2/". . . the salary of any county, city, town, or municipal officer shall not be increased or diminished after the election or during his term of office. . . ."

3/E.g., a state representative serving a two-year term commencing on January 10, 1977, and ending on January 8, 1979, who is appointed or elected to a Class "A" Senate vacancy in, for example, January or February of 1978.

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