Service As Acting Governor When Both The Governor And The Lieutenant Governor Are Absent From The State

GOVERNOR—LIEUTENANT GOVERNOR—ELECTED OFFICIALS—Service As Acting Governor When Both The Governor And The Lieutenant Governor Are Absent From The State

The powers and duties of the Office of Governor are vested in the Elected Governor when both the Governor and the Lieutenant Governor are out of state.

December 13, 2019

Dear Governor Inslee:

                        By letter previously acknowledged, you have requested our opinion on the following question:

When both the Governor and Lieutenant Governor are temporarily absent from Washington at the same time, who possesses the legal authority to serve as Acting Governor in their absence?

BRIEF ANSWER

            If the Governor leaves the state and the Lieutenant Governor remains in the state, the Lieutenant Governor serves as the acting Governor. But if the Lieutenant Governor is also absent, there is no provision of law vesting the Governor’s authority in anybody other than the Elected Governor. We therefore conclude that if both the Governor and the Lieutenant Governor are absent from the state, the powers of the Office of Governor are vested in the Elected Governor.

LEGAL AND HISTORICAL BACKGROUND

            Washington law addresses the concept of an Acting Governor in both the Washington Constitution and in statute. Beginning with the statutes, three provisions address the Lieutenant Governor’s authority to act in the Governor’s place if the Governor is absent from the state:

            If the governor absents himself or herself from the state, he or she shall, prior to his or her departure, notify the lieutenant governor of his or her proposed absence, and during such absence the lieutenant governor shall perform all the duties of the governor.

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RCW 43.06.040. As our Supreme Court has observed: this statute “is silent on . . . what official may act as governor when both the governor and lieutenant governor are absent.” In re Recall of Inslee, 451 P.3d 305, 308 (Wash. 2019). A second statute provides:

            Every provision of law in relation to the powers and duties of the governor, and in relation to acts and duties to be performed by others towards him or her, extends to the person performing for the time being the duties of governor.

RCW 43.06.050. A third statute repeats the concept that “the lieutenant governor performs the duties of the governor when the governor is out of the state,” and provides that when doing so he or she receives additional compensation. RCW 43.15.010(2).

            The Constitution speaks to what happens in the case of the “removal, resignation, death or disability of the governor,” and what happens if the Offices of Governor and Lieutenant Governor become vacant. Const. art. III, § 10. It does not expressly provide for the Governor being absent from the state.

            The original constitutional text was brief:

            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.

Const. art. III, § 10 (original text) (emphasis added). Thus, in its original form, the Constitution simply devolved the Governor’s powers on the Lieutenant Governor if the Governor was removed, resigned, died, or became disabled. It then added that if both the Offices of Governor and Lieutenant Governor become “vacant,” then the Secretary of State becomes Acting Governor.

            In 1910, Washington voters approved the only amendment of article III, section 10 to date. That amendment added to the provision:

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. In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant governor elect to qualify, the duties of the governor

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shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. 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.

Const. amend. 6 (1910) (emphases added). The amendment addressed several points. It extended the order of succession to the Governor’s office beyond the Secretary of State to other statewide executives in a specified order. It also provided for an Acting Governor if the Elected Governor fails or refuses to qualify for the office, using the same extended order of succession. The amendment also provided that “any person” succeeding to the office “shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified[.]” Const. amend. 6 (1910). Finally, it provided for an unexpired term election to fill the Office of Governor for the remainder of his or her term. Const. amend. 6 (1910).

            The Washington Supreme Court has considered the subject only once, although without a single majority opinion. The case arose when both the Governor and the Lieutenant Governor left the state. State ex rel. Meyers v. Reeves, 194 Wash. 503, 504, 78 P.2d 590 (1938).[1] The Lieutenant Governor returned first, on April 19, 1938, and on that date as Acting Governor signed a proclamation calling the Legislature into special session to commence on April 25, 1938. Id. The Lieutenant Governor then took the proclamation to the Secretary of State’s Office to have the state seal affixed, but arriving at 5:10 pm the Secretary’s office was closed. Id. When the Lieutenant Governor returned at 8:00 am the next day, April 20, 1938, the Secretary of State declined to affix the seal because eight minutes earlier she had received a telephone call from the Governor informing her that the Governor had returned to the state. Id. The issue in the case was whether the court could compel the Secretary of State to affix the seal, thus completing the promulgation of the proclamation calling the Legislature into session.

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            The narrowest basis among the Court’s fractured opinions was simply that since the Lieutenant Governor was not the acting Governor when he submitted the proclamation, the Secretary of State could not be compelled by mandamus to affix the state seal to it. State ex rel. Meyers, 194 Wash. at 505; id. at 506 (Main, J., & Beals, J, concurring). “When a divided court decides a case and no single rationale explaining the result enjoys the assent of a majority, the narrowest ground on which a majority agreed represents the court’s holding.” City of Seattle v. Evans, 182 Wn. App. 188, 193-94, 327 P.3d 1303 (2014), (citing State v. Valdez, 167 Wn.2d 761, 775, 224 P.3d 751 (2009)), aff’d on other grounds, 184 Wn.2d 856, 366 P.3d 906 (2015).

            That narrow holding does not address your question. Two concurring opinions do, but in opposite ways. Justice Robinson began with the proposition that the Governor’s absence from the state constitutes a disability, resulting in the need for an Acting Governor. State ex rel. Meyers, 194 Wash. at 507 (Robinson, J., concurring). It followed for him that the order of succession specified in article III, section 10 must apply to the full list of statewide officers in that section or the possibility would arise that the state could be left without a chief executive. Id. at 510. This is so, according to Justice Robinson, because “there is no other constitutional provision or statute governing the matter.” Id. And “[t]he state should never be at a loss for some qualified person to perform the duties of the executive.” Id.

            Justice Geraghty, in contrast, concluded that the Governor’s “temporary absence from the state, on official business at the nation’s capital, did not create a situation authorizing the execution of his duties either by the lieutenant-governor or the secretary of state, or any other of the state officers in the line of succession.” Id. at 512 (Geraghty, J., concurring). Justice Geraghty noted that the Constitution only provides for an Acting Governor “in case of the ‘removal, resignation, death, or disability of the governor.’” Id. (quoting Const. art. III, § 10 (original text)). But “it can not in truth or in reason be said that any of these conditions existed by reason of the governor’s absence[.]” Id. Justice Geraghty concluded that “no good reason exists for a rule that would confine the governor to the limits of the state or permit him to cross the state line only at the risk of a disruption of his policies.” Id. at 513.

            The concurring opinions of both Justice Robinson and Justice Geraghty document the general understanding of their time that if both the Governor and the Lieutenant Governor leave the state, the duties of the Governor devolved upon the Secretary of State and potentially upon the other officers in order of succession. See State ex rel. Meyers, 194 Wash. at 509 (Robinson, J., concurring); see also id. at 512 (Geraghty, J., concurring). An opinion issued to Secretary of State Belle Reeves by our office on April 20, 1938, as the facts of State ex rel. Meyers were occurring, stated the same understanding. “When the governor and lieutenant governor were both absent from the state, she, being secretary of state, became acting governor[.]” AGO 1937-38, at 319 (letter from G.W. Hamilton, Attorney General, State of Washington, to Belle Reeves, Secretary of State, State of Washington (Apr. 20, 1938)) (AGO 1938), at 319-20.

            A search of our own internal files produced a later document describing how other states handled the Governor’s absence from the state and the history of Washington’s relevant statutes and constitutional provisions. A 1969 memorandum noted that some states treated the Governor’s

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absence from the state as creating a need for an Acting Governor while others did not. Memorandum from Philip H. Austin, Assistant Attorney General, State of Washington, to Slade Gorton, Attorney General, State of Washington (Mar. 18, 1969), at 1 (attached). Washington was, according to that memorandum, the only state in which the Governor’s absence is not expressly called out in the Constitution as creating a vacancy but that has a statute providing for somebody to serve as acting Governor during such absence. Austin Memorandum at 1. The memorandum suggested that the Governor’s absence from the state was arguably understood by the framers of Washington’s Constitution as a “disability” within the meaning of article III, section 10. Austin Memorandum at 6.

ANALYSIS

            We turn to your question with this background in mind. You ask who becomes the Acting Governor when both the Governor and the Lieutenant Governor are out of state. A careful examination of the constitutional and statutory provisions convinces us that your question is quite difficult. We conclude that when both the Governor and the Lieutenant Governor are absent from the state, the Governor retains, or regains, the authority of office and there is no acting Governor.

            Our analysis must begin with two clearly established points. First, if the Governor leaves the state but the Lieutenant Governor is present then the duties of the Governor devolve upon the Lieutenant Governor. RCW 43.06.040, .050; RCW 43.15.010(2). Second, the Washington Constitution provides that “[i]n case of the removal, resignation, death or disability of the governor” the duties of that office devolve first on the Lieutenant Governor, but if both offices are vacant they further devolve on other statewide officers in order of succession. Const. art. III, § 10.

            The statutes make no mention of the Governor’s authority devolving further down the succession list in article III, section 10. See In re Recall of Inslee, 451 P.3d at 308 (RCW 43.06.040 “is silent on . . . what official may act as governor when both the governor and lieutenant governor are absent.”). It follows that the other statewide executive officers can only serve as Acting Governor if the Constitution itself dictates that result. As Justice Robinson observed in State ex rel. Meyers, since no statute provides for the Governor’s powers to devolve to anyone if both the Governor and Lieutenant Governor leave the state, article III, section 10 (original text) could be the only source of that result. State ex rel. Meyers, 194 Wash. at 507.

            Article III, section 10 begins with two passages that use significantly different terms. The section begins: “In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor[.]” Const. art. III, § 10 (emphasis added). This passage acts to transfer authority only to the Lieutenant Governor, and only in the event of the Governor’s removal, resignation, death, or disability. The second passage addresses what happens in case of a “vacancy” in office, and is the part of section 10 that includes the longer order of succession to other statewide executive officers: “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.” Const. art. III, § 10 (original text) (emphasis added). The text that follows the quoted passage extends that succession list to other statewide executives. Const. amend. 6.

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            A threshold question in the interpretation of article III, section 10 is whether the phrase “removal, resignation, death or disability” is equivalent to the word “vacancy” used in the very next phrase. This question matters because the first phrase references succession only to the Lieutenant Governor. Only the second phrase extends the succession beyond the Lieutenant Governor to other statewide executives.

            The most natural reading of article III, section 10, is that the word “vacancy” operates as something of a shorthand referring back to “removal, resignation, death or disability.” The two passages occur within a single sentence, separated by a semicolon and the word “and.” This demonstrates that the second passage continues the thought begun in the first passage, indicating that if neither the Governor nor the Lieutenant Governor may serve, the section continues to the longer line of succession introduced by the second passage. While a semicolon indicates a stronger separation between phrases than does a comma, it “indicat[es] that matter that follows is not restrictive but supplementary.” Dep’t of Labor & Indus. v. Slaugh, 177 Wn. App. 439, 449, 312 P.3d 676 (2013). The second passage also uses the word “disability,” stating that the Secretary of State serves as Acting Governor only “until the disability be removed or a governor elected.” Const. art. III, § 10 (original text). The additional language added by Amendment 6 continues in the same vein, describing vacancies interchangeably with the other nouns. Const. art. III, § 10 (amend. 6).

            Further confirmation that “vacancy” is equivalent to “removal, resignation, death or disability,” is that at the time Washington’s Constitution was adopted, a state statute defined vacancy in office to mean “death,” “resignation,” “removal,” or various other conditions that could be described as “disability,” such as refusal to take the oath of office or conviction of a disqualifying felony. Code of 1881, § 3063 (RCW 42.12.010).

            Moreover, if the phrases were not equivalent it could lead to an absurd result. If the Lieutenant Governor became Governor because of the Governor’s “removal, resignation, death or disability,” but that did not amount to a vacancy, and something then happened to the Lieutenant Governor that prevented him from serving but did not amount to a “vacancy,” the second passage of the first sentence of article III, section 10 would not be triggered, and the State would have no chief executive. We cannot comprehend that the Constitution was drafted to reach this result. See State v. Hall, 168 Wn.2d 726, 737, 230 P.3d 1048 (2010) (courts avoid interpretations leading to absurd results where possible).

            For all of these reasons, we construe article III, section 10 based on the conclusion that “removal, resignation, death or disability” is equivalent to the word “vacancy.”

            We next consider whether the Governor’s absence from the state constitutes a “removal, resignation, death or disability” or “vacancy” within the meaning of article III, section 10. As Justice Robinson observed in State ex rel. Meyers, because no statute provides for the Governor’s powers to devolve to anyone if both the Governor and Lieutenant Governor leave the state, article III, section 10 could be the only source of that result. State ex rel. Meyers, 194 Wash. at 507.

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            It is beyond dispute that the Governor’s absence from the state does not amount to “death” or “resignation.” It is nearly as obvious that absence from the state does not amount to “removal,” because the context clearly indicates that “removal” means removal from office rather than geographic removal from the state. Indeed, the Constitution uses “removal” in other clauses, including in article IV, section 9 (removal of judges, attorney general, etc.), article IV, section 31 (commission on judicial conduct), and article V, section 3 (removal from office). In these clauses, removal creates a permanent vacancy in the office due to the officer’s misconduct. Thus, the only serious question is whether absence from the state might qualify as a “disability” and thereby a “vacancy” under the Constitution.

            Washington courts give the words of the Constitution “their common and ordinary meaning, as determined at the time they were drafted.” League of Educ. Voters v. State, 176 Wn.2d 808, 821, 295 P.3d 743 (2013) (quoting State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969)). The plain meaning of a word may be determined according to a contemporaneous dictionary definition. See Washington Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 481, 90 P.3d 42 (2004) (relying on dictionaries contemporaneous with the drafting of the Constitution to construe its terms). A dictionary roughly contemporaneous with the Constitutional Convention defined “disable” as “to make unable, disqualify.” Rev. Walter W. Skeat, An Etymological Dictionary of the English Language 168 (2d ed. 1884). The same dictionary defined “vacation” to include “to be empty, to be free from, to be unoccupied.” Id. at 678. A second dictionary, dating from just after statehood, defines “disability” as “1. Lack of ability of some sort; impotence; the state of being disabled; a crippled condition . . . . 2. Lack of competent means; inability; as the disabilities of poverty. 3. Legal incapacity or inability to act; as, the disability of lunatics and infants.” A Standard Dictionary of the English Language 519 (1897). The latter dictionary defined “vacancy” to mean, in relevant part, “[a]n unoccupied post, place, or office[.]” Id. at 1986. These definitions do little to resolve the question. They neither clearly include absence from the state as a disability or vacancy nor entirely exclude the possibility that the drafters of the Constitution understood those terms to encompass absence from the state.

            The Constitutional Convention based the original text of article III, as a whole, on the constitutions of Oregon, Colorado, and California, as well as the proposed Washington Constitution of 1878 and the Hill Constitution of 1889.[2] Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution 91 (2d ed. 2013). The framers also relied upon the constitutions of California and Wisconsin for provisions affecting the Lieutenant Governor, in particular. Id. at 97. The constitutions of California, Colorado, and Wisconsin that were in effect in 1889 provided explicitly for an Acting Governor when the Governor left the state. Cal. Const. art. V, § 16 (1880) (specifying the Governor’s absence from the state among the circumstances under which the

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Lieutenant Governor becomes Acting Governor); Colo. Const. art. IV, § 13 (same); Wis. Const. art. V, § 7 (1848) (same). The proposed Washington Constitution of 1878 provided likewise. Proposed Washington Constitution art. VII, § 6 (1878).[3] But the Oregon Constitution and the Hill Constitution did not. Or. Const. art. V, § 8 (1857); Hill Constitution at 41 (art. V, § 12).

            The original text of Washington’s article III, section 10 closely paralleled both its Oregon counterpart and the Hill Constitution, indicating that the delegates chose the model under which the Governor’s powers are not constitutionally divested upon absence from the state.[4] The delegates to Washington’s Constitutional Convention omitted the reference to the Governor’s absence from the state that was found in most of the provisions the Convention took as its model for the section. This strongly suggests that the delegates chose to follow the examples of Oregon and the Hill Constitution, and intended that the Governor would not be divested constitutionally of authority upon leaving the state. See Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007) (a difference in phrasing suggests a difference in meaning).

            Similarly, the words “disability” and “vacancy” are used in other constitutional provisions without any implication that they arise when an office holder leaves the state. See, e.g., Const. art. IV, § 31 (provision governing the Commission on Judicial Conduct in the context of a condition that precludes a judge from performing judicial duties), art. II, § 15 (vacancies in legislature and in partisan county elective office), art. III, § 13 (vacancy in appointive office), art. IV, § 3 (vacancy in the office of a supreme court judge), art. IV, § 5 (vacancy in the office of a superior court judge), art. XI, § 6 (vacancies in township, precinct, or road district office). It seems unlikely that the drafters of the Constitution would use the words “disability” or “vacancy” to include absence from the state in one provision while using it differently in others. See Simpson Inv. Co. v. Dep’t of Revenue, 141 Wn.2d 139, 160, 3 P.3d 741 (2000) (use of the same word in different places indicates the same meaning).

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            Authorities from other states whose constitutions do not expressly provide for an Acting Governor when the Governor leaves the state are persuasive as well. The Kansas Supreme Court concluded that temporary absence from the state was not an “other disability” within the meaning of the Kansas Constitution. Markham v. Cornell, 136 Kan. 884, 18 P.2d 158, 162 (1933). The Kansas court reasoned that having used the constitutions of other states as models, if the constitutional convention had intended to require an Acting Governor when the Governor was out of state it would have said so directly as did the constitutions of other states. Id. The Florida Supreme Court has similarly concluded that without direct constitutional text addressing the Governor’s absence, a 30-day absence from the state on official business did not create an “inability to discharge official duties.” In re Advisory Opinion to the Governor, 112 So. 2d 843, 847 (Fla. 1959). Several Attorneys General have reached the same conclusion. Op. Att’y Gen. 78-012 (Del. 1978); Op. Att’y Gen. 550 (Iowa 1980); Informal Letter Opinion from H. Wright Volker, Counsel to the Attorney General, State of Utah, to David S. Monson, Lt. Governor, State of Utah (No. 81-69 Jan. 18, 1982).

            We considered two arguments that could support a contrary conclusion, under which a court might conclude that the Governor’s absence from the state constitutes a disability or vacancy that would cause the duties of office to devolve upon others. But we ultimately find neither persuasive.

            The first relates to when the legislature enacted the three statutes that provide for the Governor’s duties to fall to the Lieutenant Governor in the Governor’s absence. RCW 43.06.040, .050; RCW 46.15.010(2). The first state legislature enacted the first two of those provisions at its first legislative session after statehood. See Laws of 1889-90, ch. 20, §§ 4, 6, page no. 629. It might therefore be argued that this early statute reflected an understanding of article III, section 10 (original text) by the first legislature that the Constitution contemplated an Acting Governor when the Governor left the state. See Austin Memorandum at 6 (speculating that because RCW 43.06.040 was enacted at the first legislative session after the ratification of the Constitution, it “arguably” reflects “a contemporaneous construction of . . . Article III, § 10 of the state constitution”). This would indicate that “in the minds of the first state legislature (comprised of many persons who had also been delegates to the Constitutional Convention) the governor’s absence from the state was regarded as a ‘disability’ within the meaning of the constitution.” Austin Memorandum at 6. A court may look to historical context to construe a constitutional provision if there is ambiguity. League of Educ. Voters, 176 Wn.2d at 821. But here the legislative history of the 1890 Act reveals no discussion of the Governor’s absence from the state. And the plain text of the Constitution omits any reference to the Governor’s absence from the state, unlike the language of other constitutions that the Constitutional Convention used as models. It seems likely in historical context that the first legislature enacted the statutes precisely because it understood the Constitution not to reach that result directly and found a provision for an Acting Governor desirable in light of the communications available in that era.

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            A second potential argument against our conclusion that the Constitution does not deprive the Governor of his authority of office when he leaves the state is the general historical understanding that those duties devolve on others in the Governor’s absence. See State ex rel. Meyers, 194 Wash. at 509 (Robinson, J., concurring) (noting the general understanding that the Governor’s powers and duties devolve on the Lieutenant Governor and the Secretary of State in turn); see also id. at 512 (Geraghty, J., concurring) (same); AGO 1938, at 319-20; AGO 51-53 No. 469, at 4 (stating in passing that RCW 43.06.050 assigns “additional duties to the lieutenant governor and also . . . other state officials in the absence of the governor”); Austin Memorandum at 6. But this understanding has never been articulated in a published judicial decision, other than in a hastily prepared concurring opinion in State ex rel. Meyers, 194 Wash. at 507 (Robinson, J., concurring). And the only other judicial opinion expressing a view on the matter reached the opposite conclusion. Id. at 512 (Geraghty, J., concurring). With this question squarely presented for our resolution, we conclude that the best reading of the constitutional text is that absence from the state does not amount to a “disability” or “vacancy,” especially given our framers’ use of other constitutions as models, described above.[5]

            We conclude that article III, section 10 does not constitutionally divest the Governor of the authority of office when absent from the state, and by statute when the Governor leaves the state the Lieutenant Governor serves as Acting Governor. Having resolved those points, your question remains unanswered: Who may exercise the authority of the Governor when both the Governor and the Lieutenant Governor are absent from the state?

            There are three possible answers to your question: (1) The Governor; (2) the Lieutenant Governor; or (3) nobody. We can eliminate the third possibility most easily. The lengthy line of succession to the Office of Governor set forth in the Constitution is clearly designed so that there would never be a void in office, in which nobody could exercise the authority of Governor. Const. art. III, § 10. This leaves a choice between concluding that the powers of the Governor are vested in the Elected Governor or in the Lieutenant Governor. The choice is again clear. It seems plain that in that scenario the powers of the office would be vested in the person elected to that office, and not in a different officer. We realize that in the situation in which the Governor leaves the state first, and the Lieutenant Governor departs later, there would be a time in which the Lieutenant Governor would serve as Acting Governor pursuant to statute and the authority of the office would return to the Governor even though the Governor remains absent. But with no statutory or constitutional provision specifying that the authority would lie elsewhere, this result is inescapable.

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            We therefore conclude that if the Governor leaves the state and the Lieutenant Governor remains in the state, the Lieutenant Governor serves as the Acting Governor. But if the Lieutenant Governor is also absent, there is no provision of law vesting the Governor’s authority in anybody other than the Elected Governor.[6]

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

JEFFREY T. EVEN
Deputy Solicitor General
360-586-0728

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