Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 76 - Jul 20 1973
Attorney General Slade Gorton

Where persons are currently serving by appointment as district justice court judges under RCW 3.34.100, an election will not be required by chapter 4, Laws of 1973, to be held on November 6, 1973, for the remainder of the unexpired term they are serving.
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                                                                    July 20, 1973
Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 76
Attention:  !ttMr. Kenneth N. Gilbert
            Deputy Secretary of State
Dear Sir:
            By letter previously acknowledged, you have requested our opinion on a question which we paraphrase as follows:
            Where persons are currently serving by appointment as district justice court judges under RCW 3.34.100, will an election for the remainder of the unexpired term they are serving be required by chapter 4, Laws of 1973 to be held on November 6, 1973?
            We answer this question in the negative for the reasons set forth in our analysis.
            Article IV, § 10 (Amendment 28) of the state Constitution provides that:
            "The legislature shall determine the number of justices of the peace to be elected and shall prescribe by law the powers, duties and jurisdiction of justices of the peace: . . ."
            Pursuant to this section the legislature, in 1961, enacted a comprehensive law establishing a system of district court justices in all class AA and A counties, with optional application to all other counties at the discretion of their respective boards of county commissioners.  See, chapter 299, Laws of 1961, which, as subsequently from time to time amended,  [[Orig. Op. Page 2]] is now codified in chapters 3.30 through 3.74 RCW.1/ The constitutionality of this enactment was tested and sustained in Long v. Odell, 60 Wn.2d 151, 372 P.2d 548 (1962).
            Under the act each county to which it applies is allocated a certain number of justices of the peace (RCW 3.34.010) and is authorized to distribute them, geographically, to justice court districts which are established within the county in accordance with RCW 3.38.010-3.38.050.  RCW 3.34.050 then provides that:
            "At the general election in November, 1962 and quadrennially thereafter, there shall be elected by the voters of each justice court district the number of justices of the peace authorized for such district by the justice court districting plan.  . . ."
            From this it will readily be seen that the next regular election of district court judges for full terms will not occur until November of 1974.  Under another statute, RCW 3.34.100, it is further provided, however, that:
            "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)
            By its enactment of chapter 4, Laws of 1973, the legislature amended the state election code to provide for the holding of state general elections in November of each odd-numbered year (in addition to the previously authorized system  [[Orig. Op. Page 3]] of biennial state general elections which have been held since statehood in November of each even-numbered year).2/   Your question, in essence, is whether the forthcoming November 6, 1973, general election to be held under this act will constitute the "next general election" as that term is used in RCW 3.34.100, last quoted.  We answer in the negative.
            RCW 29.13.010, as last amended by § 1, chapter 4, supra, now provides in material part as follows:
            "All state, county, city, town, and district general elections for the election of federal, state, legislative, judicial, county, city, town, district, and precinct officers, and for the submission to the voters of the state of any measure for their adoption and approval or rejection, shall be held on the first Tuesday after the first Monday of November, in the year in which they may be called.  A state‑wide [[statewide]]general election shall be held on the first Tuesday after the first Monday of November of each year:  PROVIDED, That the state‑wide [[statewide]]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 state and county officers for the remainder of any unexpired terms as provided for in Article II, section 15, Article III, section 10, and Article IV, sections 3 and 5 of the state Constitution; (3) the election of county officers in any county governed by a charter containing provisions calling for general county elections at this time; and (4) 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 electorate: . . ."
            By virtue of the proviso to this amendment the odd-year state‑wide [[statewide]]general elections to be held under the act are expressly limited to those offices and measures enumerated  [[Orig. Op. Page 4]] therein, and district court judges are simply not among them.  They are not city, town or district offices covered by RCW 29.13.020 for, as above noted, these judges are elected, instead, under the provisions of RCW 3.34.050, supra; nor, by the same token are they county officers who are elected in accordance with a county charter.  And, finally, they do not now hold offices covered by any of the several constitutional provisions listed in subpart (2) of this proviso.  Article II, § 15, pertains to legislators and partisan county offices,3/ whereas justice court judges, although county officers, are elected and serve on a nonpartisan basis.4/   Article III, § 10 pertains only to the office of governor.  And Article IV, §§ 3 and 5 relate to supreme and superior court judges but not to those at the district court level.
            In providing for the application of the "annual elections" concept of chapter 4, supra, to those offices covered by these four constitutional provisions ‑ each of which requires any vacancies therein to be filled "at the next general election" ‑ it seems apparent that the legislature was simply acting in response to a constitutional necessity.  Even if those offices covered by such constitutional provisions were not included in the act, it could well have been anticipated that a court would have held it to have been constitutionally required for the odd-year general election there provided for to be treated as the next general election whenever, in point of time, a vacancy in those offices occurred between the Tuesday after the second Monday in November of an even-numbered year and the same Tuesday in the following odd-numbered year.  However, in the case of offices covered, instead, by a mere statute such as RCW 3.34.100, and not by a constitutional requirement, no such constitutional necessity existed so as to dictate their inclusion in the elections act.
            In making this point we take special note of Amendment 52 to the state Constitution which was approved by the voters in 1968.  Prior to its adoption the offices of all district justice court judges were covered by a constitutional provision requiring vacancies to be filled at "the next general election," as well as by the statutory provisions of RCW 3.34.100, supra.  See, Article XI, § 6, which then read as follows:
            "The board of county commissioners in each county shall fill all vacancies occurring in any county, township, precinct or road district office of such county by appointment, and officers thus appointed shall hold office  [[Orig. Op. Page 5]] till the next general election, and until their successors are elected and qualified."
            Accord, State ex rel. Moody v. Cronin, 5 Wash. 398, 31 Pac. 864 (1892), and State ex rel. Caplan v. Bell, 185 Wash. 674, 56 P.2d 683 (1936).  However, by virtue of Amendment 52 all county officers were removed from this constitutional provision ‑ with those holding partisan county offices being thereafter covered (along with legislators) only by Article II, § 15 and those holding nonpartisan county offices no longer being covered by any constitutional provision.
            Had this amendment not been adopted our answer to your present question might well be different because of constitutional necessity, even though Article XI, § 6 is not specifically listed in subpart (2) of the above‑quoted amendatory proviso to RCW 29.13.010, supra.  Accord, our pre‑Amendment 52 opinion of September 19, 1968, to the King County prosecuting attorney, copy enclosed.  But because the requirement that vacancies in district court judgeships be filled at the next general election is now merely statutory and not constitutional, we are presently at liberty to resolve this matter solely on the basis of principles of statutory construction under which we are only called upon to determine legislative intent as manifested by the language appearing in (a) RCW 3.34.100, supra, and (b) the limiting proviso in RCW 29.13.010, supra.
            Because the first of these two statutes is not among the laws (statutes or constitutional provisions) enumerated in the second, we may conclude, on this basis, that the legislature (which must be presumed to have been aware of RCW 3.34.100 when it enacted § 1, chapter 4, supra)5/ simply did not intend that an odd-year state‑wide [[statewide]]general election held under that act should at any point in time be taken to constitute "the next general election" for the purposes of filling vacancies in district justice court judgeships.  It is for this reason that we answer your question in the negative.  No elections for the unexpired terms of persons presently serving by appointment as district justice court judges will be required to be held on November 6, 1973,6/ by this 1973 amendatory act.
             [[Orig. Op. Page 6]]
            We trust the foregoing will be of assistance to you.
Very truly yours,
Attorney General

Deputy Attorney General
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/In those counties to which this act does not presently apply, justices of the peace are elected under various preexisting statutes also enacted in accordance with Article IV, § 10 (Amendment 28), supra.
2/See, AGO 1973 No. 13 [[to A. Ludlow Kramer, Secretary of State on May 30, 1973]], written to you earlier this year.
3/See, AGLO 1973 No. 69 [[to Edward G. Ellis, State Representative on June 25, 1973 an Informal Opinion AIR-73569]], copy enclosed.
4/See, RCW 29.21.070.
5/State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937), and cases cited therein.
6/However, of course, such elections will be required to be conducted a year later, on November 5, 1974, if any persons should then file for the so-called "short term" then remaining.  See, State ex rel. Sears v. Gilliam, 93 Wash. 248, 160 Pac. 757 (1916).