Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1985 No. 16 -
Attorney General Ken Eikenberry


When a vacancy occurs in a joint legislative district located partly in a home rule county governed by a legislative body consisting of more than three members, and partly in a county governed by a three‑member board of county commissioners, each county is entitled to cast three votes in the appointment process.

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                                                              September 25, 1985 

Honorable C. Danny Clem
Kitsap County Prosecuting Attorney
Kitsap County Courthouse
614 Division Street
Port Orchard, Washington 98366

 Cite as:  AGO 1985 No. 16                                                                                                               

 Dear Mr. Clem:

             By a letter dated September 9, 1985, you have requested an opinion of this office upon a question which we paraphrase as follows:

             When a vacancy occurs in a joint legislative district located partly in a home rule county governed by a legislative body consisting of more than three members, and partly in a county governed by a three‑member board of county commissioners, is each county entitled to cast an equal number of votes in the appointment process?

             We answer your question in the affirmative for the reasons set forth in our analysis.


             Your question arises under the constitutionally established method for filling legislative vacancies outlined in Article II, § 15, of the State Constitution.  As originally adopted, that section read as follows:

             "The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature."

              [[Orig. Op. Page 2]]

            In 1930, the people enacted Amendment 13,1/ which did away with the special election process and amended Article II, § 15 to provide for filling legislative vacancies by action of the county commission of the county involved, or in the case of a joint senatorial district, by joint action of the boards of county commissioners of the counties involved.

             Those provisions of Article II, § 15 relevant to your inquiry were amended again in 1956, by the adoption of Amendment 32.2/ In addition to expanding the commissioners' appointing authority to include partisan county elective offices, that amendment changed the language relating to the filling of legislative vacancies in joint legislative districts to read 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 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 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, and in case a majority of said county commissioners do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall [make such appointment] from the list of nominees provided for herein, . . ."

             This language has remained intact since the adoption of Amendment 32.3/

              [[Orig. Op. Page 3]]

            The general intent underlying Amendments 13 and 32 (the sources of the relevant language of Article II, § 15 as it exists today) seems clear.  The enactment of Amendment 13 obviated the necessity of a special election to fill each legislative vacancy which occurred, and provided an alternative appointment process which would no doubt be less cumbersome and costly.

             On the other hand, the adoption of Amendment 32 tempered the expediency achieved by Amendment 13 with limitations aimed at assuring that the appointment process would operate equitably. One such limitation is the rather obvious requirement that the person selected reside within the district.  Further, appointment was limited to persons of the same political party nominated by the established party structure, thus minimizing the possibility that the appointment process could be maneuvered to partisan advantage where, for example, a majority of the commissioners were of a different political party than the legislator whose seat was vacated.

             Finally, and most significantly as it pertains to the question you pose, Amendment 32 required that appointment to fill a vacancy in a multi-county district be made by agreement of a majority of all county commissioners from the counties involved.  At the time this language was drafted, all counties had exactly three commissioners.4/ The effect of requiring a majority‑-i.e., four in a two-county district, five in a three‑county district, etc.‑-was to prevent the commissioners of one county from dominating the appointment process without obtaining at least one concurring vote  [[Orig. Op. Page 4]] (two in the case of a three county district) from the other county or counties involved.

             The relevant language of Article II, § 15 (i.e., Amendment 32) was added when county home rule was only a theoretical possibility.  To answer your question in the negative, we would have to conclude that the drafters of that amendment intended that an individual county could upset the balanced appointment process which they created merely by unilaterally increasing the size of its legislative body.

             We recognize that a literal reading of Article II, § 15, in conjunction with the relevant language of Article XI, § 45/ arguably permits precisely that result.  However, our Supreme Court has said, in interpreting the State Constitution,

             ". . . the reason and intention of the law giver . . . control the strict letter of the law when the latter would lead to palpable injustice, contradiction, and absurdity . . ."  State ex rel. Willis v. Monfort, 93 Wash. 4, 5, 159 Pac. 889 (1916).

             If your question were to be answered in the negative, one of the limiting factors which we believe was specifically built into the appointment process by the drafters of Amendments 13 and 32‑-that is, equal participation by all counties in a multi-county district‑-would be eliminated.  In the particular situation with which you are concerned, for example, a vacancy in a district part in Kitsap County and part in Pierce, the appointment process could be dominated by the latter's seven county council members, if each were given an equal vote with each of the former's three county commissioners.

             For that matter, a single home rule county could dominate even in a three‑or-more county district if the number of members in the home rule county's legislative body exceeded the number of county commissioners in the other counties involved.  The injustice and absurdity of such a result is manifest.  That it is contrary to the intent of the drafters of Amendments 13 and 32 is clear from the scheme they created and the historical context in which they acted.

              [[Orig. Op. Page 5]]

            For these reasons, we follow the rule announced by the Supreme Court inMonfort and reject such a literal reading of article II, § 15.  Rather, we believe that language should be read consistent with the apparent intent of its drafters to create a balanced and equitable system of filling legislative vacancies.  We therefore conclude that no more than three votes may be cast from any one county in filling a vacant seat in a joint legislative district, and answer your question in the affirmative.6/

             The answer to your question raises another matter which we feel compelled to address, namely, the process whereby the votes of the individual members of a home rule county's legislative body are converted to the maximum of three votes which we conclude may be cast by such a county under Article II, § 15.  We believe that, absent a specific charter provision, the only acceptable method is to fractionalize or weigh each individual vote equally.7/

             We trust the foregoing will be of assistance to you.

 Very truly yours,
Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/1929 House Joint Resolution No. 13.

 2/1955 Senate Joint Resolution No. 14.

 3/Article II, § 15 was amended one more time by the adoption of Amendment 52 in 1968.  However, the amendments to Article II, § 15 related solely to the filling of vacancies in partisan county offices.  1967 Senate Joint Resolution No. 24, part.

 4/Article XI, § 4 of the Constitution, as originally adopted, directed the legislature to ". . . establish a system of county government which shall be uniform throughout the state . . ."  Chapter 36.32 RCW, enacted pursuant to that mandate, created a three‑member board of county commissioners as the governing body in each county.  The possibility of a different form of county government arose for the first time in 1948 when Article XI, § 4 was amended by Amendment 21 to permit home rule counties.  However, in fact no other form of county government actually existed until January 1, 1969, when the King County Home Rule Charter‑-the first in the state‑-became effective.  In other words, during the time Amendments 13 and 32 were drafted, debated, and adopted, there did not exist any form of county government other than a three‑member board of commissioners.

 5/". . . The authority conferred on the board of county commissioners by Section 15 of Article II as amended, shall be exercised [in a home rule county] by the legislative authority of the county."

 6/Of course, fewer than three votes may be cast in a particular situation‑-for example, where one or more of the county commissioner seats involved is vacant.

 7/For example, in the case of a seven member board in a home rule county, each vote would count the equivalent of three‑sevenths, resulting in a total of three votes equal to the number available to be case by the non-home rule county.