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AGLO 1976 No. 51 - August 23, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- JUDGES ‑- APPLICABILITY OF RCW 29.21.015 TO JUDICIAL ELECTIONS

RCW 29.21.015, as amended by § 2, chapter 120, Laws of 1975-76, 2nd Ex. Sess., does not apply to the election of superior court and appellate court judges so as to mean that if only two candidates have filed for a given position as judge of the superior court or court of appeals no primary will be held and, instead, the names of both candidates will be required to appear on the ensuing general election ballot.

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                                                                 August 23, 1976

Honorable Kent Pullen
State Senator, 47th District
22844 172nd Avenue S.E.
Kent, Washington 98031                                                                                                               Cite as:  AGLO 1976 No. 51

Dear Senator Pullen:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Does RCW 29.21.015, as amended by § 2, chapter 120, Laws of 1975-76, 2nd Ex. Sess., apply to the election of superior court and appellate court judges so as to mean that if only two candidates have filed for a given position as judge of the superior court or court of appeals no primary will be held and, instead, the names of both candidates will be required to appear on the ensuing general election ballot?

            We answer the foregoing question in the negative.

                                                                     ANALYSIS

            As amended by § 2, chapter 120, Laws of 1975-76, 2nd Ex. Sess., RCW 29.21.015 reads as follows:

            "No primaryelection shall be held for any single position in any city, town, or district, as required by RCW 29.21.010, as now or hereafter amended, if, after the last day allowed for candidates to withdraw, there are no more than two candidates filed for ((each))the position to be filled:  PROVIDED, That whenever it shall be necessary to hold a primary election for any one such position because of the number of candidates remaining filed, no primary election shall be held for any other position for which no more than two candidates have remained as filed.  ((In such event))  Insofar as such positions not being subjected to a primary election are concerned, the ((city clerk))county auditor shall ((immediately notify all candidates concerned and if the county auditor has jurisdiction of such primary election, he shall  [[Orig. Op. Page 2]] also be notified))as soon as possible notify all the candidates so affected.  Names of candidates that would have been printed upon the ((city)) primary ballot, but for the provisions of this section, shall be printed upon the ((city)) general election ballot alphabetically in groups under the designation of the respective titles of the offices for which they are candidates."

            Conversely, although it is not applicable to the election of judges of the court of appeals, Article IV, § 29 (Amendment 41) of our state constitution contains the following provision with respect to the election of superior court judges:

            ". . .  If, after any contested primary for superior court judge in any county, only one candidate is entitled to have his name printed on the general election ballot for any single position, no election shall be held as to such position, and a certificate of election shall be issued to such candidate: . . ."

            Also to be noted in connection with the foregoing is RCW 29.21.150 which, as amended by § 5, chapter 120, supra, reads as follows:

            "The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes at the primary for a single nonpartisan position shall appear on the general election ballot under the designation therefor:  PROVIDED, That in elections for justices of the supreme court, judges of the court of appeals and judges of the superior court, ((for justices of the peace,)) and for state superintendent of public instruction, ((and for directors of first class school districts,)) if any candidate in the primary receives a majority of all the votes cast for the position, only the name of the person receiving the highest vote shall be printed on the general election ballot under the designation for that position, followed by a space for the writing in of any other name by a voter ((:  PROVIDED FURTHER, That the provisions of Article IV, Section 29 of the Washington Constitution shall apply to offices of judges of the court of appeals)).

             [[Orig. Op. Page 3]]

            Clearly, both of the two last quoted provisions, Article IV, § 29 (Amendment 41) and RCW 29.21.150, contemplate the conduct of a contested primary even where only two candidates have filed for a given judicial position on the state court of appeals or a superior court.  If this occurs in connection with a campaign for election to the superior court then Article IV, § 29 (Amendment 41), supra, comes into play and the candidate receiving a majority of the votes cast for the position in question, being entitled under RCW 29.21.150 to have his name appear alone on the ensuing general election ballot, is to be issued a certificate of election following the primary unless, as is further provided for by the constitution, notice is given that a write‑in campaign will be conducted.1/   On the other hand if the race is for a position on the court of appeals, Article IV, § 29 (Amendment 41) does not operate and, instead, with the deletion of the final proviso previously appearing in RCW 29.21.150, supra, the single candidate receiving a majority of the votes cast for the position in question is entitled to have his name appear, alone, on the ensuing general election ballot.

            In our opinion, the foregoing remains a correct statement of the law governing the election of superior court and appellate court judges notwithstanding the recent changes in the language of RCW 29.21.015,supra, which were enacted earlier this year by § 2, chapter 120, Laws of 1975-76 2nd Ex. Sess.  That statute, even as amended, only applies in the case of city, town or district elections.  There can be no doubt but that election of a superior court judge or judge of the state court of appeals does not involve the conduct of either a city or county election.  By the same token, in our opinion, it does not involve the conduct of a  [[Orig. Op. Page 4]] "district" election either ‑ as that term is used in RCW 29.21.015, supra.

            It is true, of course, that at least some superior court and appellate court judges are elected on the basis of geographically defined judicial districts.  See, Wash. Const., Article IV, § 5, relating to the election of superior court judges, and RCW 2.06.070 and related statutes with respect to the election of judges of the state court of appeals.  But the election at which such judges are selected does not constitute a district election for the reason that both categories of judges are state judicial officers and not merely the officers of a subordinate municipal corporation, political subdivision or taxing district.

            The conclusion which we here reach is further supported by the long-established principle that where a statute is open to two constructions, one of which will serve to preserve its constitutionality and the other which will render it open to grave doubt in that respect, the former and not the latter is to be adopted.  See, e.g.,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 268, 150 P.2d 839 (1944), and cases cited therein.  In view of the express directive of Article IV, § 29 (Amendment 41) of our constitution,supra, it seems evident to us that any attempt to read RCW 29.21.015,supra, as amended, to include the election of superior court judges would necessarily have to be rejected under this last cited rule of statutory construction.  If RCW 29.21.015, for that reason, is deemed to be inapplicable to the election of superior court judges there would most certainly appear to be no logical reason to read it, nevertheless, as being applicable to the election of judges of the state court of appeals even though no similar constitutional barrier to such a construction would exist in the latter case.

            Based upon the foregoing reasoning, we therefore answer your question, as above paraphrased, in the negative.  RCW 29.21.015, even as amended by § 2, chapter 120, Laws of 1976, 2nd Ex. Sess., does not apply to the election of superior court and appellate court judges so as to eliminate the necessity of a primary if only two persons file for any such judicial position.  Instead, in such a case the names of both candidates will appear on the primary ballot as still contemplated by RCW 29.21.150, supra, and, in the case of candidates for superior court, by Article IV, § 29,supra, as  [[Orig. Op. Page 5]] well.2/   Then, if a single candidate receives a majority of the total number of votes cast for the position that candidate, if for the superior court, will receive a certificate of election under the constitutional provision and statute unless notice of a write‑in campaign is given; and if the candidate, instead, is seeking election to the court of appeals the provisions of RCW 29.21.150,supra, will operate so as to cause his or her name to appear alone on the general election ballot.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Accord, the language of the following proviso to Article IV, § 29 (Amendment 41), supra, as approved by the voters at the November, 1966, state general election:

            ". . .  Provided, That in the event that there is filed with the county auditor within ten days after the date of the primary, a petition indicating that a write in campaign will be conducted for such single position and signed by one hundred registered voters qualified to vote with respect of the office, then such single position shall be subject to the general election. . . ."

2/The fact that RCW 29.21.150 was also amended by the same 1976 act as was RCW 29.21.015, without any change in the pertinent language thereof regarding judicial positions at the appellate or superior court levels, would also seem to lend support to the conclusion which we have reached.

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