AGO 1981 No. 6 - May 29 1981
OFFICES AND OFFICERS ‑- LEGISLATURE ‑- MEMBERS ‑- VACANCY ‑- APPOINTMENT AND ELECTION OF SUCCESSOR UNDER REDISCTRCTING ACT
In view of the enactment of a legislative redistricting plan by chapter 288, Laws of 1981, a certain legislative vacancy resulting from the resignation of an encumbent on May 1, 1981, is first to be filled by appointment, under Article II, § 15 (Amendment 52) of the state constitution, on the basis of the "old" district represented by the vacating encumbent; however, when a successor is elected at the November, 1981 state general election, the basis for that election will be the "new" district to which the vacating legislator was assigned under the redistricting act.
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May 29, 1981
Honorable Don Herron
946 County-City Building
Tacoma, Washington 98402
ATTN: Terry D. Sebring
Chief Civil Deputy
Cite as: AGO 1981 No. 6
By recent letter you requested our opinion regarding the procedures to be followed in selecting a successor to former State Representative Phyllis Erickson, who resigned her legislative seat to become a member of the Pierce County Council on May 1, 1981.
By its passage of chapter 288, Laws of 1981 (Substitute Senate Bill No. 3655), which became effective when signed by the Governor on May 18, 1981, the legislature provided for the formation of new legislative districts in response to [[Orig. Op. Page 2]] the 1980 federal census.1/ Accord, Wash. Const., Art. II, § 3. Your question is whether, in view of this new redistricting plan, Representative Erickson's successor,
". . . will be from the existing legislative district or from the new legislative district as defined by the redistricting legislation passed during the recent session?"
We answer your question in the manner set forth in our analysis.
We begin by noting Article II, § 15 (Amendment 52) of the Washington Constitution which 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 occurs: PROVIDED, That the person appointed to fill the vacancy must be from the same legislative district, . . . and the same political party as the legislator . . . whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, . . . 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 from a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county commissioners of the counties composing the joint senatorial [[Orig. Op. Page 3]] or joint representative district, the person appointed to fill the vacancy must be from the same legislative district and of the same political party as the legislator whose office has been vacated, . . ."
Thus, in reality, it will be seen that there are actually two separate questions here to be resolved. The first involves the geographic area, or district, from which the immediate appointee to succeed Representative Erickson must come. And the second, in turn, relates to the geographic area or district which will serve as the constituency for purposes of electing a successor at the next general election‑-an election which will occur, for this purpose, on November 3, 1981. See, RCW 29.13.010.
(a)The Appointment Question:
This question, relating to the legislative district boundaries to be utilized in making theappointment of an immediate successor, is one which has previously been considered and resolved by this office in connection with prior redistricting action. In AGO 65-66 No. 14, and again in a letter opinion dated December 27, 1972 to then State Senator James A. Anderson, copies of both of which are enclosed, we concluded that the person appointed to fill such a vacancy ". . . must reside somewhere within the geographical area which comprised the legislative district from which his predecessor was elected or appointed . . .;"i.e., the "old" rather than the "new" district. As we further explained in AGO 65-66 No. 14, at page 3,
"The point is simply that though the new redistricting plan may be immediatelyeffective, it does not become operative until the commencement of new terms of office to be filled by elections as provided therein. Consequently in the meantime any vacancy occurring in either house of the legislature is a vacancy as to the now existing term of office‑-to be filled for the remainder of the unexpired term in the manner aforesaid."
[[Orig. Op. Page 4]]
We again adhere to that view and thus answer this aspect of your present question accordingly.
(b)The Election Question:
This further question, however, must be answered somewhat differently. Whereas neither the 1965 redistricting law which was involved in AGO 65-66 No. 142/ nor the federal court redistricting order referred to in our 1972 letter opinion to Senator Anderson purported to terminate, prematurely, existing terms of office (with one exception not here material under the 1972 court order), chapter 288, supra, as we read it, does so in those instances where (as here) mid-term vacancies occur. First, § 62 of the bill provides that:
"In order to maintain the election scheme of Article II, section 15, of the Washington state Constitution, and Amendment 52 thereto, there shall be elected at the November, 1981, general election, for one‑year terms only, a senator from the fifteenth senatorial district and one representative from the twelfth, fifteenth, and thirty-sixth legislative districts that are created by this chapter."
And second, more generally, § 67 says that:
"If any of the senators or representatives serving terms to which they were elected or appointed prior to the effective date of this act should for any reason vacate their offices prior to the elections provided for in sections 63 or 66 of this 1981 act, the appropriate election officers shall provide for corresponding elections, at the next general election, in the newly created districts to which the vacating senators or representatives were assigned."
[[Orig. Op. Page 5]]
Notably, however, neither of these provisions address the appointment process but, instead, they both relate only to the election of successors. In effect, therefore, the legislature has caused the date of election of successors, rather than the date of occurrence of the vacancies, to be the focal point in time. The "old" terms continue until that time, so as to cause the immediate process ofappointing a successor to remain governed by the provisions of Article II, § 15 (Amendment 52),supra, as construed in our prior opinions. But then, at the point of election of successors, the new legislative districts established by the new redistricting law.
Therefore, in summary, our answer to your question is as follows:
In accordance with AGO 65-66 No. 14 and our 1972 letter opinion,supra, Representative Erickson's immediate replacement, to be appointed (in this case) jointly by the Pierce County Council and the Thurston County commissioners, must be someone who resides within the same geographical area as comprised the "old" second legislative district from which Representative Erickson, herself, was last elected; however, that person may only serve, by virtue of the appointment, until a successor is elected next fall, at the November 3, 1981, state general election. In turn, in accordance with § 67 of the 1981 redistricting act, those seeking election to the position at that time must reside within the boundaries of ". . . the newly created" district to which the vacating legislator was assigned;i.e., in this instance, the new second legislative district provided for by § 11 of SSB 3655.3/
[[Orig. Op. Page 6]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/In addition, the same bill provided for Congressional redistricting, but that portion was vetoed by the Governor.
2/See, chapter 6, Laws of 1965.
3/We take the reference in § 67, supra, to ". . . the newly created districts to which the vacating senators or representatives were assigned . . ." as denoting, simply, the new districts in which those vacating senators or representatives actually reside. In this instance, it is our understanding that former Representative Erickson resides within both the "old" and the "new" second district.