ID Opinion 86-6 1986-07-03

Can an Idaho legislator take office as a county prosecuting attorney without resigning the legislative seat first, and can a sitting prosecutor still run for the legislature?

Short answer: No to the first; yes to the second. The AG read Idaho Code § 31-2601 to bar a prosecuting attorney from holding any other county or state office during the prosecutor's term, so a legislator must resign before assuming office as prosecutor. Nothing in Idaho law prevented a prosecutor from seeking a legislative seat, but if elected, the prosecutor would have to choose.

Disclaimer: This is an official Idaho Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Idaho attorney for advice on your specific situation.

Opinion 86-6: A prosecutor cannot also be a state legislator

Plain-English summary

A sitting Idaho legislator asked the Attorney General whether he had to resign from the legislature before being sworn in as a county prosecuting attorney, and whether he could still run for a legislative seat in the upcoming general election while serving as prosecutor. The AG concluded that Idaho Code § 31-2601 expressly bars a prosecuting attorney from holding "any other county or state office" during the prosecutor's term. The legislator therefore had to resign the legislative seat before assuming the prosecutor's office. Separately, no statute prevented a prosecutor from being a candidate for a legislative seat, so running was permitted, but if the prosecutor won, the same § 31-2601 bar would force a choice between the two offices. As an alternative ground for the same outcome, the AG noted Idaho Code § 31-3113 required the Bannock County prosecutor to devote full time to that office, which the AG saw as practically incompatible with concurrent legislative service.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho Code § 31-2601 governed prosecutor qualifications and incompatibility. The relevant text required prosecutors to be licensed Idaho attorneys and added: "No prosecuting attorney shall hold any other county or state office during his term of office as prosecuting attorney," with a narrow exception for special-assistant-attorney-general appointments in counties other than the prosecutor's own.

Idaho Code § 31-2001 placed the prosecuting attorney within the county-office framework. Idaho Code §§ 67-301 and 67-401 et seq. defined state legislators as state officeholders. Idaho Code § 31-3113 required the Bannock County prosecutor to devote full time to that office. Under Intermountain Health Care, when statutory text is clear, the legislative intent must be given effect.

What the AG concluded at the time

The bar applied because both posts were "offices"

The AG treated the prosecuting attorney as a county office under § 31-2001 and the legislator as a state office under §§ 67-301 and 67-401 et seq. With both characterizations settled, § 31-2601's text "any other county or state office" reached the legislative seat squarely. A prosecutor was therefore barred from concurrent legislative service, which meant a sitting legislator had to step down before being sworn in as prosecutor.

Full-time prosecutor statutes added an independent ground

Even setting aside § 31-2601, the AG concluded that a prosecutor required by § 31-3113 to devote full time to that office could not also serve as a "part-time" legislator given the time demands of an Idaho legislative session. Because either ground was sufficient, the AG did not address common-law incompatibility of offices as a third ground.

Candidacy was permitted; assumption of office was not

On the second question, the AG located no statutory or constitutional bar to a prosecutor running for legislative office. The mismatch only crystallized once the prosecutor would actually take the legislative seat. So a prosecutor could appear on the ballot and campaign, but a winning prosecutor would have to choose which office to keep.

Common questions

Did the prosecutor have to resign as soon as filing for the legislative race?

No. The opinion located no bar to candidacy. The conflict materialized only at the point of taking the second office.

What about a deputy prosecutor running for the legislature?

The opinion addressed the prosecuting attorney specifically. The dual-office bar in § 31-2601 ran to "prosecuting attorney" rather than to deputies. The text did include a narrow exception that allowed a prosecutor or deputy to be appointed by the AG as special assistant attorney general for matters in another county.

Could the legislator wait to resign until the day before being sworn in as prosecutor?

The opinion held that the resignation had to occur before assuming the prosecutor's office. It did not specify a buffer; the practical answer was that the dual hold could not begin.

Citations

Idaho Code § 31-2601 — qualifications for prosecuting attorney; bar on concurrent county or state office.
Idaho Code § 31-2001 — prosecuting attorney as a county office.
Idaho Code § 31-3113 — full-time-service requirement for the Bannock County prosecutor.
Idaho Code §§ 67-301, 67-401 et seq. — state legislators as state officeholders.
Intermountain Health Care v. Board of County Commissioners of Madison County, 109 Idaho 685, 710 P.2d 595 (1985) — clear statutory text controls.

Source

Landing page: https://www.ag.idaho.gov/office-resources/opinions/
Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP86-06.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL
BOISE 83720
TELEPHONE (208) 334-2400

ATTORNEY GENERAL OPINION NO. 86-6

TO: The Honorable Larry EchoHawk
Idaho State Representative
1777 Lancaster
Pocatello, Idaho 83201

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Must an elected representative of the Idaho Legislature resign from his legislative position prior to assuming the office of prosecuting attorney within the State of Idaho?

Would that same individual be required to resign from his position on the 1986 general election ballot as a candidate for a legislative position?

CONCLUSION:

A prosecuting attorney may not serve as a member of the Idaho Legislature. Therefore, prior to assuming office as prosecutor, a legislator must resign from his legislative office. However, a prosecutor is not barred from seeking a legislative office.

ANALYSIS:

Idaho Code § 31-2601 sets forth the qualifications for prosecuting attorney:

No person shall be eligible to qualify for the office of prosecuting attorney who is not an attorney and counselor at law duly licensed to practice as such in the district courts of the state at the time he assumes office as prosecuting attorney. No prosecuting attorney shall hold any other county or state office during his term of office as prosecuting attorney provided, however, that a prosecuting attorney or a deputy prosecuting attorney may be appointed by the attorney general as a special assistant attorney general for the performance of duties pursuant to such appointment in any other county than the county in which such prosecutor or deputy prosecutor serves. . . . (emphasis added)

It is axiomatic that where a statute is clear and unambiguous, the expressed intent of the legislature must be given effect. Intermountain Health Care v. Board of County Commissioners of Madison County, 109 Idaho 685, 710 P.2d 595 (1985). It is clear that the office of prosecuting attorney, in this context, is a county office. See Idaho Code § 31-2001. It is equally clear that a legislator is a state office holder within the meaning of Idaho Code § 31-2601. See Idaho Code §§ 67-301, 67-401 et seq. Therefore, a prosecutor is statutorily barred from serving as a legislator.

Further, even if Idaho Code § 31-2601 did not bar a prosecutor from holding a legislative office, it is our opinion that a prosecutor required to devote full time to the position of prosecuting attorney pursuant to Idaho Code § 31-3113 could not serve as a legislator. That statute mandates that the Bannock County Prosecutor devote full time to the performance of his official duties. We do not believe that a "full time" prosecutor could also serve as a "part-time" legislator given the time requirements imposed upon an Idaho legislator. Because of these two independent statutory bases, we do not believe it is necessary to address the potential incompatibility of these two offices, which could provide yet a third ground for prohibiting an individual from holding these two offices.

Concerning your second question, we do not find any statutory or constitutional prohibition that prevents a prosecutor from seeking a legislative seat. However, for the reasons set forth above, once elected the prosecutor would be required to make a choice between the two offices.

AUTHORITIES CONSIDERED:

Statutes:
Idaho Code § 31-2001
Idaho Code § 31-2601
Idaho Code § 31-3113
Idaho Code §§ 67-301, 67-401 et seq.
Idaho Cases:

DATED this 3rd day of July, 1986.
ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
PATRICK J. KOLE
Chief, Legislative and Public Affairs Division