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AGLO 1975 No. 73 - August 19, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- JUDGES ‑- SUPERIOR COURT ‑- DISTRICT COURT

Necessity of an election in November, 1975, for unexpired terms of superior and district court judges in Whatcom county under certain described circumstances.

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                                                                 August 19, 1975

Honorable Jim Matson
State Senator, 14th District
Route 2, Box 2311
Selah, Washington 98942                                                                                                               Cite as:  AGLO 1975 No. 73

Dear Sir:

            By recent letter you have directed our attention to so much of chapter 49, Laws of 1975, 1st Ex. Sess., as establishes a new superior court judgeship in Whatcom county.  You have pointed out that the effective date of this law is September 8, 1975, and have then advised us of the following facts:

            ". . .  An appointment has been made to the new position, effective September 8.  The appointee, a District Court Judge in Whatcom County, has tendered his resignation from the District Court Bench, effective September 8. The County Auditor has accepted filings for both the Superior Court and the District Court positions."

            Based upon the foregoing you have asked us the following questions:

            "(1) Must the Superior Court Judgeship position effective September 8 be subject to an election in 1975?

            "(2) Is it proper for the County Auditor to accept filings for the Superior Court position prior to the effective date of the Act?

            "(3) Should the County Auditor open filings for the Superior Court position after September 8, as provided in RCW 29.21.370 or any other applicable law?

            "(4) Should the County Auditor accept filings for the District Court vacancy before September 8?

             [[Orig. Op. Page 2]] "(5) Should the County Auditor open40, S,S filings for the District Court position after September 8, as provided in RCW 29.21.370 or any other applicable law?"

            We answer your first and third questions in the affirmative and your second, fourth and fifth questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Although the underlying factual basis for your request is the establishment, by the legislature, of an additional superior court judgeship in Whatcom county, the problem presented, from an analytical standpoint, is precisely the same as if the judgeship in question already existed and a vacancy therein were to result from the death or resignation of the incumbent judge as of the date in question ‑ September 8, 1975.

            If that were to occur, Article IV, § 5 of the state constitution would require the governor to 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."

            In this case, the "next succeeding general election" will be the state general election occurring on November 4, 1975, in accordance with the provisions of RCW 29.13.010, which, as last amended by chapter 3, Laws of 1975, 2nd Ex. Sess., reads, in material part, as follows:

            ". . . A state‑wide general election shall be held on the first Tuesday after the first Monday of November of each year:  PROVIDED, That the state‑wide general election held in odd-numbered years shall be limited to (1) city, town, and district general elections as provided for in RCW 29.13.020, or as otherwise provided by law; (2) the election of federal officers for the remainder of any unexpired terms in the membership of either branch of the congress of the United States; (3) the election of state and county officers for the remainder of any unexpired terms of offices  [[Orig. Op. Page 3]] created by whose duties are described in Article II, section 15, Article III, sections 16, 17, 19, 20, 21, 22 and 23, andArticle IV, sections 3 and 5 of the state Constitution and RCW 2.06.080; (4) the election of county officers in any county governed by a charter containing provisions calling for general county elections at this time; and (5) the approval or rejection of state measures, including proposed constitutional amendments, matters pertaining to any proposed constitutional convention, initiative measures and referendum measures proposed by the electorate, referendum bills, and any other matter provided by the legislature for submission to the electorate: . . ."  (Emphasis supplied.)

            Thus, our answer to your first question is in the affirmative.  The person appointed by the governor to fill the new Whatcom county judgeship will only serve until ". . . the election and qualification of a judge to fill the vacancy" at the November 4, 1975, state general election. See, also,State ex rel. Rummens v. Superior Court, 160 Wash. 520, 295 Pac. 730 (1931), and our opinion of September 19, 1968, to the King county prosecuting attorney, a copy of which is enclosed ‑ explaining the necessity for such an election even though the normal filing period provided for in RCW 29.18.030 and RCW 29.21.020 may have closed prior to the occurrence of the vacancy.

            As far as the question of filings for this position is concerned, it appears to us that the situation falls within the purview of chapter 61, Laws of 1972, Ex. Sess., now codified as RCW 29.21.350 ‑ 29.21.410.  The first section of this act (RCW 29.21.350) defines the term "void in candidacy" as follows:

            "A void in candidacy for a nonpartisan office occurs when an election for such office has been scheduled and no valid declaration of candidacy has been filed for the position or all persons filing such valid declarations of candidacy have died or been disqualified."

            In this case there will be such a "void" as of September 8, 1975, because (a) an election will be "scheduled" ‑ by reason of our answer to your first question ‑ for November 4, 1975; and (b) no valid declaration of candidacy will have been filed for the position ‑ as we will note further below in dealing with your intervening second question.

             [[Orig. Op. Page 4]] RCW 29.21.360 then states that:

            "Filings for a nonpartisan office shall be opened for a period of three normal business days, such three day period to be fixed by the election officer with whom such declarations of candidacy are filed and notice thereof given by notifying press, radio, and television in the county and by such other means as may now or hereafter be provided by law whenever before the fourth Tuesday prior to a primary:

            "(1) A void in candidacy occurs;

            "(2) A vacancy occurs in any nonpartisan office leaving an unexpired term to be filled by an election for which filings have not been held; or

            "(3) A nominee for judge of the court of appeals or of the superior court entitled to a certificate of election pursuant to Article 4, section 29, Amendment 41 of the state Constitution, dies or is disqualified.

            "Candidacies validly filed within said three‑day period shall appear on the ballot as if made during the earlier filing period."

            This section of the law, of course, will not apply in the instant situation because the "void in candidacy" will not come into existence until well after the fourth Tuesday prior to the forthcoming September 16, 1975, primary.1/   However, the situationwill come within the scope of the next section of the law, now codified as RCW 29.21.370, the full text of which reads as follows:

            "Filings for a nonpartisan office (other than judge of the supreme court or superintendent of public instruction) shall be  [[Orig. Op. Page 5]] reopened for a period of three normal business days, such three day period to be fixed by the election officer with whom such declarations of candidacy are filed and notice thereof given by notifying press, radio, and television in the county and by such other means as may now or hereafter be provided by law, when:

            "(1)A void in candidacy for such nonpartisan office occurs on or after the fourth Tuesday prior to a primary but prior to the fourth Tuesday before an election; or

            "(2) A nominee for judge of the court of appeals or of the superior court eligible after a contested primary for a certificate of election by Article 4, section 29, Amendment 41 of the state Constitution, dies or is disqualified within the ten day period when a petition for write‑in candidacy may be received.

            "The candidate receiving a plurality of the votes cast for that office in the general election shall be deemed elected."  (Emphasis supplied.)

            Therefore, having answered your first question in the affirmative we also answer your third question in a like manner.  In conformity with RCW 29.21.370,supra, the county auditor of Whatcom county will be required to provide for filings by establishing a special filing period for the county's new superior court judgeship sometime after September 8, 1975, but before the fourth Tuesday prior to the November 4, 1975, election.

            In answer to your second question, since no election can be said to have been scheduled prior to September 8, 1975, in this case, no valid filings could be accepted by the county auditor before that date.  Therefore, any filings which may have been accepted by the auditor during an earlier period must be viewed as being ineffective.  Any persons who filed as candidates during such other period, however, most certainly may refile during the special filing period later to be set in accordance with RCW 29.21.370 ‑ and if they have previously paid a filing fee which has not theretofore been refunded to them, we would think it proper to allow them to file again without the payment of another fee.

             [[Orig. Op. Page 6]]   This disposition of your first three questions leaves us with the matter of the district court judgeship situation which you have also described.  According to your letter, an incumbent district court judge in Whatcom county has been, or is about to be, appointed by the governor under Article IV, § 5,supra, to the new superior court judgeship in issue.  Upon assuming his new office, the judge will resign from his former position ‑ thereby creating a vacancy, as of September 8, 1975, in his "old" district court judgeship.  In anticipation of this occurrence you have asked:

            "(4) Should the County Auditor accept filings for the District Court vacancy before September 8?

            "(5) Should the County Auditor open filings for the District Court position after September 8, as provided in RCW 29.21.370 or any other applicable law?"

            Based upon the conclusions reached by this office in AGLO 1973 No. 76 [[to A. Ludlow Kramer, Secretary of State on July 20, 1973 an Informal Opinion, AIR-73576]], a copy of which we are also enclosing, we must answer both of these questions in the negative.  In the case of a vacancy occurring in a district court judgeship as of September 8, 1975, the vacancy will be filled in accordance with the following provisions of RCW 3.34.100:

            "If any justice dies, resigns, is convicted of a felony, or ceases to reside in the district or fails to serve for any reason except temporary disability, or if his term of office is terminated in any other manner, the office shall be deemed vacant.  The board of county commissioners shall fill all vacancies by appointment and the justice thus appointed shall hold office until the next general election and until his successor is elected and qualified.  Justices of peace shall be granted sick leave in the same manner as other county employees."  (Emphasis supplied.)"

            However, as explained in our prior opinion, because RCW 3.34.100 isnot among the statutes or constitutional provisions mentioned in RCW 29.13.010(3),supra, the "next  [[Orig. Op. Page 7]] general election" in this case willnot be the November 4, 1975, state general election but, instead, it will be the ensuing state general election in November of 1976.  Therefore, no filings for the resulting vacancy will be appropriate until the normal filing period preceding the 1976 election ‑ as provided for in RCW 29.21.020 and RCW 29.18.030.

            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/See, RCW 29.13.070, which states that:

            "Nominating primaries for general elections to be held in November shall be held at the regular polling places in each precinct on the third Tuesday of the preceding September."

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