Bob Ferguson
Other LanguagesAGO 1975 No. 4 -
Attorney General Slade Gorton
OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- LIEUTENANT GOVERNOR ‑- ELECTIONS ‑- CONSTITUTIONALITY OF BILL TO REQUIRE GOVERNOR AND LIEUTENANT GOVERNOR TO BE ELECTED JOINTLY
The legislature may not by statute (as opposed to a constitutional amendment) require that any candidate filing for the office of governor must file and run jointly with a candidate for the office of lieutenant governor from the same political party, with the names of both candidates to be grouped together on the ballot and a vote for one to constitute a vote for both; and this would be so even if the legislature were to abolish the office of lieutenant governor as a constitutional office and reconstitute it as an office created by statute.
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March 18, 1975
Honorable Arthur C. Brown
State Representative, 1st District
Legislative Building
Olympia, Washington 98504
Cite as: AGO 1975 No. 4
Dear Sir:
This is written in response to your recent letter requesting our opinion on two questions which we paraphrase as follows:
(1) May the legislature by statute require that any candidate filing for the office of governor must file and run jointly with a candidate for the office of lieutenant governor from the same political party, with the names of both candidates to be grouped together on the ballot and a vote for one to constitute a vote for both?
(2) Would the answer to question (1) be different if the legislature were to abolish the office of lieutenant governor as a constitutional office and reconstitute it as an office created by statute?
We answer both of these questions in the negative for the reasons set forth in our analysis.
[[Orig. Op. Page 2]]
ANALYSIS
From time to time, over the years, it has been urged by persons both within state government and outside of it that ‑ as is the case at the federal level with respect to the President and Vice‑President of the United States ‑ the governor and lieutenant governor be elected together on a single party ticket. Various arguments have been presented both for and against such proposals. The issue here presented, however, is not whether such a system is or is not desirable. Rather, our only concern in this opinion is one of procedure. Can this change in the governmental make‑up of our state be accomplished by a mere statute, or would it require a constitutional amendment?
Two separate sections of Article III of the state constitution, as it now reads, bear upon this question. The first of them is § 1, which provides as follows:
"The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature."
The second is Article III, § 25 which contains two basically unrelated sentences which are relevant to your inquiries. The opening sentence of this section provides that:
"No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office. . . ."
The closing sentence of this same section then states that:
". . . The legislature may in its discretion abolish the offices of the lieutenant governor, auditor and commissioner of public lands."
[[Orig. Op. Page 3]]
Your first question assumes the continuing existence of the lieutenant governor, along with the governor, as a constitutional officer. Your second question, on the other hand, postulates the abolition of the former office coupled with its reestablishment as a mere statutory position. It is our opinion, however, that in neither case could the legislature, without a constitutional amendment, impose such a requirement as you have described with respect to the election of these two state officials.
We base this conclusion, first, on so much of Article III, § 1,supra, as states that the governor, the lieutenant governor, and all of the other officers there listed are to be elected severally. The word "severally," as generally defined by the courts, means precisely the opposite of "jointly." It means, in the words of Black's Law Dictionary, 4th ed. (1951):
"Distinctly, separately, apart from others . . ."
Accord,State Nat. Bank v. Reilly, 124 Ill. 464, 14 N.E. 657 (1888);Shelby Mutual Ins. Co. v. Schuitema, Fla., 183 So.2d 571 (1966).
Secondly, we also reach the same conclusion by reason of the opening sentence of Article III, § 25,supra; i.e., so much thereof as (here repeated for ease of reference) reads:
"No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office . . ."
This provision has been held by our court to be applicable to all of those state officers listed in Article III, § 1, supra. State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 329 P.2d 841 (1958). And in AGO 61-62 No. 173 [[to Frank Brouillet, Chairman, Interim Committee on Education on October 9, 1962]], copy enclosed, this office, after a comprehensive review of numerous decided cases, advised that it was most probable that this sentence of Article III, § 25 would be construed by the court as an implied prohibition against the imposition of any statutory qualifications for the offices in question by the legislature. Accord, dicta to that effect [[Orig. Op. Page 4]] in In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955); andHuntamer v. Coe, 40 Wn.2d 767, 246 P.2d 489 (1952). Because of this, we there concluded that the legislature does not have the authority to establish additional qualifications for the office of state superintendent of public instruction, another of the state officers enumerated in Article III, § 1,supra.
Yet this is exactly what would be sought to be accomplished in the case of the governor and lieutenant governor by a bill such as you have described in your letter. Under the bill a candidate, in order to be elected to the office of governor, would have to be of the same political party as the person elected to the office of lieutenant governor, and vice versa, whereas the constitution only requires that in order to be elected to either of these two state offices a person must be ". . . a citizen of the United States and a qualified elector of this state, . . ." Furthermore, even if the office of lieutenant governor were to be abolished as a constitutional office and reestablished by statute, our answer would still be the same. Irrespective of whether or not such legislation could, or would, have the effect of making it possible for the legislature to establish additional qualifications forthat office, it obviously could not do so for the other state office involved; namely, the office of governor itself. Accordingly, the constitutional problem involved in an attempt to establish statutory qualifications for the constitutional offices listed in Article III, § 1,supra, would persist under this approach in the case of the governor even if it were thus to be obviated with respect to the lieutenant governor.
Again, in thus answering both parts of your inquiry in the negative we are not to be taken as expressing a position upon the wisdom of the proposal. In fact, we note that the underlying concept has recently been adopted in at least two of our sister states, Hawaii and Wisconsin. In both instances, however, it was done by a constitutional amendment. See, Hawaii Const., Article IV, § 2, as amended in 1964, and Wisconsin Const., Article V, § 3, as amended in 1967. This, likewise, in [[Orig. Op. Page 5]] our opinion, is how the plan you have described would have to be accomplished in the state of Washington.
We trust the foregoing will be of assistance to you.
Very truly yours,
SLADE GORTON
Attorney General
PHILIP H. AUSTIN
Deputy Attorney General