When county commissioners deadlocked on filling a joint legislative vacancy, could the Governor appoint before sixty days passed?

Plain-English summary

The Washington AG advised the Governor to wait until sixty days had passed from a joint legislative vacancy before appointing from the eligible nominees after county commissioners deadlocked. The constitutional text could support an earlier appointment once the deadlock was clear, and the AG did not declare such an appointment invalid. It favored waiting because commissioners might still reach agreement during their allotted period and create competing claims to the office.

The official opinion states: “For this reason, it is our opinion that it would be preferable for the governor to wait until the passage of the specified sixty days from the inception of the vacancy before making his appointment.” (source).

Currency note

This opinion was issued in 1957. 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.

Common questions

Q: Was waiting sixty days described as the preferable course?
A: Yes. That was the AG’s recommendation in the deadlock described.

Q: Did the AG say an earlier appointment was certainly invalid?
A: No. It said the text could support one after a hopeless deadlock, but warned of a later commissioner agreement.

Q: Why did the commissioners still matter during that period?
A: The opinion read the amendment as leaving them an opportunity to agree on a nominee before sixty days elapsed.

Background and statutory framework

The Governor asked about a tied vote among commissioners of a joint representative district. The AG interpreted the constitutional vacancy amendment and distinguished legal validity of a possible early appointment from the safer sequence it recommended.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/constitutional-law-appointment-legislator-fill-vacancy

Original opinion text

Attorney General John J. O'Connell

CONSTITUTIONAL LAW -- APPOINTMENT OF LEGISLATOR TO FILL VACANCY

Where a vacancy occurs in the legislature and the county commissioners are unable to agree upon a successor pursuant to the terms of the 13th Amendment of the state constitution, it is preferable for the governor to wait sixty days from the inception of the vacancy before making the appointment.

January 21, 1957

Honorable Albert D. Rosellini
Governor of the State of Washington
Legislative Building
Olympia, Washington Cite as: AGO 57-59 No. 4

Dear Sir:

You have orally requested an interpretation of the amendment to the 13th amendment of the constitution of the state of Washington, introduced in the legislative session of 1955 as Senate Joint Resolution No. 14, and passed by the people at the election of November 6, 1956.

This amendment provides, in pertinent part, as follows:

"Such vacancies as may occur in either house of the legislature or in any partisan county elective office 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 within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same legislative district and of the same political party as the legislator whose office has been vacated." (Emphasis supplied.)

The problem you pose has arisen as a result of the failure of the six county commissioners of a joint representative district to agree as to the nominee to fill a vacancy in that district. It is our understanding that six commissioners favor one candidate and six another. The precise question presented to us in whether the governor may appoint a successor to the office in question as [[Orig. Op. Page 2]] soon as the commissioners have announced their disagreement, or whether he must wait a period of sixty days from the time the vacancy occurred.

Our answer is that in our view the better course would be to wait until the sixty day period has elapsed.

ANALYSIS

There can be little doubt that the language employed in the amendment is susceptible of two constructions. It can either mean (1) that the governor may appoint a nominee as soon as the commissioners have reached a disagreement, or within sixty days, or (2) that only if sixty days have elapsed without their having agreed may he make such an appointment. Perhaps the preferable construction from the language alone would be the former; certainly if the commissioners should reach a hopeless deadlock within the sixty-day period, and in consequence the governor should make an appointment before it had passed, it is hard to see how, under the language of the amendment, such an appointment would be invalid.

However, a different conclusion is reached if one considers what would happen were the governor, upon the commissioners' having disagreed, should appoint a successor, and then, within the sixty-day period, the commissioners should change their minds and come to an agreement on some other candidate. Nothing in the amendment indicates that they would not still have the right to do this; and since they would have elected their nominee within the specified time, it would be he, and not the governor's selection, who would legally fill the vacancy.

For this reason, it is our opinion that it would be preferable for the governor to wait until the passage of the specified sixty days from the inception of the vacancy before making his appointment.

We trust the foregoing will prove helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JOHN S. ROBINSON
Assistant Attorney General