Wyoming Advisory Opinions October 16, 1990: AGO 1990-008 (October 16, 1990)

Wyoming Attorney General Opinions

1990.

AGO 1990-008.

FROM: Joseph B. Meyer Attorney General

Rowena L. Heckert Senior Assistant Attorney General

QUESTION: If a member of the Wyoming House of Representatives is chosen to fill a vacancy in the Senate after he has been reelected to the House but before he has been sworn in, when does a vacancy occur?

ANSWER: A vacancy occurs immediately and may be filled for the remainder of the term, that is, through 6 January 1991. Then on 7 January 1991, when the reelected representative would have been sworn in, another vacancy will occur for the two year term.

DISCUSSION

These questions arise because of the anticipated resignation of a member of the Wyoming Senate, Dan Sullivan, some time after the November election. His replacement may be a current member of the House who may be reelected for another two year term. Because of the timing of the resignation of Dan Sullivan, the Senate vacancy may be filled before the newly elected members of the Legislature are sworn in.

The Election Code states that a vacancy occurs when a member resigns and that it is filled after notification by the board of county commissioners to the chairman of the county central committee of the political party of the previous incumbent. W.S. 22-18-101 and 111. The central committee then has ten days in which to meet and choose three persons qualified to fill the vacancy. Within five days of receipt of these names, the county commissioners must appoint one to fill the vacancy. W.S. 22-18-111(a)(ii).

Resignation of a senator will result in the appointment of someone to fill the vacancy for the remainder of his term, which in this case is until 4 January 1993. The next general election is in November 1992 at which time a successor will be elected.

The real question concerns the effect of appointing a Representative to fill the Senate vacancy after the election and before 7 January 1991. This will also result in a vacancy in the House for the remainder of the term being served which, of course, also ends 7 January 1991. The same procedure is followed for filling this vacancy. W.S. 22-18- 111(a)(ii).

If the appointed representative is a candidate for reelection, he may also be a representative-elect at the time the House vacancy occurs. If not, then no additional vacancy will occur. If so, when the new term begins 7 January 1991, another vacancy will occur for the duration of the two year term. Ballantyne v. Bower, 17 Wyo. 356, 99 P. 869 (1909), People ex rel. Warren v. Christian, 58 Wyo. 39, 123 P.2d 368 (1942). It is only upon the actual occurrence of the vacancy that it may be filled, and the vacancy does not exist until the term begins. The language of W.S. 22-18-101 states:

(a) A vacancy shall occur in an elective office if during his term the incumbent either:

* * *

(ii) Resigns;

* * *

(vi) Refuses to take the oath of office ...

(b) A vacancy exists in an elective office, if upon expiration of the term for which a person was elected a successor has not been elected and qualified.

The language in (a) above seems to exclude the present situation by referring to an "indumbent" and events which might occur "during his term." Instead we have a representative-elect who may resign before the beginning of his new term which suggests the statute does not apply. However, both the sixth contingency and subsection (b) suggest the legislature did intend for this situation to create a vacancy.

One cannot refuse to take the oath of office as an incumbent during his term. Giving the plain and ordinary meaning to the words used in (vi), it is only possible to refuse to take the oath of office before one becomes an incumbent and begins to serve his term. To construe (vi) as having no effect because it is inconsistent with (a) is clearly contrary to the intent of the legislature. It should be given effect despite the inconsistency. Subpart (vi) would never have been included had the legislature not intended it operate despite its inconsistency with the language of (a).

Also, subsection (b) would apply because on 7 January 1991, the incumbent's term will have expired and the representative-elect will have resigned and will therefore no longer be qualified to serve. Thus a vacancy will exist which may be filled pursuant to W.S. 22-18-111.

Obviously the same person may be appointed to fill both vacancies in the House due to the resignation of an incumbent representative-elect, but it will require two separate appointments, each made following the procedures of W.S. 22- 18-111(a)(ii). Should all the members of the county central committee and the board of county commissioners agree, the process for filling the second House vacancy may all occur the day of the vacancy occurs, 7 January 1990, so that the newly appointed member may be sworn in very shortly after the other members of the House.

Let us offer a word of caution, however. In the early days after the election, the representative-elect may face an election contest based upon his appointment to the Senate and consequent ineligibility to serve in the House. We believe it is self-evident that a person can not be a member of the House and Senate at the same time. W.S. 22-17-101, 109 and 110. Any qualified elector may bring such a contest by serving the representative-elect with the appropriate petition within fifteen days after the results of the election have been certified by the state canvassing board and filing the petition with the Secretary of State before the session begins.

The House of Representatives is the final arbiter of a contested election of one of its members, and its decision is conclusive and not subject to judicial review. W.S. 22-17-109, 113. In other election contests for offices to be filled by more than one candidate, a court of law is authorized to declare the unsuccessful candidate with the highest number of votes to be elected. W.S. 22-17-108. The House could also choose this remedy if the contestant prevails and avoid the occurrence of a second House vacancy even though its decision would come after the start of the legislature session.

Because the statutes do not contemplate the expected situation, resolution of the questions does become rather complicated.