Saturday, January 31, 2009

Was Karen V's appointment legal?

UPDATE (Wednesday, Feb 4): It is totally legal. Never mind, move along. Nothing to see here.

UPDATE (Tuesday, Feb. 3): So yes, it probably was. As I'd hoped.

Let's just get this out of the way: I sure hope it was, because I want Karen as my next county commissioner.


I'm not sure it was legal. On a totally separate project today I picked up a copy of The Washington State Constitution: A Reference Guide, which includes this passage:

The power of the governor to appoint has been held to extend only to vacancies in the Legislature and and not to vacancies in county elected offices (Munro v. Todd, 1966).
Here is a copy of the Munro v. Todd decision, which seems to point in the same direction:

Thus, a board of county commissioners with one vacancy is a legally constituted body capable of carrying out its legal duties with full constitutional authority, by reason of Art. XI, § 6, to appoint a qualified person to fill a vacancy on the board.

There is no cessation of county government. If the legally constituted board fails to carry out its constitutional duty, it may create a political hiatus (as distinguished from a legal one) for which the two members may be answerable to their constituents; but it does not create a situation in which the legislature may delegate to the governor a duty that the constitution requires must be performed by the board of county commissioners.

Can the governor legally take the decision out of the hands of the county commissioners? A forty year old Supreme Court decision seems to say no.

Any lawyers out there? I'm emailing Hugh Spitzer, one of the co-authors of the 2002 book that I'm citing above. He's at the UW, hopefully I'll get an answer from him quickly.


Mark Derricott said...


This seems to be the authority for the appointment

I didn't read the case you cited, but either this statute has been challenged and upheld by the Supremes or it hasn't in which case someone could potentially challenge it. Since it's in the statute, promulgated by the legislature, I sorta doubt that it could be stricken as I would imagine that the legislature ensured that it was compliant which you could see in any legislative history.

Emmett said...

I took a tour of the legislative history of the RCW and constitutional amendment last night and couldn't come up with anything solid.

The section of the constitution in question was amended in 1967-68, right after Munro v. Todd, but it didnt' seem to address the governor's authority. Spitzer covers that amendment in the book, referring to it as "minor changes."

Also, the RCW regarding the procedure for filling a commission vacancy doesn't show any changes for 1968, which makes me think the constitutional amendment (#52) didn't have an impact on that process.

I'm still very confused.

Mark Derricott said...

It's fascinating because statutes that are straight violative can stay on the books if someone cannot show they are wronged by it. All the stricken New Deal legislation is a good example.

I'd just search on that statute in case law after enacted. If it not has been challenged as unconstitutional, there may be an argument that it is does not comply with the constitution.

Someone would have to argue that they are wronged because of it though. I don't have a clue what that standard would be for a citizen. Susan Bogni might be able to argue that, but then so might Karen.

Assuming the statute was properly enacted, it's going to stay in effect until stricken so I can't see how this is going to affect the appointment process.

I am eagerly awaiting your other irons in the fire though.