Wyoming Advisory Opinions June 15, 1989: AGO 1989-010 (June 15, 1989)

AGO 1989-010.

DISCUSSION

The Wyoming Election Code provides that when a vacancy exists in the Wyoming Senate, the County Central Committee of the party of the person who created the vacancy must provide to the Board of County Commissioners the names of three individuals qualified to fill the vacancy. W.S. 22-18-111(a)(ii). According to the Wyoming Constitution, Article III, Section 2, a state senator must be at least twenty-five years old, a citizen of the United States and of Wyoming, and a resident of the county or district from which he is elected for at least the preceding twelve months. From these qualified persons, the Board must select one to fill the vacancy.

The question has now arisen whether a current member of the Wyoming House of Representatives may be appointed to fill a senate vacancy. At first glance, Article III, Section 8 of the Wyoming Constitution would seem to preclude the appointment of a member of the Wyoming House of Representatives to fill a vacancy in the Senate:

Sec. 8 Members disqualified from other office. - No senator or representative shall, during the term for which he iselected, be appointed to any civil office under the state, and no member of congress or other person holding an office (except that of notary public or an office in the militia) under the United States or this state, shall be a member of either house during his continuance in office.

The precise question becomes whether appointment to another house of the legislature constitutes a prohibited appointment to a "civil office" under this constitutional provision. Clearly, if it does, resignation from the first house will not alter the prohibition of appointment to the second.

"Civil office" has been defined in many different contexts. Initially it is usually distinguished from a military office, State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 413, (1927), citing with approval State ex rel. Summerfield v. Clarke, 21 Nev. 333, 31 P. 545, (1892). A civil office has been defined to mean a public position to which a portion of the sovereignty, either legislative, executive, or judicial, attaches and which is exercised for the benefit of the public. State ex rel. Barney v. Hawkins, supra, 257 P. at 414.

Other judicial definitions distinguish a civil office from mere employment and add such distinguishing characteristics as creation of the position by statute or constitution, with duties which extend for a fixed term or permanently, rather than occasionally or temporarily, and with duties which must generally be performed independently and without control of a superior power other than the law. Id. at 418. See also State ex rel. Hamblen v. Yelle, 185 P.2d 723, 728 (Wash. 1947), State ex rel. Brown v. Blew, 145 P.2d 554, 556 (Wash. 1944), Gillespie v. Barrett, 268 Ill.612, 15 N.E.2d 513, 515, 516, (1938).

To understand the prohibition against a legislator'sattaining a civil office found in Article III, Section 8 of the Wyoming Constitution, one must examine its background. Because this kind of prohibition is common, courts have often discussed its purpose, going back to the basic separation of the powers of government, which requires that no person inone branch exercise any power properly belonging to either of the others, unless expressly permitted to do so. TheIllinois Constitutional provision stating that "[n]o person elected to the ge-s.ral assembly shall receive any civil appointment" was designed to prevent members "from holdingother remunerative civil positions, often requiring them to perform duties wholly incompatible with the public service they were chosen to render." Under this rationale, appointment to the other house of the legislature would create no such problems. Id. at 515, 516.

Similarly, when the Supreme Court of Michigan construed a city charter containing a parallel prohibition against council members' accepting appointments to any city offices, the court stated the purpose of such laws and charters is "to prevent officers from using their official positions in the creation of offices for themselves or for the appointment of themselves ..." People ex rel. Ellis v. Lennon, 86 Mich. 468, 49 N.W. 308, 310 (1891). Stating it even more bluntly, the Supreme Court of Washington, en banc, wrote that the purpose of such a constitutional provision was to prevent the acceptance by a legislator of any position which creates the opportunity for private aggrandizement, pecuniary in nature or otherwise. State ex rel. Hamblen v. Yelle, supra, at 730. It was designed to prevent legislators from acquiring positions on the state payroll which might prevent their maintaining a desirable independence of mind. Id. at 730, quoting Chenoweth v. Chambers, 33 Cal. App. 104, 164 P. 428 (1917). The California Appellate Court noted that a member of the legislature is already an officer holding a position of trust under the state government and that "those who execute the laws should not be the same individuals as those who make the laws" because "a legislator who is holding a position on the state payroll is too apt to allow the wishes of the one responsible for his appointment to decide the manner in which his vote shall be cast." Id. at 429.

The above-cited rationale is entirely consistent with the language of Article III, Section 8, and with the interpretation limiting the prohibition to civil offices in either of the other two branches of state government. Allowing for the appointment of a member of the house to fill a vacancy in the senate would not promote the kinds of activity sought to be discouraged: creating paid positions by and for legislators or permitting the same individual to wield power in two branches of government at the same time.

One final consideration is the language of Article III, Section 10, Wyoming Constitution, which provides that "each house shall choose its other offices, and shall be the judge of the election returns and qualifications of its members." It would be inappropriate for this office to foreclose the possibility of such an appointment unless clearly required by the constitution. The determination is not to be made by the judiciary either, as was emphasized by the Wyoming Supreme Court in holding that "this court has not been invested with the power to pass upon the wisdom of the legislative branch of the government in determining the qualifications of its members." State ex rel. Schieck v. Hathaway, 493 P.2d 759, 764 (Wyo. 1972).

CONCLUSION

It is our view that the appointment of a member of the Wyoming House of Representatives to fill a vacancy in the Wyoming Senate is permissible. The purpose of Article III, Section 8 of the Wyoming Constitution was to assure that a legislator did not create a position for himself in either the executive or the judicial branch of government.