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AGO 1952 No. 325 - June 13, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

JUDGES ‑- SUPERIOR COURT ‑- TERM OF OFFICE ‑- REGULAR FOUR-YEAR TERM ‑- PERIOD OF ‑- SHORT OR TAG END TERM

Judges for the regular and original full four-year term for all offices of superior court judge are to be elected at the general election in November, 1952, and such term of office will begin on the second Monday in January, 1953.  If an incumbent superior court judge holds office as an appointee of the Governor to fill a vacancy resulting from the creation of an additional judgeship, there is also a short term for the period from the date of the November, 1952, general election to the beginning of the regular term in January, 1953, to which a candidate may be elected.

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                                                                   June 13, 1952

Honorable Murray E. Taggart
Prosecuting Attorney
Walla Walla County
Walla Walla, Washington                                                                                                              Cite as:  AGO 51-53 No. 325

Dear Sir:

            We wish to acknowledge receipt of your letter of May 26, 1952, regarding the term of office of a judge appointed by the Governor to a superior court judgeship to fill a vacancy resulting from the creation of an additional judgeship for the County of Walla Walla by RCW 2.08.063 (§ 5, chapter 125, Laws of 1951).  As indicated by you, Judge Bradford was appointed by the Governor to the newly created position, pursuant to the provisions of RCW 2.08.069 (§ 8, chapter 125, Laws of 1951).

            In view of Judge Bradford's candidacy for the superior court position in the forthcoming general election, you ask our opinion on the question:

            "* * * does Judge Bradford, if elected, serve until the election of 1954 or until the election of 1956, in other words should his term be designated upon the ballot as a two year or a four year term?"

             [[Orig. Op. Page 2]]

            It is our conclusion that:

            Judges for the regular and original full four-year term for all offices of superior court judge are to be elected at the general election in November, 1952, and such term of office will begin on the second Monday in January, 1953.  If an incumbent superior court judge holds office as an appointee of the Governor to fill a vacancy resulting from the creation of an additional judgeship, there is also a short term for the period from the date of the November, 1952, general election to the beginning of the regular term in January, 1953, to which a candidate may be elected.

                                                                     ANALYSIS

            The statutory provisions relative to the election and terms of office of superior court judges are as follows:

            "There shall be in each of the counties a superior court.  Judges of the superior court shall be elected at the general election in November, 1952,and every four years thereafter."  (Emphasis supplied.)  RCW 2.08.060 (§ 2, chapter 125, Laws of 1951).

            "The judges of the superior court shall hold their offices for a term of four years from and after the second Monday in January next succeeding their election, and until their successors are elected and qualified."  RCW 2.08.070 (§ 2, chapter 135, Laws of 1927).

            With respect to the filling of vacancies resulting from the creation of additional judgeships, RCW 2.08.069 (§ 8, chapter 125, Laws of 1951), provides in part that:

            "Unless otherwise provided, upon the taking effect of any act providing for additional judges of the superior court and thereby creating a vacancy, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term:  * * *" (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            The above quoted statutory provisions implement § 5, Article IV of the Washington Constitution, governing the election and terms of office of superior court judges.  Section 5, Article IV of the Constitution, reads in part as follows:

            "* * * The first superior judges elected under this Constitution shall hold their offices for the period of three years, and until their successors shall be elected and qualified, and thereafter the term of office of all superior judges in this stateshall be for four years from the second Monday in January next succeeding their election and until their successors are elected and qualified.  The first election of judges of the superior court shall be at the election held for the adoption of this Constitution.  If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term."  (Emphasis supplied.)

            This provision of the Constitution has been construed by our Supreme Court as fixing a uniform, regular full four-year term for all superior court judges beginning the second Monday in January, 1892, and the succeeding terms beginning on the same day every four years thereafter concurrently with the beginning of the terms of other state offices elected for a four-year term.  State ex rel. Dyer v. Twichell, 4 Wash. 715, 31 Pac. 19; State ex rel. Linn v. Millett, 20 Wash. 221, 54 Pac. 1124; and see State ex rel. Sears v. Gilliam, 93 Wash. 248, 160 Pac. 757;State ex rel. Edelstein v. Foley, 6 Wn. (2d) 444, 107 P. (2d) 901.

            Judge Beals, in his dissenting opinion in the Foley case, supra, restated the interpretation which our Supreme Court has consistently followed with respect to the provisions of § 5, Article IV of the Constitution, as follows:

            "* * * Manifestly, the framers of the constitution desired the terms of judges of the superior court to remain constant, and that all the superior court  [[Orig. Op. Page 4]] judges in the state should be elected for four year terms, those first elected for that term to take office the second Monday in January, 1892, others to take office on that day in four year periods thereafter.  The terms having been established at four years, were it not for the last portion of the section, the terms throughout the state would soon become staggered, some four year terms expiring at one biennial general election, other terms expiring at the following biennial election.  This the framers of the constitution guarded against by the language used."

            We are therefore of the opinion that the next original or regular four-year terms of all superior court judgeships, including additional judgeships created by chapter 125, Laws of 1951, begin the second Monday of January, 1953, and that all judges for such four-year terms are to be elected at the ensuing general election in November, 1952.

            We wish to point out, however, that where a vacancy has occurred by the creation of an additional judgeship or otherwise, a "tag end" or short term is also involved.  Under the constitutional and statutory provisions above referred to a judge may be elected to hold office for the remainder of the unexpired term involved‑-that is, for the remaining period between the date of the election to the date of the beginning of the regular four-year term.  The appointee holds office only until the one elected for the short term has qualified.  State ex rel. Linn v. Millett, supra; State ex rel. Sears v. Gilliam, supra; State ex rel. Edelstein v. Foley, supra.

Very truly yours,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General

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