COMPUTATION OF LEGISLATORS' FILING FEES FOR 1974 ELECTIONS

ELECTIONS ‑- LEGISLATURE ‑- FILING FEES ‑- COMPUTATION OF LEGISLATORS' FILING FEES FOR 1974 ELECTIONS

The filing fee to be paid by candidates for election to the state legislature at the November, 1974, state general election for terms commencing in January, 1975, is $38.00.

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                                                                    July 23, 1974

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 72

Attention:  !ttMr. Donald F. Whiting
            Acting Supervisor of Elections
 
Dear Sir:
 
            This is written in response to your recent inquiry as to the proper amount of the filing fee to be paid by candidates for election to the state legislature at the forthcoming 1974 state general elections for terms commencing in January, 1975.
 
            We respond as set forth in the following analysis.
 
                                                                     ANALYSIS
 
            As you know, RCW 29.18.050 provides:
 
            "A fee of one dollar must accompany each declaration of candidacy for a precinct office without salary; a fee of ten dollars for any office with a compensation attached of one thousand dollars per annum or less; a fee equal to one percent of the annual compensation for any office with a compensation attached of more than one thousand dollars per annum.
 
            In AGO 1974 No. 12 [[to A. Ludlow Kramer, Secretary of State on June 28, 1974]], this office recently advised you that the requirements of that statute cannot constitutionally be enforced against those who are unable to pay the fees, based upon a recent United States Supreme Court decision.1/   Now, the further question has arisen as to the proper computation of the amount to be paid by nonindigent candidates for state legislative offices at this fall's elections in view of the salary increase provided by Initiative No. 282.2/
 
             [[Orig. Op. Page 2]]
            In addition to providing for small salary increases for various other state elective officials, that initiative measure, which took effect on January 1, 1974,3/ included an increase for state legislators to a new level of $3800 per year ‑ one percent of which, of course, is $38.00.  This increase, however, will not actually become payable until the commencement of new legislative terms because of the restraints of Article XXX, § 1 (Amendment 54) of the state Constitution with respect to mid-term [[midterm)]]pay increases for public officers empowered to fix their own salaries.  Accord, so much of Initiative No. 282 as provides that:
 
            ". . . such increases for legislators shall not take effect until the first day permitted by the constitution of this state.  . . ."
 
            In the meantime, the salaries of all incumbent legislators (or their successors in the event of vacancies occurring during the rest of the current terms)4/ will remain $3600 per year.  However, those who succeed in obtaining reelection this fall ‑ along with all other successful candidates for new legislative terms commencing in January, 1975, will begin receiving the higher salaries provided for by Initiative No. 282 at the commencement of their terms.
 
            On two previous occasions this office has considered questions relating to the calculation of filing fees when some doubt existed as to what salary would actually be attached to the office being sought when the victorious candidate assumed it.  See our opinion of June 15, 1950, to the Honorable Earl Coe [[to Earl Coe, Secretary of State, AGO 49-51-285]], and AGO 61-62 No. 167 [[to John Panesko, Prosecuting Attorney, Lewis County on September 20, 1962]], copies of both of which are enclosed.  However, the more recent of these two opinions did not reach the question at issue here; instead, it merely held that the salary attached to an elective position could be reduced after a candidate had filed for office and had paid the filing fee on the basis of the salary which was attached at the time of the filing.
 
             [[Orig. Op. Page 3]]
            The earlier, 1950 opinion is more closely connected to the issue presented by your immediate request.  That opinion dealt with the question of determining which salary should serve as the basis for a filing fee when the salary was dependent upon the population of the governmental subdivision involved.  In that instance, preliminary census figures had indicated that certain counties had sustained population increases which would, in turn, increase salary levels.  After determining that the preliminary figures, although they might be subject to minor change, were official pronouncements of the census bureau, we opined that the filing fee should be based upon the salaries projected to result from those figures.  However, since mid-term [[midterm]]salary increases were not constitutionally permissible for any officials until the adoption of Amendment 54 to the state Constitution in November of 1968, the practical effect of that opinion was simply to instruct the various elected officials to calculate the filing fee upon the basis of the information available at the time of filing ‑ information which indicated that higher salaries than those presently attached would be received by successful candidates.  As we said later in AGO 61-62 No. 167, supra,
 
            "The filing fee must be paid at the time the declaration of candidacy is filed.  The practicalities of the situation require that the amount of the fee be fixed according to the known facts at the time the candidate's declarations are filed.  . . ."
 
            In the instant case, the following facts are known:
 
            (1) Initiative No. 282 is presently the law of this state, having taken effect on January 1, 1974, as indicated above.
 
            (2) The legislature is not now in session and may only be called into session by a proclamation of the governor.5/
 
             [[Orig. Op. Page 4]]
            (3) The governor has given no indication that he intends to, or anticipates issuing such a proclamation.
 
            (4) If a legislative session were convened, and if it were to take up the subject of legislative salaries, no increase or decrease in the salaries provided for in the initiative could be enacted except by a vote of two-thirds of all the members elected to each house and in the absence of a gubernatorial veto.6/
 
             On the basis of these special factual circumstances, it is our view that it must now be considered all but a verity that the higher salary ($3800) will be received by those who assume legislative office in January of 1975.  Therefore, it is our further view that this higher salary should serve as the basis for calculating the filing fees for this fall's election.
 
            Aside from the practicalities of the situation and the view expressed in our 1950 opinion, our research has disclosed two cases which lend support to that conclusion.  The first of these is State ex rel. Schulman v. Cuyahoga County Board of Elections, 167 Ohio St. 19, 3 Ohio Ops. 2nd 462, 143 N.E. 2d 666 (1957).  There, an ordinance granting a salary increase was approved on July 2, but by its terms became effective on January 1 of the following year.  However, various individuals who had filed for the office in question had paid a fee based on the salary then in effect (in July) as they were not informed of the existence of the ordinance.  The Ohio court assumed, with no great discussion, that the higher salary should serve as the basis of the fee and determined that higher payments made, in good faith and without delay, by the candidates as soon as they became aware of the increased salary, were properly accepted.
 
            The second case upon which we here rely is our own State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966).  This case involved the question of whether members of both houses of the Washington state legislature were disqualified under Article II, § 13 from filing declarations of candidacy for reelection because the session of which they were members in 1965 had  [[Orig. Op. Page 5]] enacted legislative salary increases effective at the end of their terms.  The court held that they were not so disqualified and stated (with no discussion) that the filing fee for such candidacies should be based upon the increased salary.  This was so even though the salaries were not, at the time the opinion was rendered, in effect.

            In conclusion, it is our view that under the peculiar factual circumstances which now exist, the filing fee for those seeking legislative office this fall should be based upon the salary which will be received if they are elected to office.  In short, the proper fee is thirty-eight dollars.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
WAYNE L. WILLIAMS
Assistant Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/Lubin v. Panish,     U.S.    , 94 S.Ct. 1315, 39 L.Ed. 2d 702 (1974).
 
2/Chapter 149, Laws of 1974, 1st Ex. Sess.
 
3/See, Yelle v. Kramer, 83 Wn.2d 464 (1974).
 
4/See, State ex rel. Hovey v. Clausen, 117 Wash. 475, 201 Pac. 770 (1921).
 
5/Article III, § 7 of the Washington State Constitution provides that the governor
 
            ". . . may, on extraordinary occasions, convene the legislature by proclamation, in which shall be stated the purposes for which the legislature is convened."
 
6/See, Article II, § 41 and Article III, § 12 of the Washington State Constitution.