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Bob Ferguson

AGLO 1973 No. 40 -
Attorney General Slade Gorton


Extent to which Article II, § 13 of the Washington Constitution, relating to the eligibility of legislators for election or appointment to civil office, has been affected by the adoption of Article XXX, § 1, Amendment 54; criteria to be applied in determining when a legislator will be eligible to be appointed or elected to a civil office which was either created during his legislative term or for which a pay raise was then granted.

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                                                                  March 22, 1973

Honorable Frank J. Woody
State Senator, 39th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 40

Dear Sir:

            This is written in response to your recent letter requesting our opinion on two questions relating to the eligibility of members of the legislature for appointment or election to other offices under the following provisions of Article II, § 13 of the Washington Constitution:

            "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."

            We will state your questions, and our answers thereto, in the following analysis.


            Question (1):

            Your first question is somewhat general and asks:

            "Have the previous rulings of your office and the court decisions interpreting Article II, section 13, been modified by the enactment of Amendment 54 to Article XXX, Constitution of of the State of Washington, whereby compensation of public officers may be increased during the term during which they hold office?"

            The constitutional amendment to which you have thus referred was adopted in 1968, and reads as follows:

             [[Orig. Op. Page 2]]

            "The compensation of all elective and appointive state, county, and municipal officers who 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."

            Prior to the adoption of this amendment no raise in compensation granted by the legislature for an office having a fixed term could take effect until the commencement of the next term of that office.1/   Because of this the Washington Supreme Court, in State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958), concluded that a member of the 1957 legislature which had increased the salaries of county commissioners could, during the legislative term he was then serving, be appointed to serve out an overlapping remainder of an unexpired county commissioner's term to which the salary raise would not apply ‑ filling a vacancy created by the death of an incumbent ‑ although he could not be elected for the ensuing new term to which the increased salary would attach.  As stated 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  [[Orig. Op. Page 3]] Wn.2d 172, 173 P.2d 153 (1946), Mr. Munro is eligible to hold the office."2/

             Predicated as it was upon the pre‑1968 constitutional prohibition against any midterm pay increases for state or local officers serving fixed terms, it seems readily predictable that this result would no longer be reached by the court in a similar case arising today ‑ following the adoption of Amendment 54, supra.  In our opinion, however, this represents the only impact upon legislator eligibility for office under Article II, § 13 which the adoption of this 1968 amendment may be said to have had ‑ and it will readily be noted that this change has resulted in a diminution of such eligibility rather than in any sort of an enlargement of the eligibility of a legislator for appointment or election to a civil office which has been created or the emoluments of which have been increased during his legislative term.

            Question (2):

            Your other inquiry takes cognizance of the fact that Article II, § 13,supra, results in only a temporary disqualification and asks for our advice with respect to the timetable to be followed in determining when a legislator will be eligible to be appointed or elected to a civil office which was either created during his legislative term or for which a pay increase was then granted.  Specifically, you have asked:

            ". . .  Is a legislator ineligible to be appointed or elected for such office during the term for which the legislator was elected?  Is he ineligible to be elected or appointed to a civil office after the expiration of his own term as a legislator?  And, finally, when does the legislator become eligible for the first time to run for a civil office, the emoluments of which are increased during the term for which the legislator was elected?"

             [[Orig. Op. Page 4]]

            These questions, we believe, are all readily answerable from a reading of the supreme court's recent opinion in State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  In this case, overruling a contrary decision in State ex rel. Pennick v. Hall, 26 Wn.2d 172, 173 P.2d 153 (1946), the court held that a member of the legislature may be appointed or elected during his legislative term to a civil office which was created, or the emoluments of which were increased, during that term ‑ so long as the term of office to which the legislator is thus appointed or elected does not overlap the measuring legislative term.  In other words it is now constitutionally permissible, under this ruling, for the election or appointment to occur at a time still within the legislative term the candidate or appointee was serving when the office was created or its emoluments were increased ‑ but only if the term to which he is elected or appointed does not begin until the end of that legislative term.

            For purposes of illustration of this principle let us assume the case of a member of the state senate now serving a four-year term running from January 11, 1971, until January 13, 1975.  During the second year of this term, as you know, the legislature increased the salaries of all state supreme court judges ‑ as well as those of the court of appeals, and the various superior courts.  See, chapter 100, Laws of 1972, Ex. Sess.  Because of Article II, § 13,supra, this hypothetical state senator will, thus, not be eligible to seek election for the remainder of any unexpired terms on these courts which are to be filled at the forthcoming November, 1973, annual general election as provided for by chapter 4, Laws of 1973 ‑ for the remainder of any such terms would overlap with his present senatorial term by more than a year.  On the other hand, he will be eligible to run for election in November of 1974 for a new term commencing in January of 1975, because in this case there will be no overlapping of the subject court and senatorial terms of office as still prohibited by the Constitution.

            The critical point in time, it will thus be seen, is now no longer when the election is held or the appointment is made; instead, it is the time of commencement of the term of office to which the legislator in question is elected or appointed.  This, however, is solely by reason of the supreme court's decision in State ex rel. O'Connell v. Dubuque, supra, and not because of the adoption of Amendment 54 to the Constitution ‑ which, you will note, postdated the O'Connell decision by more than two years.

             [[Orig. Op. Page 5]]

            In conclusion we may add that if you or any other current members of the legislature would like to have us provide you with a further opinion applying the foregoing principles to a specific state of facts involving any of your own circumstances, we would be most happy to do so upon request.

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

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See the several sections of the original Constitution cited in the second paragraph of Amendment 54 which expressly so stated.

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.