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Bob Ferguson

AGLO 1974 No. 68 -
Attorney General Slade Gorton


A proposal to require political party county central committees to nominate persons to fill legislative vacacies from a list submitted by the precinct committeemen of a legislative district involved will require a constitutional amendment.

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                                                                    July 12, 1974

Honorable Gary Grant
State Senator, 11th District
25823 132nd S.E.
Kent, Washington 98031                                                                                                               Cite as:  AGLO 1974 No. 68

Dear Sir:
            This is written in response to your recent letter inquiring as to the legality of a certain legislative proposal for the filling of vacancies in either house of the legislature.  We respond to this request in the manner set forth in our analysis.
            As transmitted to us with your letter, the proposal upon which you desire our opinion (in bill form) reads as follows:
            "Whenever a vacancy occurs in either house of the legislature, a special caucus of all precinct committeemen from the legislative district from the same political party as the legislator whose office has been vacated shall be called by the state central committee chairman of that party on a date at least twenty days and no more than thirty days following the date the vacancy occurred to submit a list of five names to the county central committee of that party, which shall nominate three of the five names to the county legislative authority for appointment:  PROVIDED, That in case of a vacancy occurring in the office of joint senator or joint representative, the special caucus shall submit a list of five names to the state central committee, which shall nominate three of the five names to the legislative authorities of the counties composing the joint senatorial or joint representative district for appointment."
            Your question, in essence, is whether the foregoing procedures can be mandated by a simple statute or whether, instead, they must be provided for by way of a constitutional  [[Orig. Op. Page 2]] amendment; i.e., an amendment to so much of Article II, § 15 of the Washington Constitution as states that:
            "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, . . ."
            In dealing with this question we note, immediately, the historical fact that the above‑quoted proviso to Article II, § 15, and its counterpart for legislative districts encompassing more than one county,1/ were themselves the product of a constitutional amendment some eighteen years ago.  See, Amendment 32, approved by the voters at the November, 1956, state general election.  Prior to that time, legislative vacancies were filled by appointment by the boards of commissioners of the county or counties involved without restraint as to political party or (much less) the contents of a list of nominees submitted by a given party organization.  Because the change in procedure proposed by the 1955 legislature involved an imposition of such restraints, however, that legislature deemed it at least appropriate, if not necessary, to move by way of a constitutional amendment rather  [[Orig. Op. Page 3]] than a mere statute.2/
             Looking back upon it, we believe now that this was the necessary way to go ‑ and by the same token, we likewise believe that the additional procedures to be required by the proposal outlined in your letter will also require a constitutional amendment if they are to be operative.  In this instance, as there, the effect of the change is to modify an existing constitutional provision.  There, it was to change the previously unrestricted power of the several boards of county commissioners into a restricted power; a power to appoint only a person from the same political party as the legislator whose office has been vacated, and then only if his name was on a list of nominees submitted by the county or state central committee.  Here, similarly, it would be to change the unrestricted power of those central committees in making their nominations to a restricted power to make those nominations only from a list submitted by the precinct committeemen of the legislative district involved.
            It is true, of course, as has often been said by our state supreme court, that:
            ". . . the state constitution is not a grant, but a restriction on the law-making power, and the power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state and federal constitutions.  . . ."  Clark v. Dwyer, 56 Wn.2d 425, 431, 353 P.2d 941 (1960), and cases cited therein.

            But where an act of the legislature will have the effect of changing a provision of the Constitution it is axiomatic that such change must be made in the form of, and in accordance with the procedures governing, amendments thereto.  Therefore because this would be the effect of the proposed legislative action which you have described,  [[Orig. Op. Page 4]] it is our opinion that this change in procedures governing the filling of legislative vacancies will not be legally effective unless adopted as a constitutional amendment under Article XXIII, § 1 of the Washington Constitution which, as you know, provides as follows:
            "Any amendment or amendments to this Constitution may be proposed in either branch of the legislature; and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the ayes and noes thereon, and be submitted to the qualified electors of the state for their approval, at the next general election; and if the people approve and ratify such amendment or amendments, by a majority of the electors voting thereon, the same shall become part of this Constitution, and proclamation thereof shall be made by the governor:  Provided, That if more than one amendment be submitted, they shall be submitted in such a manner that the people may vote for or against such amendments separately.  The legislature shall also cause notice of the amendments that are to be submitted to the people to be published at least four times during the four weeks next preceding the election in every legal newspaper in the state:  Provided, That failure of any newspaper to publish this notice shall not be interpreted as affecting the outcome of the election."
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***
1/In the case of legislators from those districts (i.e., joint senators or representatives), this section of the constitution similarly goes on to provide that:
            ". . . 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, . . ."
2/Amendment 32, supra, originated during the 1955 legislative session as Senate Joint Resolution No. 14.  A search of the legislative journals for that session reveals no relevant discussion as to why the constitutional amendment route was there taken instead of an ordinary bill.