Wyoming Advisory Opinions July 27, 1984: AGO 1984-007 (July 27, 1984)

AGO 1984-007.

Discussion

Section 22-2-116, W.S. 1977, prohibits dual officeholding in certain circumstances. Specifically, it provides:

No person is eligible for election topublic office in any governmental entity which either provides any funding for or receives any funding from another governmental entity in which that personholds elected public office.

The key language in this statute is "No person is eligible for election . . ." The answer to your question as asked is yes. The question concerns a candidate for nomination to become a candidate for election to the state legislature. "Nomination in a primary is in no sense an election to office." State ex rel. Gramspacher v. Martin Circuit Court, Ind. 102 N.E.2d 666, 668 (1952).

"Eligibility" for election or to hold office has been the subject of many decisions from many courts, but we think that our discussion in this opinion og cases from Oklahoma and West Virginia will illustrate and develop the position wetake.

Article VI, Section 3 of the Oklahoma constitutionprovided in pertinent part:

No person shall be eligible to the office of Attorney General . . . except a citizen of the United States of the age of not less than thirty-one (31) years and who shall have been ten (10) years next preceding his or her election, a qualified elector of this state.

In State ex rel. Findley v. State Election Board of Oklahoma, Okla. 325 P.2d 1037, 1049 (1959), Findley was aqualified elector of the state at the time of submitting his filing, but not yet 31 years of ag and had not been a qualified elector for 10 years preceding the primaryelection. However, he would fulfill both those conditions by a date prior to the general election. The question was whether he had to meet the conditions "prior to hiselection" or "should he meet these requirements prior to any primary election." The court said:

In a primary election one is only nominated, if successful, and not elected to the office he seeks. He can only beelected at the General Election.

Under the facts before us the petitioner will meet the necessary requirements prior to the General Election in November, 1958, when he or some other candidate will be 'elected'and not merely 'nominated.' We can only conclude that Article VI, Section 3, means that the eligible qualificationsprovided therein mean that a candidate must meet these qualifications when elected at the General Election, and not at a Primary Election whereby a candidate may only be nominated as a candidate for election at the General Election.

This does not mean that the Legislature may not impose restrictions that prevent one from having one's name on the primary ballot. Oklahoma had a statute permitting a "qualified elector" to have his name printed on the official ballot of his party "for an office to which he is eligible in any primary election."

In Stafford v. State Election Board, Okla., 218 P.2d 617 (1950), Stafford was found not to a qualified elector at the time he sought to have his name included on the ballot because he was not 21 and would not be 21 until shortly before the general election. He was therefore not qualified to be included on the primary ballot.

In County Election Board of Coal County v. Robinson, Okla., 352 P.2d 920, 923 (1960), a person wanting to run for county attorney did not possess the six months residence in the county necessary to be a qualified elector. He was therefore denied a place on the ballot, the court saying:

We therefore conclude and hold that only a qualified elector as defined by the Constitution and laws of the State ofOklahoma, who is qualified or may become qualified elector in the primaryelection, may become a candidate and have his name printed'on the official ballot of his party in a primary election. We further hold that when a notification and declaration of a person shows on its face the declarant does not possess and cannot possibly acquire the qualifications of a qualified elector on or before a primary election, such notification and declaration is insufficient to warrant acceptance thereof by the election board and such person is not entitled to have his name placed upon a primary ballot as a candidate." (Emphasis added).

The requirement for qualification does not usually speak as of the day of filing for office, for as said in Johnson v. State Election Board, Okla., 370 P.2d 551, 554 (1962):

"It is our conclusion that one who may become a qualified elector at the primary election and has shown his intention in his filing notification and declarationfor a period of more than 30 days before the primary election is entitled to become a candidate and have his name printed upon the official ballot of his party in such primary election."(Emphasis added).

Decisions from West Virginia are also pertinent to your _question. The State constitution provided that no two of the commissioners of the county court should be elected from the same magisterial district. In Fransler v. Rightmire, W.Va. 177 S.E. 288, 289 (1934) it was said:

"It is apparent that the word 'election' as used in the constitution, supra, was intended to refer to the final choice ofthe entire electorate."

The rule so announced was changed by statute which provided that no two such commissioners should be nominated as party candidates within the same magisterial district and no such candidate could be nominated from the same district in which there was already an elected commissioner. Still later the law was amended to read that "candidates for the office should be "nominated and elected" in accordance with the provisions of the constitution. In State ex rel. Brewer et al. v. Wilson et al., W.Va., 150 S.E.2d 592, 598, it wassaid that this provision

"requires, in clear and unambiguous language, that such a candidate shall possess the residence qualifications prescribed by the Constitution at thetime of his nomination."

It was further held, quoting from State ex rel. Morrison v. Freeland, W.Va., 81 S.E.2d 685:

"Where a statute requires that a person to be elected to office shall have aspecific qualification at the time of his election, the requirement is not satisfied by the removal of thedisqualification after election."

Our examination of the general case law and textbook authority, particularized by the cited cases, leads us to the conclusion that the language of the statute governs; that the Legislature may impose restrictions upon the right of any one to seek office at any step in the electoralprocess; but that the words "eligible for election to public office" refer to and are applicable only in the final election process, that is, when the victor in that electionis to be declared the winner of the office and not merely the winner of the right to be a candidate for that office in asubsequent election.

We have reached this conclusion in full awareness of the decision of our own supreme court in State ex rel. Willis v. Larson, Wyo., 539 P.2d 352 (1975). Willis, an incumbent but non-attorney justice of the peace, in June of 1974 sought to file his application for nomination for reelection as justice of. the peace. However, the 1971 Legislature had enacted what is now Section 5-4-201, W.S. 1977, to take effect January 1, 1975, whereby only persons authorized to practice law were "eligible for election to the office." The new term of thejustice of the peace elected at the 1974 election would begin January 6, 1975. The county clerk refused to accept this filing for nomination and Willis brought suit to compel acceptance thereof and to recover damages. The district court denied relief, the case was appealed to the supreme court and appellee's brief was filed therein on the date of the general election. The court held that eligibility was a continuing requirement, and "an officer who is qualified at the time of election but is not qualified at the time of commencement of his term cannot hold the office." The court went on to say, 539 P.2d at 356:

Willis would not have been qualified asan elected justice of the peace under the statute in effect at the time ofcommencement of that term, and the County Clerk acted properly in refusing to accept his filing for the office of thejustice of the peace."

We construe the Willis= opinion to hold that one whocannot establish that he or she would or could have been entitled to take the oath of office at the commencement of the term thereof has no claim for damages against the official who refuses to accept his application fornomination. Willis was not, and there was no showing that he could become within the necessary time be admitted to the practice of law and thereby qualified to be an electedjustice of the peace. On the other hand, a person holding an elected public office "in any governmental entity which either provides any funding for or receives any funding from another governmental entity in which that person holds elected public office" can easily overcome any ineligibility by reason of office-holding by resignation from the conflicting office. Since the requirement, as stated in the statute, is that one must be eligible for election to the public office and, as stated by the court, that he or she be eligible to hold the office, the only requirement in the case presented by your question is that he or she be eligible at the time of his or her election.

Considering your question in light of the language in County Election Board of Coal County, supra, we do not have a situation where a person holding an elected public office of a governmental entity which provides funding to or receives it from another governmental entity in which that person holds elected public office filing for nomination as a party candidate for the Legislature "does not possess and cannot possibly acquire the qualification" before the primary election. Willis in no way denies the right of one who may be eligible at the time of his or her election to office tofile application for nomination.

We believe our conclusion is strengthened the decision in 574, 580 (1974) where it is said:

Absent this cited authofity, however, there is an equally compelling ground why the certified questions must be answered in the negative [thereby establishing eligibility]--that is the basic and universally accepted rule that statutory and constitutional provisions which tend to limit the candidacy of any person for public office or exclude any citizen froM participation in elective process must be construed the favor of the right of the voters in exercise their choice and should to construed strictly and not extended be cases not clearly covered thereby. (citation of cases omitted.)

In conclusion, then, in order to be "eligible for election to public office" as'a member of the Legislature, a person may not be an elected public officer of a governmental entity which either provides funding to or receives it from another governmental entity in which that person holds elected public office. However, since one is not eligible for election until nominated, one may hold such a position until nominated, then resign the conflicting position and thereby be eligible for election to the Legislature.