WA AGO 2014 No. 1 2014-01-13

When a Washington county prosecutor's seat opens up, what happens if the appointee turns the job down? Does the deadline reset?

Short answer: The 60-day clock for the county commission resets. The appointee declining creates a new vacancy, the party submits a fresh three-name list, and a new 60 days runs. Commissioners cannot pick someone outside the party's three nominees, and any such appointment is null and void.

Disclaimer: This is an official Washington State 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 AG opinions are persuasive authority but not binding precedent.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 Washington attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

Then-Attorney General Bob Ferguson resolved four questions about how a non-charter Washington county fills a vacant elected prosecuting-attorney seat. The opinion grew out of a real situation in Grays Harbor County: the elected Democratic prosecutor retired in 2013, the county Democratic Party submitted three nominees, the county commission picked Vini Samuel, and Ms. Samuel declined. The chair of the commission then announced the party had ten days to submit a new list, and that otherwise the commission would pick a Democrat of its choosing.

Four answers, all from the same constitutional text (article II, section 15) and statutes (RCW 36.16.110, .115; RCW 42.12.010(6)):

The 60-day clock for commissioners to "agree upon an appointment" stops when the commission majority votes for someone, even if that person later declines. The authority does not transfer to the governor at day 61. The appointment was complete at the moment of the vote (Marbury v. Madison logic).
When the appointee declines, a new vacancy is created. The commission can ask the party for a new three-name list, and a fresh 60-day clock starts running. If the commission still cannot agree, then the governor takes over, but again must pick from the party's list.
The commission cannot appoint someone outside the party's three-name list, even if the party is slow to submit it. Article II, section 15 has no exception.
If the commission ignored the rule and appointed someone not on the list, that appointment would be null and void under State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958). Whether actions taken by such a non-prosecutor could nonetheless survive under the "de facto officer" doctrine is a separate question the AG did not resolve.

Pending the appointment, RCW 36.16.115 lets the commission tap a sitting deputy or assistant prosecutor as interim prosecutor.

Currency note

This opinion was issued in 2014. 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: What is article II, section 15 of the Washington Constitution?
A: The provision that governs filling vacancies in partisan county elective offices and in the legislature. It requires that an appointee come from the same political party as the vacating officer, be one of three persons nominated by the county central committee of that party, and be appointed by the county legislative authority within 60 days. If the commissioners cannot agree, the governor picks within 30 more days, again from the same three-name list.

Q: When is an "appointment" complete?
A: When the appointing body's majority votes for a person. The opinion treated the appointment, not the appointee's acceptance, as the operative act, citing Marbury v. Madison. So a 60-day clock that started when the original vacancy occurred does not keep running just because the chosen appointee later declines. The vote satisfied the constitutional "agree upon an appointment" requirement.

Q: What if the appointee declines?
A: A new vacancy is created (RCW 42.12.010(6) treats failure to take the oath or post the bond as creating a vacancy). The commission can request a new three-name list from the party. A fresh 60-day window opens, calculated from the date of the new vacancy. If the commission cannot agree within that window, the governor takes over and picks from the new list.

Q: Can the commission go around the party's list?
A: No. The constitution gives the commission no authority to appoint anyone other than one of the party's three nominees. The Voters' Pamphlet from the 1968 amendment that added the three-nominee requirement explicitly described the change as "placing qualification on the county commissioners' power of appointment."

Q: What if the party never submits a list?
A: The opinion did not directly resolve this hypothetical. It noted that even in such a situation, the necessary duties of the office could continue under RCW 36.16.115 by an interim prosecutor named from a deputy or assistant.

Q: What happens if the commission appoints someone outside the party's three nominees?
A: That appointment is null and void (State ex rel. Carroll v. Munro). The opinion expressly declined to opine on whether specific actions taken by such a non-prosecutor would survive scrutiny under the de facto officer doctrine, which can in some circumstances preserve official acts despite a defective appointment (see State v. Tracer).

Q: Can a charter county follow different rules?
A: The opinion expressly limited itself to non-charter counties. Charter counties may have different vacancy-filling procedures established by their charters.

Background and statutory framework

Washington's elected county prosecutor is a partisan office (RCW 36.16.030, RCW 29A.04.110). Vacancies are governed by article II, section 15 of the state constitution and the implementing statute, RCW 36.16.110. The structural goal: keep partisan offices in the same political party as the elected officer who left, while preventing prolonged vacancies.

The constitutional text gives 60 days to the county legislative authority. If commissioners cannot "agree upon the appointment" within that window, the governor picks from the party's list within 30 more days. The opinion's reading made clear that the 60-day clock is per-vacancy: an appointment that is later declined does not extend the original 60 days, but a new vacancy starts a fresh 60 days.

Article II, section 15 has been amended several times. Originally it gave the governor sole authority over legislative vacancies. The 1930 amendment moved that authority to county commissioners. The 1956 amendment added the three-nominee qualifying requirement for legislative vacancies. The 1968 amendment extended the same three-nominee rule to partisan county offices. The 1968 Voters' Pamphlet described the goal as "placing qualification on the county commissioners' power of appointment."

The opinion drew on the standard Washington rule limiting county commissioners to expressly granted powers (Sasse v. King County, City of Tacoma v. Taxpayers of City of Tacoma) and on the absurd-results escape valve (State ex rel. Willis v. Monfort), which it found inapplicable here.

Citations and references

Constitutional and statutory:
- Wash. Const. art. II, § 15, partisan-vacancy procedure
- RCW 36.16.110, filling vacancies generally
- RCW 36.16.115, interim deputy or assistant prosecutor
- RCW 42.12.010(6), when vacancies arise

Cases:
- Marbury v. Madison, 5 U.S. 137 (1803), U.S. Supreme Court, completion of appointments
- State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958), Washington Supreme Court, unauthorized appointments are null and void
- State v. Tracer, 173 Wn.2d 708, 272 P.3d 199 (2012), Washington Supreme Court, de facto officer doctrine
- Sasse v. King County, 196 Wash. 242, 82 P.2d 536 (1938), Washington Supreme Court, county commissioner powers limited to those granted

Source

Landing page: https://www.atg.wa.gov/ago-opinions/process-appointing-new-county-prosecuting-attorney-fill-vacancy

Original opinion text

Attorney General Bob Ferguson

VACANCY—CONSTITUTION—COUNTIES—ATTORNEY, PROSECUTING—COUNTY COMMISSIONER—POLITICAL PARTIES—Process For Appointing A New County Prosecuting Attorney To Fill A Vacancy

If the county commission appoints a person to fill a vacancy in the office of county prosecuting attorney within 60 days of the vacancy occuring, but the appointee declines to accept the position, the authority to fill the vacancy does not transfer to the governor 60 days after the initial vacancy arose.

If an individual appointed by a county commission to fill a vacancy in the office of county prosecuting attorney declines to accept the position, the county commission may request that the relevant political party provide a new list of three nominees.

The county commission lacks the authority to appoint a person who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney.

If the county commission appoints an individual who has not been nominated by the relevant political party to fill a vacancy in the office of county prosecuting attorney, that individual lacks the legal authority to act as prosecuting attorney.

January 13, 2014

The Honorable Gerald Fuller
Interim Grays Harbor Prosecutor
102 W Broadway Room 102
Montesano, WA 98563

Cite As:
AGO 2014 No. 1

Dear Prosecutor Fuller:

You have requested our opinion on four questions regarding the procedures for filling a vacated county prosecuting attorney position in a county that has not adopted a charter form of government. I have rephrased and reordered your questions as follows:

When an elected county prosecutor vacates the office, the person appointed to fill the vacancy declines the office, and 60 days elapse after the initial vacancy arises, does the authority to make the appointment transfer from the county commission to the governor?

[original page 2]

When a county commission appoints an individual to fill a vacant prosecuting attorney's office, and the individual declines to take the position, is the county commission entitled to request a new list of three nominees from the county central committee of the political party of the former prosecuting attorney?

When an elected prosecuting attorney position has become vacant and the relevant county central committee has provided a list of three nominees to fill the vacancy, may the county commission appoint an individual who is not on that list?

If the county commission appoints an individual whose name is not on a list submitted by the relevant county central committee, will that individual have legal authority to act as prosecuting attorney?

BRIEF ANSWER

No. The state constitution provides authority to the county commission to fill a vacant elective position within 60 days of the creation of the vacancy. If a majority of the commissioners cannot "agree upon an appointment" within 60 days of the date a vacancy is created, the authority to make the appointment transfers to the governor. But the county commissioners "agree upon an appointment" as soon as a majority votes to appoint a particular person, whether or not that person accepts the position.

Yes. If the county commission makes an appointment, and the individual appointed declines the position, a new vacancy is created. The county commission then may request that the relevant political party provide a new list of three nominees. From the date the new vacancy is created, the county commission has 60 days to make an appointment. If the commissioners cannot agree on an appointment within 60 days of the date the new vacancy is created, the governor will be responsible for the appointment.

No. The state constitution requires that the person appointed by the county commission be from the same political party as the elective officer who vacated the position and must be one of three persons nominated by the county central committee of the relevant party. There is no authority to appoint a person who does not meet these requirements. A county commission does, however, have statutory authority to appoint an individual employed as a deputy or assistant to the prosecutor at the time of the vacancy to serve as interim prosecutor until a successor is elected or appointed. RCW 36.16.115.

No. A county commission has constitutional authority only to appoint one of the three individuals nominated by the relevant party. Appointment of an individual that has not been nominated by the relevant party would exceed the county commission's authority, and therefore be null and void.

[original page 3]

BACKGROUND

On September 30, 2013, the elected prosecutor for Grays Harbor County retired. We understand that the prosecutor was a member of the Democratic Party, elected to serve a term of office ending December 31, 2014. Grays Harbor County is a non-charter county. The Grays Harbor County Commission appointed you to serve as the interim prosecutor, pursuant to RCW 36.16.115.

On October 4, 2013, the Grays Harbor County Democratic Party submitted to the Grays Harbor County Commission a list of three nominees to fill the vacancy: Vini Samuel, George Smylie, and Katherine Svoboda. Our understanding from your letter is that Ms. Samuel and Mr. Smylie asked that Ms. Svoboda be appointed by the County Commission. On October 24, 2013, the County Commission selected Ms. Samuel. After Ms. Samuel declined the nomination, the party requested that the governor make the appointment from the party's list of nominees.

On December 9, 2013, the Chair of the County Commission announced that the party had ten days to provide a new list of nominees to the Commission. The Chair stated that if a list was not submitted within the ten-day time limit, the Commission would appoint a Democrat of their choosing.

ANALYSIS

When an elected county prosecutor vacates the office, the person appointed to fill the vacancy declines the office, and 60 days elapse after the initial vacancy arises, does the authority to make the appointment transfer from the county commission to the governor?

If a majority of the county commission votes to appoint a particular person nominated by the relevant party to fill a vacancy within 60 days of the vacancy occurring, the power to make the appointment does not transfer to the governor after the 60th day, even if the person appointed declines the position.

The authority of a county commission to fill vacancies is set forth in both the Washington Constitution and statute. Article II, section 15 of the state constitution provides, in relevant part:

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 county legislative authority of the county in which the vacancy occurs: Provided, That the person appointed to fill the vacancy must be from the same legislative district, county, or county commissioner or council district and the same political party as the legislator or partisan county elective officer whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, and in case a majority of the members of the county legislative authority do not agree upon the appointment within sixty days after the

[original page 4]

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, county, or county commissioner or council district and of the same political party as the legislator or partisan county elective officer whose office has been vacated, and the person so appointed shall hold office until his or her successor is elected at the next general election, and has qualified[.]

Const. art. II, § 15. RCW 36.16.110(1) further clarifies this power:

The county legislative authority in each county shall, at its next regular or special meeting after being appraised of any vacancy in any county, township, precinct, or road district office of the county, fill the vacancy by the appointment of some person qualified to hold such office, and the officers thus appointed shall hold office until the next general election, and until their successors are elected and qualified.

The county legislative authority of a non-charter county is generally exercised by the county commission. Const. art. XI, § 5; RCW 36.01.030. The county prosecuting attorney is an elective, partisan office. RCW 36.16.030 (prosecutor is an elected county office); RCW 29A.04.110 (defining which county elected offices are partisan). In filling a vacancy in the office of prosecuting attorney, the state constitution requires that the county commission select the appointee from a list of three names submitted by the county central committee of the same political party as the prosecutor whose office was vacated.

The governor's power to make the appointment is triggered if "a majority of the members of the county legislative authority do not agree upon the appointment within sixty days after the vacancy occurs." Const. art. II, § 15. The key question, then, is whether a majority of the commission members have "agree[d] upon the appointment" where the person they choose declines the office. We conclude that they have.

An appointment is completed "when the last act required of the appointing power has been performed." 3 Eugene McQuillin, Municipal Corporations § 12:140 (3d ed. WL updated Oct. 2013). Before adoption of the Washington Constitution, the United States Supreme Court held that when legal authority is provided to make an appointment, and the law is silent as to when the appointment is effective, the appointment occurs when the last act required of the person making the appointment has been performed. Marbury v. Madison, 5 U.S. 137, 157, 2 L. Ed. 60 (1803). The Court explained that because the appointment is the sole act of the appointing authority, completion is not dependent on delivery or acceptance of the appointment. Id. at 160-61. The appointment is "transmitted to a person already appointed; not to a person to be appointed . . . ." Id. at 160.

We therefore conclude that when the majority of a county commission selects one of the nominees provided by the relevant party within 60 days of the vacancy occurring, they have

[original page 5]

"agree[d] upon the appointment," and the power to make the appointment does not transfer to the governor if the person appointed declines the position.

When a county commission appoints an individual to fill a vacant prosecuting attorney's office, and the individual declines to take the position, is the county commission entitled to request a new list of three nominees from the county central committee of the political party of the former prosecuting attorney?

We have concluded above that when a county commission appoints an individual to fill a vacant prosecuting attorney's office within 60 days of the vacancy occurring, and the individual declines to take the position, the commission has "agree[d] upon the appointment," and the power to make the appointment does not transfer to the governor with the expiration of the 60th day. The question then becomes what does happen in this situation.

Article II, section 15's provisions kick in when a vacancy occurs "in either house of the legislature or in any partisan county elective office." The constitution does not define when a vacancy occurs, but RCW 42.12.010(6) provides that a vacancy arises when the incumbent refuses or neglects to take the oath of office, or give or renew the official bond. RCW 42.12.010(6). The term "incumbent" is not defined by statute, but in this limited context it includes a person who has just been appointed to fill a vacancy.[1] In this context, there is no prior occupant of the office whose term expires only after a replacement has been "elected and qualified[.]" RCW 36.16.020. Rather, if an interim official has been named to perform the duties of the vacant office, this authority terminates when "a successor is either elected or appointed[.]" RCW 36.16.115. In other words, authority transfers to the newly appointed prosecutor, and the appointee becomes the incumbent, when the appointment is made—not after the person appointed qualifies by taking the oath of office and posting the bond. Therefore, if the appointed individual declines to take the oath of office or post the required bond, a new vacancy is created. RCW 42.12.010(6). In addition, although a federal decision will not control interpretation of Washington law, the creation of a new vacancy is consistent with the United States Supreme Court's determination in Marbury that when a person refuses to accept an appointment, "the successor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy." Marbury, 5 U.S. at 160-61.

Because a new vacancy occurs when a person appointed by the county commission declines to take the office, the county commission has authority under the state constitution to fill this new vacancy. Const. art. II, § 15. As a result, the county commission must obtain a new list of three nominees from the same county central committee that provided the first list. Id. If the county commission fails to agree upon an appointment within 60 days of the creation of the new

[original page 6]

vacancy, responsibility for the appointment transfers to the governor. Id. Like the county commission, the governor would have to make the appointment from the list of three people nominated by the relevant political party to fill the new vacancy. RCW 42.12.010(6).

When an elected prosecuting attorney position has become vacant and the relevant county central committee has provided a list of three nominees to fill the vacancy, may the county commission appoint an individual who is not on that list?

When an elected prosecuting attorney position has become vacant and the relevant county central committee has provided a list of three nominees to fill the vacancy, county commissions do not have authority to appoint an individual to the position unless the person is on the list provided.[2]

Like other municipal corporations, boards of county commissioners "have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state[.]" Sasse v. King County, 196 Wash. 242, 247, 82 P.2d 536 (1938); City of Tacoma v. Taxpayers of City of Tacoma, 108 Wn.2d 679, 685-86, 743 P.2d 793 (1987) (citing 2 Eugene McQuillin, Municipal Corporations § 10.09 (3d rev. ed. 1979)). Under the plain language of article II, section 15, a county commission can only appoint a person to fill a vacancy if the person is "one of three persons who shall be nominated by the county central committee of that party[.]" There are no exceptions stated to this requirement.

The courts will depart from the literal language of the constitution if it is necessary to avoid an absurd construction. See State ex rel. Willis v. Monfort, 93 Wash. 4, 5-6, 159 P. 889 (1916). However, the requirement that the person appointed be one of three persons nominated by the party does not lead to absurd consequences. We need not and do not address here what might happen if the party itself failed to agree on a list of three nominees, but even in that scenario, the county commission would still have authority to appoint an interim prosecutor until a successor could be elected or appointed. RCW 36.16.115. Therefore, the necessary duties of the office would continue to be performed.

We find no ambiguity in this requirement in article II, section 15, but if there were ambiguity, a court would consider the history of the provision and the materials in the official Voters' Pamphlet. League of Educ. Voters v. State, 176 Wn.2d 808, 821, 295 P.3d 743 (2013); City of Tacoma, 108 Wn.2d at 687. In the original text of the constitution, the governor alone was given authority to fill vacancies in either house of the legislature. In 1930, article II, section 15 was amended to provide authority to county commissioners to fill vacancies in the legislature. Const. art. II, § 15 (amend. 13). A 1956 amendment to the provision added qualifications for individuals appointed to fill a vacancy in the legislature, including the

[original page 7]

requirement that the individual "shall be one of three persons who shall be nominated by the county central committee[.]" Const. art. II, § 15 (amend. 32). If the county commissioners failed to act, the amendment provided authority to the governor to appoint someone from the list supplied by the relevant party. Const. art. II, § 15 (amend. 32).

In 1968, article II, section 15 was amended to require that individuals selected to fill vacancies in partisan county offices also be selected from a list of three nominees submitted by the relevant party. Const. art. II, § 15 (amend. 52). When the 1968 amendment was presented for voter approval, the Voters' Pamphlet contained a statement for the amendment explaining that "[u]nder the present constitutional provision the county commissioners, when a vacancy occurs in a partisan elected county office, have complete and unqualified power to appoint, or not to appoint, a new official to the vacated position." Voters' Pamphlet 30 (1968) (statement in favor of Senate Joint Resolution 24 (amend. 52)). The statement expressed that approval of the amendment "will further the will of the people by first placing qualification on the county commissioners' power of appointment. Their power will be restricted to the appointment of a person who is . . . (3) one of the three persons nominated by the county central committee of that party."[3] Voters' Pamphlet 30 (1968). The Voters' Pamphlet reveals that the 1968 amendment was intended to limit the power of county commissions to the appointment of one of three persons nominated by the relevant party, as stated in the amendment's plain language.

RCW 36.16.110 clarifies and codifies the process for a county commission to fill a vacancy in an elective office. Consistent with article II, section 15, the statute requires the appointed individual to be "qualified." Since the term "qualified" is undefined, a court would look to its ordinary definition.[4] Gerberding v. Munro, 134 Wn.2d 188, 199, 949 P.2d 1366 (1998). In the context of a candidate for office, "qualified" means "having complied with the specific requirements or precedent conditions (as for an office or employment)." Webster's Third New International Dictionary 1858 (2002). The requirements an appointee must meet in order to be qualified are listed in article II, section 15 of the state constitution, including that the person appointed must be one of three persons nominated by the county central committee of the relevant party.

Pending appointment of an individual to fill the vacancy, a county commission may select "an employee that was serving as a deputy or assistant" to the prosecutor to perform the duties of the office. RCW 36.16.115. The acting official serves until a successor is elected or appointed. RCW 36.16.115.

[original page 8]

If the county commission appoints an individual whose name is not on a list submitted by the relevant county central committee, will that individual have legal authority to act as prosecuting attorney?

If the county commission appoints an individual who was not nominated by the relevant political party, she will not have legal authority to act as the prosecuting attorney. The Washington Supreme Court has held that an appointment to fill a vacancy in a county elective office is "null and void" if it is not authorized by the state constitution. State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729 (1958). We offer no opinion as to whether the validity of specific actions taken by a prosecutor so appointed (or the prosecutor's office) could be successfully challenged, or whether under specific facts such actions could be sustained as the actions of a de facto officer. See, e.g., State v. Tracer, 173 Wn.2d 708, 721-23, 272 P.3d 199 (2012) (discussing the de facto officer doctrine).

We trust the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

ANNE E. EGELER
Assistant Attorney General

wros

[1] The word "incumbent" could potentially have a different meaning in other statutes depending on the context there, but here the context makes clear that it includes a person who has been appointed and not yet given his bond. See, e.g., RCW 29A.24.201 (providing that an election shall lapse and an incumbent remain in office when no candidates file for an office scheduled for election).

[2] We previously responded to this question in the form of an informal opinion because of the time-sensitive nature of the question. Letter from Anne E. Egeler, Deputy Solicitor General, State of Washington, to Gerald Fuller, Interim Prosecuting Attorney, Grays Harbor County (Dec. 18, 2013). We repeat that earlier analysis here so that this published formal opinion sets forth our analysis in full, without need to refer to the informal opinion.

[3] The 1968 Voters' Pamphlet does not contain a statement against the proposed constitutional amendment.

[4] The term "qualified" is defined for purposes of RCW 36.16.110(2) as fulfilling the requirements "pertaining to a winner of an election." RCW 29A.04.133 (incorporated by reference in RCW 36.16.110(2)). This definition cannot be applied in determining what "qualified" means in the context of a person appointed to hold office without being elected. The qualifications an individual must meet to be appointed by a county commission are set forth in article II, section 15.