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AGO 1978 No. 24 - August 09, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

ELECTIONS ‑- JUDGES ‑- NOMINATION AND PROCEDURES FOR DISTRICT COURT JUDGES

(1) If only one candidate files for a given district court position, a primary election will nevertheless be required to be held in accordance with the general provisions of chapter 29.21 RCW because neither RCW 29.21.015 nor Article IV, § 29 (Amendment 41) of the state constitution are applicable.

(2) If there is a contested primary election for the position of district court judge, the two candidates receiving the greatest number of votes are both to have their names placed on the general election ballot in accordance with RCW 29.21.150 even though one of those candidates receives a majority of the votes cast for the position at the primary.     

(3) There is no statutory provision applicable to district court judges which requires that a candidate receive a given percentage of the total votes cast at a nominating primary in order to have his name appear on the general election ballot.

(4) Because of the inapplicability of RCW 29.21.010 to the election of district court judges, the names of candidates for that office need not be listed alphabetically on the primary ballot.

(5) For the same reason, there is no statutory requirement (insofar as the election of district court judges is concerned) that the various candidates' names appear on the general election ballot in sequence relating to the number of votes each candidate received in the primary election.

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                                                                  August 9, 1978

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County
Court House
Everett, Washington 98201

                                                                                                                 Cite as:  AGO 1978 No. 24

Dear Sir:

            By recent letter you have requested our opinion on several questions pertaining to the election of district court judges.  Specifically, you have asked:

             [[Orig. Op. Page 2]]

            (1) "If only one district court judicial candidate files for a position, will a primary election still be held or do to the provisions of RCW 29.21.015 and amendment 41 to the Washington State Constitution apply?"

            (2) "If there is a contested primary election for a position as district court judge, do the two candidates receiving the greatest number of votes both have their names placed on the general election ballot or; if one of the candidates receives a majority of the votes cast for the position, does only the name of the person receiving the majority in the primary election go on the general election ballot?"

            (3) "Must a candidate for district court judge receive a minimum of 5% of the total votes cast in the primary election to have his/her name appear on the general election ballot as provided in RCW 29.21.010 or is the requirement 1% of the total votes cast to appear on the general election ballot as provided in RCW 29.18.110?"

            (4) "Shall the names of candidates for district court judge appear on the primary ballot alphabetically and not be rotated as provided in RCW 29.21.010 or shall the candidates names appear on the ballot in order of filing and be rotated on the ballot as provided in RCW 29.30.040?"

            (5) "If two candidates are certified to run for the same position as district court judge on the general election ballot do their names appear on the general election ballot in sequence relating to the number of votes each candidate received in the primary election so that the candidate receiving the most votes in the primary election would have his/her name appear first on the general election ballot, as is provided in RCW 29.21.010?"

            We answer your questions in the manner set forth in our analysis.

             [[Orig. Op. Page 3]]

                                                                     ANALYSIS

            Question (1):

            RCW 29.21.015, to which your first question refers, reads, in material part, as follows:

            "No primary election 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 the position to be filled: . . ."

            In AGLO 1976 No. 51 [[to Kent Pullen, State Senator, on August 23, 1976, an Informal Opinion, AIR-76551]](copy enclosed), however, we concluded that the provisions of this statute arenot applicable to the election of superior court and appellate court judges.  Since then, based upon the reasoning of that same opinion, we have advised the secretary of state that the provisions of RCW 29.21.010 and 29.21.015 are, likewise, inapplicable to the election of district court judges.  Simply stated, just as we would not regard a judicial district served by a superior court or appellate court judge to be a "district" within the meaning of those statutes, we would not regard a district served by a justice of the peace or district court judge to be such a district either.

            Furthermore, based upon the express language thereof, it would also be our considered opinion that the provisions of Article IV, § 29 (Amendment 41) of the state constitution are inapplicable to the election of district court judges.  This section of the constitution reads as follows:

            "Notwithstanding any provision of this Constitution to the contrary, if, after the last day as provided by law for the withdrawal of declarations of candidacy has expired, only one candidate has filed for any single position ofsuperior court judge in any county containing a population of one hundred thousand or more, no primary or election shall be held as to such position, and a certificate of election shall be issued to such candidate.  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: . . ."  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            In so concluding we have not overlooked so much of RCW 3.34.050 (cited in your letter) as provides that:

            ". . .  Justices of the peace shall be elected . . . in the same manner as judges of courts of records are elected. . . ."

            Since, however, Article IV, § 29 (Amendment 41) is a special provision dealing with only one particular class of "courts of record"‑-i.e., superior courts‑-and not with all three classes of such courts now existing in this state, it follows, in our judgment, that this provision of the state constitution is not effectively "picked up," insofar as district court judges are concerned, by the above‑quoted language of RCW 3.34.050.

            Given the above two conclusions we would directly answer your first question as follows:

            If only one district court candidate files for a given position, a primary election will nevertheless be required to be held in accordance with the general provisions of chapter 29.21 RCW because neither RCW 29.21.015 nor Article IV, § 29 (Amendment 41), supra, both being inapplicable, provide otherwise.

            Question (2):

            Your second question, repeated for ease of reference, asks:

            "If there is a contested primary election for a position as district court judge, do the two candidates receiving the greatest number of votes both have their names placed on the general election ballot or; if one of the candidates receives a majority of the votes cast for the position, does only the name of the person receiving the majority in the primary election go on the general election ballot?"

            Prior to the enactment of chapter 120, Laws of 1975-76, 2nd Ex. Sess., this question would clearly have been answerable in accordance with the second of the two alternatives stated therein; i.e., only the name of the person receiving the majority in the primary election would go on the general  [[Orig. Op. Page 5]] election ballot.  Accord, the express language to that effect in both the second paragraph of RCW 3.34.050 and the proviso to RCW 29.21.150 as they then existed.  By § 5 of that 1976 amendatory act, however, the proviso was amended so as to remove justices of the peace (i.e., district court judges)1/ from its scope and, correspondingly, by § 8 of the act the entire second paragraph of RCW 3.34.050 was deleted.  In so acting the legislature must be presumed to have intended to change the law.  Allen v. Employment Sec. Dep't, 83 Wn.2d 145, 516 P.2d 1032 (1973).

            Therefore, in response to your second question we must now conclude that (in the words of the question) where there is a contested primary election for the position of district court judge, the two candidates receiving the greatest number of votes are both to have their names placed on the general election ballot even though one of those candidates receives a majority of the votes cast for the position.  Accord, the express language of the opening sentence of RCW 29.21.150.2/

             We turn, next, to your third, fourth and fifth question. Insofar as is material thereto, RCW 29.21.010 reads as follows:

            ". . .

            "All names of candidates to be voted upon at city, town, and such district primary elections shall be printed upon the official primary ballot alphabetically in groups under the designation of the respective titles of the offices for which they are candidates. The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes for each position, shall appear in that order on the city, town, or district general election ballot concerned under the designation for each respective office.  In the event there are two or more offices to be filled for the same position, then names of candidates receiving the highest number of votes equal in number to twice the offices to be filled shall  [[Orig. Op. Page 6]] appear on the city, town, or district general election ballot so that the voter shall have a choice of two candidates for each position:  PROVIDED, That no name of any candidate shall appear on the city, town, or district general election ballot unless said candidate shall receive at least five percent of the total votes cast for that office.  The sequence of names of candidates printed on the city, town, or district general election ballot shall be in relation to the number of votes each candidate received at the primary.  Names of candidates printed upon the city, town, or district primary and general election ballot need not be rotated.

            ". . ."

            Question (3):

            Because this statute is inapplicable to the election of district court judges, however, the requirement thereof that a candidate receive at least 5% of the total votes cast for a given position in order to have his or her name appear on the general election ballot is likewise inapplicable.  And by the same token, the comparable "1%" requirement of RCW 29.18.1103/ is inapplicable because that statute only applies to candidates for partisan office and the position of district court judge is a nonpartisan office.

            Question (4):

            Likewise, because of the inapplicability of RCW 29.21.010, supra, the names of candidates for the office of district court judge need not be listed alphabetically on the primary ballot.

             [[Orig. Op. Page 7]]

            Question (5):

            Again, in view of the inapplicability of RCW 29.21.010, there is no statutory requirement (insofar as the election of district court judges is concerned) that the various candidates' names appear on the general election ballot in sequence relating to the number of votes each candidate received in the primary election.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 3.30.030.

2/"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: . . ."  (RCW 29.21.150)

3/As amended by § 11, chapter 329, Laws of 1977, 1st Ex. Sess., RCW 29.18.110 provides that:

            "No name of a candidate for a partisan office shall appear on the general election ballot unless he receives a number of votes equal to at least one percent of the total number cast for all candidates for the position sought: . . ."  (Emphasis supplied)

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