FILLING OF VACANCIES

OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- LIEUTENANT GOVERNOR ‑- SECRETARY OF STATE ‑- FILLING OF VACANCIES

Procedures to be followed in filling vacancies in the offices of governor, lieutenant governor and secretary of state under Article III, § 10 and Article III, § 13 of the state Constitution.

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                                                               November 18, 1974

Honorable Richard A. King
State Representative, 38th District
309 77th Place S.E.
Everett, Washington 98201                                                                                                               Cite as:  AGLO 1974 No. 94

Dear Sir:
 
            By recent letter you have advised us that the House Constitution and Elections Committee, of which you are Chairman, is currently in the process of studying the methods by which vacancies are filled in state elective offices.  In order to aid the committee in this study you have asked for our opinion on the following several questions:
 
            "1. If the governor vacates his office prior to the next general election, does his successor serve for the remainder of the unexpired term or only until a successor is elected at the next general election?
 
            "2. If the lieutenant governor vacates his office prior to the next general election, does the governor have the power to appoint a sucessor to that office?  If so, does the appointee serve for the remainder of the unexpired term or only until a successor is elected at the next general election?
 
            "3. If the secretary of state vacates his office prior to the next general election, does the governor have the power to appoint a successor to fill the vacancy in that office?  If so, does the appointee serve for the remainder of the unexpired term or only until a successor is elected at the next general election?"
 
            We respond to these questions in the manner set forth in our analysis.
 
             [[Orig. Op. Page 2]]
                                                                     ANALYSIS
 
            Your inquiries relating to the office of lieutenant governor and secretary of state may all be answered on the basis of Article III, § 13 of our state constitution, as construed by the state supreme court in the early case of State ex rel. Fish v. Howell, 59 Wash. 492, 110 Pac. 386 (1910).
 
            Article III, § 13 reads as follows:
 
            "When, during a recess of the legislature, a vacancy shall happen in any office, the appointment to which is vested in the legislature, or when at any time a vacancy shall have occurred in any other state office, for the filling of which vacancy no provision is made elsewhere in this Constitution, the governor shall fill such vacancy by appointment which shall expire when a successor shall have been elected and qualified."
 
            In the Howell case, which involved, specifically, the office of secretary of state, the court held (1) that a vacancy in this office is to be filled by gubernatorial appointment, and (2) that the person thus appointed is entitled to serve for the balance of the term for which his predecessor was elected.  In so holding on the second of these two points, the court explained its reasoning as follows:
 
            ". . . it will be noticed that the constitution does not say that the officer shall hold until his successor is elected, but that the appointment shall expire when a successor is elected; meaning, no doubt, a successor to the term and not to the person.  No provision being made for the election of a secretary of state except in the years fixed by the constitution, the next regular election for that office would occur in 1912, until which time, and until the one then elected shall duly qualify, the present incumbent is entitled to hold the office.  The fact that the constitution is careful to provide for the filling of vacancies in judicial offices at the next general election, and has made no such provision for other state offices, is an evidence of the intention of the people to preserve, in so far as the administrative offices of the state are concerned, the harmony of their tenure and the time of their selection.  . . ."
 
            Without question, this same rationale is equally applicable  [[Orig. Op. Page 3]] to the office of lieutenant governor and the various other executive officers listed in Article III, § 3 of the constitution, the text of which reads as follows:
 
            "The lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and commissioner of pulbic lands, shall hold their offices for four years respectively, and until their successors are elected and qualified."
 
            Thus, in direct answer to both parts of your second and third questions, as above set forth, it is our opinion that:
 
            (1) If either the lieutenant governor or the secretary of state vacates his office prior to the next general election, the governor has the power to appoint a successor to that office; and
 
            (2) the person or persons thus appointed may serve for the remainder of the unexpired terms involved.
 
            We turn, next, to the question of the governor, himself, and to the issues raised by your first question.  Of course, in this case, the question of who succeeds to this office in the event of a vacancy is expressly spelled out in the constitution.  See, so much of Article III, § 10 (Amendment 6) as provides that:
 
            "In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor; and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of the governor shall devolve upon the secretary of state.  In addition to the line of succession to the office and duties of governor as hereinabove indicated, if the necessity shall arise, in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor and in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands.  . . ."
 
            As for the question of how long that successor serves, this is also covered by the express terms of the foregoing constitutional amendment which, interestingly, was approved by the voters at the November, 1910, state general election ‑ barely three months after the Howell decision was rendered  [[Orig. Op. Page 4]] with respect to the secretary of state and the various other elective officials listed in Article III, § 3, supra.  On this issue, the language of the amendment reads as follows:
 
            ". . .  Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term."
 
            Compare, the original language of Article III, § 10, which read as follows:
 
            "In case of the removal, resignation, death, or disability of the governor, the duties of the office shall devolve upon the lieutenant governor, and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of governor shall devolve upon the secretary of state, who shall act as governor until the disability be removed or a governor elected."
 
            The Sixth Amendment, it will thus be seen, clearly modified that which would otherwise have been the law on this subject.  It did so, however, only insofar as gubernatorial vacancies occurring during the first two years of a governor's four-year term are concerned.  Thus, if the office of governor becomes vacant ". . . more than thirty days before the next general election occurring within two years after the commencement of the term, . . ." the lieutenant governor or other constitutionally designated successor is to serve only until a new governor is elected at that general election for the remainder of the unexpired four-year term.
 
            If, on the other hand, the vacancy occurs after the thirtieth day prior to the last general election occurring within the first two years of the governor's term of office, the pertinent language of the Sixth Amendment, as  [[Orig. Op. Page 5]] quoted above ‑ being virtually identical to that of Article III, § 13, supra ‑ leads us to precisely the same result as was reached by the court in the Howell case.  Thus, for example, if the present governor were to vacate his office at sometime between now and the end of his current term his constitutionally designated successor would be entitled to serve as governor for the full, unexpired remainder of that term in precisely the same manner as would a gubernatorial appointee to the offices of lieutenant governor or secretary of state in accordance with our answers to your second and third questions, above.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General