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AGO 1980 No. 16 - July 08, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- JUDGES OF THE SUPERIOR COURT ‑- ELECTIONS ‑- PROCEDURE TO FILL NEW JUDGESHIPS

The new superior court judgeships created by chapter 202, Laws of 1979, 1st Ex. Sess. in Pierce, Kitsap and Cowlitz Counties, which are to take effect on January 1, 1981, are not to be filled initially by gubernatorial appointment but, instead, are constitutionally required to be filled by the election process both (a) for the short term from January 1 through 12, 1981 and (b) for the regular four-year term commencing on January 12, 1981. 

                                                              - - - - - - - - - - - - - 

                                                                     July 8, 1980 

Honorable Bruce Chapman
Secretary of State
Legislative Building
Olympia, Washington 98504

 Cite as:  AGO 1980 No. 16                                                                                                                

 Dear Sir: 

            By letter previously acknowledged, you requested our opinion on a question which we paraphrase as follows:

            Are the new superior court judgeships created by chapter 202, Laws of 1979, 1st Ex. Sess. in Pierce, Kitsap and Cowlitz Counties, which are to take effect on January 1, 1981, to be filled initially by gubernatorial appointment or by the election process (a) for the short term from January 1 through 12, 1981 and (b) for the regular four-year term commencing on January 12, 1981?

            For the reasons set forth in our analysis, we conclude that these newly created judgeships are to be filled for both periods by the 1980 election process rather than by appointment.1/    [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            By chapter 202, Laws of 1979, 1st Ex. Sess., the legislature established new superior court judgeships in several counties.  While both that act and a number of the new judgeships created thereby2/ took effect on September 1, 1979, the law provided that those new judgeships authorized for Pierce, Kitsap and Cowlitz Counties would not be effective until January 1, 1981. 

            In considering your question, we first note that the regular term of office for superior court judges in this state is a four-year term commencing on the second Monday in January following their election.  See, Wash. Const., Art. IV, § 5 and RCW 2.08.070.  The elections for those regular terms are held during the same years as presidential and gubernatorial elections are conducted.  Cf., RCW 2.08.060.  Consequently, those terms are uniform, for all superior court judges, beginning and ending on the same date.  State ex rel. Dyer v. Twichell, 4 Wash. 715, 31 Pac. 19 (1892).

            The current regular four-year terms for superior court judges thus began on January 10, 1977 and the next regular terms will begin on January 12, 1981.  In addition, since the particular new judgeships with which we are here concerned will become effective on January 1, 1981, there is a short term from January 1-12, 1981, to be considered along with the next regular term.  See, State ex rel. Murphy v. McBride, 29 Wash. 335, 70 Pac. 25 (1902) and RCW 29.01.180. 

            The key to our disposition of your request is to be found in the fact that although Article IV, § 5 of our state constitution speaks of gubernatorial appointments under certain  [[Orig. Op. Page 3]] circumstances,3/ it basically declares the position of superior court judge to an elective office.  Accord,State ex rel. Murphy v. McBride, supra, in which the Court, in referring to supreme court judges under the materially identical language of Article IV, § 3, said, at page 344: 

            ". . .  The clear intention of this section of the constitution is (1) to require that the judges of this court shall be elected whenever there is an election at which they may be elected; . . ." 

            Likewise, even in holding the appointive process to have been applicable under the particular facts then before it, the Court, in the recent case ofFain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977)‑-which we will note further below‑-said at page 55: 

            "We recognize . . . that the provision for election of judges set forth in our constitution is the 'prime and basic provision and precept' of that article and that the provision for filling vacancies is 'subordinate and supplementary thereto.' . . ."

            Article IV, § 5 doesnot authorize the governor to appoint the initial occupant of all newly created judgeships.  Rather, as quoted in footnote 3, below, it simply provides that the governor has the authority to appointif a vacancy occurs.4/  Thus, the critical issue posed by your question is whether there will be such vacancies as of January 1, 1981,  [[Orig. Op. Page 4]]

in the newly created positions here involved as will then give rise to the governor's appointive power.  In our opinion, there will not. 

             [[Orig. Op. Page 5]]

            Some confusion exists on this point because of what we would regard to be a misreading ofFain v. Chapman, supra.  There, in the spring of 1977, the legislature had, by chapter 311, Laws of 1977, 1st Ex. Sess., created nine additional superior court judgeships but had specifically made both those judgeships and the legislation itself effective only as of November 1, 1977.5/   The question addressed by the Court, in turn, was whether the applicable election officers were to proceed with the 1977 general election process on the assumption that the law, even though not yet effective, should be considered as being in effect for the purpose of determining which offices were to be on the 1977 election ballot.  Accord, AGLO 1977 No. 34.  In responding to that question, the Court concluded as follows, at page 51: 

            "The first issue is at what point a 'vacancy', as that term is utilized in the constitution, will occur in each of these newly created positions.  Petitioner contends no 'vacancy' will exist in the positions here at issue until the act creating them becomes effective.  We agree.  A statute speaks from its effective date and no action may be undertaken pursuant to it prior to that time. . ."  (Emphasis supplied) 

            Thus, for the purpose of conducting an election, the Court reasoned that the new law creating the judgeships simply did not exist until November 1, 1977‑-which was only seven days before the 1977 general election date.  It then observed that: 

            ". . .  It is, however, essential to the voting process that elections be scheduled and held in a manner which is both predictable and orderly . . ." 

            This expression of concern with an orderly election process was consistent with the Court's earlier decisions addressing judicial vacancies.  Thus, inState ex rel. Ferguson v. Superior Court, 140 Wash. 636, 250 Pac. 66 (1926), where a  [[Orig. Op. Page 6]] judge resigned on October 15, 1926 (in the second year of his four-year term) the question presented was whether the vacated office should be included on the November 2, 1926 election ballot.  After first ruling that the election to fill an unexpired judicial term was a special election, the Court then noted that if that election was to coincide with the general election of 1926, it would be necessary to give a statutory 30-day notice of the election.  But since the vacancy had not occurred until barely two weeks prior to the election date, the Court decided that the position was not to be included in the election ballot. 

            By way of contrast, however, in State ex rel. Rummens v. Superior Court, 160 Wash. 520, 295 Pac. 730 (1931) the facts involved a supreme court judge who died on September 13, 1930, in the fourth year of his six-year term.  But even though the vacancy thus occurred after the primary, the Court concluded that there still sufficient time prior to the scheduled November election to include the position on the ballot for an election to fill the unexpired portion of the term. 

            Bearing these decisions in mind and reading them in the light ofFain v. Chapman,supra, we are of the view that the critical factor inFain was that the law itself did not there become effective until November 1, 1977, and thus its effective date coincided in time with the creation of the new judicial positions.  Here, on the other hand, the instant law creating the subject positions became effective on September 1, 1979.6/   And therefore, in this case, the election officials, in carrying out their responsibilities for the 1980 election, can even now look to a statute which is currently in full force and effect‑-notwithstanding that certain of the positions created by that law will not take effect until a future date (i.e., January 1, 1981). 

            Having thus identified that critical point of distinction between the instant situation and theFain case, the remainder of the puzzle may now be put into place. 

             [[Orig. Op. Page 7]]

            (a)The Full Term Question: 

            Under RCW 29.18.030 (read together with RCW 29.21.020) the filing period for declarations of candidacy for the superior court this year will be the week of July 28 ‑ August 1, 1980.  And, under RCW 29.21.110 the various elections officials (i.e., both the county auditors and you, as secretary of state) are to designate "the [superior court] positions to be filled by consecutive numbers."  In our opinion, since the laws creating them are already in effect, it therefore follows that the new judicial positions here in question should be included within the positions thus designated and filled by the election process in accordance with the constitution (Article IV, § 5), supra. 

            Clearly, the various elections officers involved with have no problem doing this under the state election code with reference to the four-year terms commencing on January 12, 1981.  Those terms should obviously be treated just like all other regular superior court terms to be filled during the fall, 1980, election process. 

            (b)The Short Term Question: 

            But what of the earlier, January 1-12, 1981, period?  First, this term is also constitutionally required to be included in the election process since an orderly election for that term can be timely held.  The question is simply how to handle filings. 

            We have throughout this opinion referred to the January 1-12, 1981, period as a "short term."  Technically, however, our use of that phrase does not fully comport with the definition of "short term" in RCW 29.01.180, which provides: 

            "'Short term' means the brief period of time starting upon the completion of the certification of election returns and ending with the start of the full term on the second Tuesday of the next January immediately following the election and is applicable only when the office concerned is being held by an appointee to fill a vacancy which occurred after the last election, at which such office could have been voted upon for an unexpired term, prior to the election for such office for the subsequent full term." 

             [[Orig. Op. Page 8]]

            Two elements in that statutory definition are not here present because: 

            (1) The offices here involved will not be occupied by an appointee at the time of the election; and 

            (2) The persons elected will not assume office until January 1, 1981, whereas the statute refers to assuming office upon certification of the election returns; and this year, that certification must be completed no later than December 4, 1980.  See, RCW 29.62.120. 

            Nevertheless, we believe it is the procedure governing such short terms which should here be utilized.  In so concluding we note that the above‑quoted definition of "short term" was included in a comprehensive bill relating to nonpartisan elections as § 14, chapter 120, Laws of 1975-76, 2nd Ex. Sess.  In addition, the same act added the following proviso to RCW 29.21.140: 

            ". . .  That when both a short term and a full term for the same position are scheduled to be voted upon,a single declaration of candidacy accompanied by a single filing fee shall be construed as a filing for both the short term and the full term and the name of such candidate shall appear upon the ballot for the position sought with the designation 'short term and long term'.  The candidate elected to both such terms shall be sworn into and assume office for the short term as soon as the election returns have been certified and shall again be sworn into office on the second Monday in January following the election to assume office for the full term."  (§ 4,supra) (Emphasis supplied) 

            The problem which the legislature addressed by adding that proviso was the confusion that existed when voters encountered the same names on the ballot for apparently the same but actually different positions.  By combining the short and regular terms, the confusion was eliminated and the ballot was not unduly lengthened.  Further, the legislature recognized that the duration of the short term would be less than two months, more commonly approximately five weeks, and that it was not reasonable to require a separate filing fee for that short period nor complicate the election process for that short term. 

             [[Orig. Op. Page 9]]

            The legislative purposes addressed by RCW 29.21.140 will obviously be met by here considering the short term of January 1-12, 1981, as constituting a short term within the meaning of RCW 29.21.140.  As our supreme court indicated inAlderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963): 

            "On numerous occasions this court has indicated that a statute should be construed as a whole in order to ascertain legislative purpose, and thus avoid unlikely, strained or absurd consequences which could result from a literal reading. . . ."  (Supra, at 321) 

            The only alternative to the inclusion of this short term within the provisions of RCW 29.21.140 would be to treat it as the unexpired portion of a term, thus requiring a separate filing and identification on the ballot including the requirement of a separate filing fee.7/   But this newly created judicial office is constitutionally required to be included in the 1980 election process, and we believe that it would be fully consistent with the purposes of the RCW 29.21.140 proviso for the election officers to treat this initial (January 1-12) term as constituting a "short term" within the meaning of that statute. 

            Conclusion: 

            Therefore, in summary, in direct answer to your request it is our opinion that under our state constitution, the election (as opposed to the gubernatorial appointment) process is the one properly to be followed in filling the subject new superior court judgeships both for the brief period from January 1, 1981 through January 12, 1981 and for the regular four-year terms commencing thereafter.  If, for any reason, either no one is elected or, alternatively, if one who is elected refuses or is unable to serve, the governor will at that time have the power to fill thethen resulting vacancy by appointment. 

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

Very truly yours,
SLADE GORTON
Attorney General 

EDWARD B. MACKIE
Deputy Attorney General 

                                                         ***   FOOTNOTES   *** 

1/In so concluding we note that even more recently the 1980 legislature, by chapter 183, Laws of 1980, authorized five additional superior court judgeships for King County (subject to county council approval which, we understand, has now occurred)‑-also effective January 1, 1981.  By analogy, our conclusions expressed herein also apply to those positions.  We further note that in both cases the legislature clearly expressed an intent that the new positions would initially be filled by election rather than appointment, but the governor vetoed that portion of each measure.  We do not, however, base our opinion on that factor but, instead, on what we deem in any event to be an overriding state constitutional necessity. 

2/I.e., those in Spokane, Chelan, Douglas, Clark, Snohomish, Grant and Thurston Counties. 

3/         ". . .  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."  (Article IV, § 5) 

4/We recognize that the legislature has provided, by statute, with reference to newly created superior court judgeships, 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."  (RCW 2.08.069; emphasis supplied) 

            The critical language in this statute, however, is "Unless otherwise provided . . ."  In the absence of that provision, the statute would appear to call upon the governor to appoint the first incumbent of any newly created judgeships.  But that would, of course, be a substantial expansion of the appointment power conferred by Article IV, § 5 to fill vacancies.  Moreover, such expansion of the appointment power would also constitute a constriction of the constitutional authority to select judges by the election process.  In that context, the phrase "Unless otherwise provided . . ." therefore must be taken to have reference to the general election statutes which may, depending upon the timing of the creation of the new position, permit a filling of the position by the election process so that no vacancy will exist to give rise to the governor's constitutional appointment power. 

            It should also be noted that in Fain v. Chapman, supra, at page 52, footnote 1, the Court expressly declined to base its ruling on RCW 2.08.069.  Its reluctance to do so is understandable in light of State ex rel. Edelstein v. Foley, 6 Wn.2d 444, 107 P.2d 901 (1940), wherein it observed with reference to the time that an appointee might fill a judicial position: 

            ". . . the legislature is without power to abridge the term fixed by the constitution . . ." 

            With that declaration, the Court invalidated a provision of § 2, chapter 15, Laws of 1937 (the predecessor of RCW 2.08.120) insofar as that statute had provided: 

            ". . .  The judge so elected may qualify on or after, but not before, the second Monday in January next succeeding such general election, . . ." 

5/See, § 6, chapter 311, supra; in addition, one judgeship for Pierce County became effective on January 1, 1978.

6/Or, in the case of chapter 183, Laws of 1980, supra, on June 12, 1980. 

7/The filing fee will be $447 and the gross salary for the 12-day term would only be $1,441.

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