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

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

(1) An election will be required to be conducted on November 8, 1977, in connection with the several new superior court judgeships which, under Chapter 311, supra, will become effective on November 1, 1977.     

(2) It is proper for filings to be accepted by the Secretary of State or the appropriate county auditors for those new superior court judgeships in accordance with RCW 29.18.030 during the week of July 25-29, 1977.  

(3) Except as provided in Article IV, § 29 (Amendment 41) of the State Constitution and RCW 29.13.075, a nominating primary is to be conducted for the new judgeships under RCW 21.21.020, et seq.

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                                                                    July 27, 1977

Honorable John A. Bagnariol
Speaker of the House
2008 S.E. 17th Court
Renton, Washington 98055

Honorable Gordon L. Walgren
Senate Majority Leader
145 Fourth Street Building
Bremerton, Washington 98310                                                                                                               Cite as:  AGLO 1977 No. 34

Gentlemen:

            By letter dated July 22, 1977, you have directed our attention to Chapter 311, Laws of 1977, 1st Ex. Sess., establishing five new superior court judgeships in King County and one each in Spokane, Pierce and Kitsap Counties, and in the Benton-Franklin and San Juan-Island County judicial districts.  You have further pointed out that except for the new Pierce County judgeship (which will not be effective until January 1, 1978 (all of the  [[Orig. Op. Page 2]] new positions will come into existence on the effective date of the act ‑ which is November 1, 1977.  In view of that fact you have requested our opinion on the following questions:

            (1) Will an election be required to be conducted on November 8, 1977, in connection with the several new superior court judgeships which, under Chapter 311,supra, will become effective on November 1, 1977?

            (2) If the foregoing question is answered in the affirmative, is it proper for a county auditor or the secretary of state to accept filings for those new superior court judgeships in accordance with RCW 29.18.030 during the week of July 25-29, 1977?

            (3) If questions (1) and (2) are answered in the affirmative, should a primary election also be conducted in accordance with RCW 29.21.020,et seq.?1/

                        We answer questions (1) and (2) in the affirmative for the reasons set forth in our analysis.  We then also answer question (3) in the affirmative as qualified therein.

                                                                     ANALYSIS

            In posing the foregoing questions you have also acknowledged the fact that this office has already gone on record, informally, with regard to the issues involved.  Specifically, in response to various inquiries received last week, we verbally advised the state supervisor of elections2/ and the prosecuting attorneys of King, Spokane and Kitsap Counties that in our  [[Orig. Op. Page 3]] opinion, under the factual circumstances presented, an election for those new judgeships coming into existence on November 1, 1977, will be required to be conducted on November 8, 1977, and that filings accordingly should be accepted during the five‑day filing period prescribed by RCW 29.18.030; i.e., the week of July 25-29, 1977.  Although you have now presented us with certain legal arguments in support of a contrary conclusion, we must respectfully advise you that our view of the matter remains unchanged ‑ for reasons which we will now outline in some detail.

            Question (1):

            With respect to the necessity for an election on November 8, 1977, the foundation for our opinion is Article IV, § 5 of the State Constitution which provides, in material part, that:

            ". . .  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."  (Emphasis supplied)

            See also, RCW 2.08.120, a statute which is identically worded.  Of course, the normal manner in which a vacancy occurs in an elective public office such as this is through the death or resignation of an encumbent.  But vacancies may also result from the establishment of new judgeships ‑ as in the instant case.  Accord,Godman et al. v. Kennedy et al., 18 Cal. 3d, 335, 556 P.2d 737 (1976), holding that constitutional requirements for filling vacancies are equally applicable to "new" vacancies resulting from the establishment of new positions and to "old" vacancies occurring by reason of a death, resignation or removal.  In recognition of that fact, the legislature has also enacted another statute, RCW 2.08.069, which provides as follows:

             [[Orig. Op. Page 4]]

            "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 atthe next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term."  (Emphasis supplied)3/

             Presumably, the 1977 legislature which enacted Chapter 311, supra, was fully aware of both the constitution and this last quoted statute for, as stated in such cases as Thurston County v. Gorton, 85 Wn.2d 133, 530 P.2d 309 (1975), at p. 138:

            ". . .  The legislature is presumed to enact laws with full knowledge of existing laws.  State v. Thornbury, 190 Wash. 549, 69 P.2d 815 (1937); State v. Roth, 78 Wn.2d 711, 479 P.2d 55 (1971);Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965)."

            Likewise, for the same reason, it also must be deemed to have been aware that the "next general election" occurring after November 1, 1977, will be conducted on November 8, 1977, in accordance with RCW 29.13.010, and that this election expressly qualifies as one at which persons may be elected for the remainder of any unexpired terms in the office of superior court judge.  See, subsection (3) of RCW 29.13.010 which includes, among the matters which may be considered at the "annual" general election held in odd-numbered years,

            ". . . the election of state and county officers for the remainder of any unexpired terms of officers created by or 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. . ."  (Emphasis supplied)

             [[Orig. Op. Page 5]]

            Nevertheless, the legislature intentionally caused all but one of the ten new superior court judgeships created by Chapter 311, supra, to become effective on November 1, 1977, a full seven days prior to the election, while at the same time delaying the effective date of the remaining new judgeship in Pierce County until after the election,i.e., on January 1, 1978.

            As we understand it, your basic argument in opposition to our opinion that an election is therefore required to be conducted on November 8, 1977, for those new judgeships coming into existence on November 1, stems from the provisions of another statute, RCW 29.21.380, which, as recently amended by subsection 13, Chapter 120, Laws of 1976, 2nd Ex. Sess., reads as follows:

            "A scheduled election shall be lapsed, the office deemed stricken from the ballot, no purported write‑in votes counted, and no candidate certified as election, when:

            "(1) In an election for judge of the supreme court or superintendent of public instruction, a void in candidacy occurs on or after the fourth Tuesday prior to a primary, public filings and the primary being an indispensable phase of the election process for such offices;

            "(2) Except as otherwise specified in RCW 29.21.370, as now or hereafter amended, a nominee for judge 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 on or after the fourth Tuesday prior to a primary;

            "(3) In other elections for nonpartisan office a void in candidacy occursor a vacancy occurs involving an unexpired term to be filled on or after the fourth Tuesday prior to an election."  (Emphasis supplied)

            In addition, you have directed our attention to two previous opinions of this office, AGO 1977 No. 15 [[to Jim Matson, State Senator, on July 11, 1977]]and AGLO 1975 No. 73 [[to Jim Matson, State Senator, on August 19, 1975, an Informal Opinion, AIR-75573]], and to the decisions of our state supreme court,State ex rel. Rummens v. Superior Court, 160 Wash. 520,  [[Orig. Op. Page 6]] 295 Pac. 730 (1931) and State ex rel. Ferguson v. Superior Court, 140 Wash. 636, 250 Pac. 66 (1926).

            In actuality, however, the conclusion reached in both attorney general's opinions and in the first of the two supreme court cases you have cited was that, under the circumstances presented, an election was also required to be held.  In AGO 1977 No. 15 we dealt with prospective vacancies inexisting partisan county offices or legislative positions and advised that if such vacancies should occur prior to November 8, 1977, elections would then be required to be conducted for the remainder of the unexpired terms involved in accordance with the provisions of Article II, § 15 (Amendment 52) of our state constitution ‑ which is identical to Article IV, § 5,supra, with regard to the procedure for filling vacancies.  And in AGLO 1975 No. 73,supra, we specifically ruled that an election was required to be held on November 4, 1975, in connection with a new superior court judgeship established by Chapter 49, Laws of 1975, Ex. Sess., which became effective on September 8, 1975.

            Likewise, inState ex rel. Rummens v. Superior Court, supra, it was held by the supreme court that an election was to be conducted in accordance with Article IV, § 5, supra, on November 4, 1930, in order to fill the unexpired term of a justice in the state supreme court who had died on September 13, 1930 ‑ even though both the statutory filing period and the primary election had already passed.  As stated by the court on p. 526:

            ". . .  A nomination is not necessary to the validity of an election, unless there is a constitutional or statutory provision so providing.  It follows that, where a vacancy occurs subsequent to the primary election, and there is a statutory call for a special election which shall be held at the next succeeding general election at which judges of the supreme court shall be elected, such special election will be held, even though there has been no prior nomination under the direct primary law,  [[Orig. Op. Page 7]] providing the vacancy occurs in time to give notice of such election.  In this case, the death of Judge French occurred fifty-two days prior to November 4, 1930.  Section 5157, Rem. Comp. Stat., provides that it shall be the duty of each county auditor to give at least thirty days notice of any general election, and at least 'fifteen days previous to any special election . . .'  By chapter 53, Laws of 1923, p. 172 (Rem. 1927 Sup., § 5148-3), it is provided that, in class A counties, the notice shall be for a period of not less than thirty days.  There was ample time, therefore, in all the counties of the state, to comply with the statutory provisions with reference to notice."

            On the other hand, in the other case which you have cited, State ex rel. Ferguson v. Superior Court,supra, it is quite true that the court did excuse the conduct of an election on November 2, 1926, to fill a vacancy on the King County superior court resulting from the death of an incumbent barely two weeks earlier ‑ on October 15, 1926.  In essence, the court there qualified the constitutional requirement by holding that where such anunanticipated vacancy occurs at a point in time too late to permit the requisite statutory notices of an election to be given, no immediate election for the remainder of the unexpired term is to be conducted and the appointee may serve until a successor is elected at the next ensuing general election.

            With that in mind let us now return to the provisions of RCW 29.21.380(3),supra, with emphasis upon the above underscored portion thereof.  Repeated for ease of reference that statute reads, in material part, as follows:

            "A scheduled election shall be lapsed, the office deemed stricken from the ballot, no purported write‑in votes counted, and no candidate certified as elected, when:

            ". . .

             [[Orig. Op. Page 8]]

            "(3) In other elections for nonpartisan office a void in candidacy occursor a vacancy occurs involving an unexpired term to be filled on or after the fourth Tuesday prior to an election."  (Emphasis supplied)

            The critical question presented is the applicability of RCW 29.21.380(3) to a "vacancy" coming into existence during the four-week period described thereinas a result of an earlier enacted law ‑ rather than one resulting from the unanticipated death, resignation, etc., of an incumbent; i.e., a "new" vacancy as opposed to an "old" vacancy as those descriptive terms were used by the California court in Godman et al. v. Kennedy et al.,supra.  On its face we can readily understand how some, upon a first reading of the statute, would deem it to be applicable in both situations.  The problem, however, is that unless limited by construction to those cases involving unanticipated vacancies occurring in pre‑existing offices the constitutionality of the law is, at least, in grave doubt.  Therefore, in accordance with a well established principal of statutory interpretation it must be so limited.  See,e.g., the oft cited case of Soundview Pulp Co. v. Taylor, 21 Wn.2d, 150 P.2d 839 (1944) wherein the applicable rule of construction was stated as follows:

            "There are statutes, however, in which their wording may be plain, but it may appear from such wording that a given statute may be applied in different ways, or some of the words may be susceptible of different meanings, and if applied, or the words are used in a certain way, the statute would be unconstitutional, or a grave doubt as to its validity would be raised.  In such cases the rule is that, where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted.  State ex rel. Campbell v. Case, 182 Wash. 334, 47 P. (2d) 24; State ex rel. Dept. of Finance, Budget and Business v. Thurston County, 199 Wash. 398, 92 P. (2d)234."

             [[Orig. Op. Page 9]]

            The key to our thinking with regard to the probable unconstitutionality of RCW 29.21.380(3),supra, if applied to "new" vacancies resulting from the earlier enactment of legislation creating new superior court judgeships, will be found in the two cases which you have also cited to us in your opinion request,State ex rel. Rummens v. Superior Court,supra, andState ex rel. Ferguson v. Superior Court,supra.  But before elaborating on that point we should draw one further distinction ‑ this time between the original version of RCW 29.21.380, supra, as enacted by § 4, Chapter 61, Laws of 1972, Ex. Sess., and the current text of the law.

            Originally, subsection (3) of this statute dealt only with a "void in candidacy" occurring during the last four weeks prior to an election ‑ a term defined by RCW 29.21.350 (codifying § 1 of Chapter 61, supra) as follows:

            "A void in candidacy for a nonpartisan office occurs when an election for such office, except for the short term, 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."

            Thus, at least insofar as the office of superior court judge was concerned, the original version of the statute was, in fact, expressly sanctioned by a provision of the state constitution.  We have reference to Article IV, § 29 (Amendment 41) which was adopted in 1966 and 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 of superior 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.   [[Orig. Op. Page 10]] 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:  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.  Provisions for the contingency of the death or disqualification of a sole candidate between the last date for withdrawal and the time when the election would be held but for the provisions of this section and such other provisions as may be deemed necessary to implement the provisions of this section, may be enacted by the legislature."  (Emphasis supplied)4/

             On the other hand, there clearly is no such express constitutional sanction for the additional portion of RCW 29.21.380(3) relating tovacancies in office occurring during the four weeks preceding an election ‑ which was added by the 1976 amendment contained in § 12, Chapter 120, Laws of 1976, 2nd Ex. Sess., supra ‑i.e., the feature of the statute with which we are here concerned.  And, as we have seen, the constitution, in Article IV, § 5, supra, continues to provide that when a vacancy occurs in the office of superior court judge there is to be a selection of a new judge by the voters ". . . at the next general election . . ." with the position to be filled by an appointee only during the interim.5/   Thus, the constitutionality of RCW 29.21.380(3) as amended, must certainly be viewed as being at least questionable if not in grave doubt.

             [[Orig. Op. Page 11]]

            This brings us, however, to the critical point.  Although the constitution does require an election to be held when a vacancy occurs early enough to permit the requisite legal notices to be published so as to adequately inform the voters of what is transpiring, State ex rel. Rummens, supra, we have also seen that the supreme court in the earlier,Ferguson, case held that an election is not required if the vacancy occurs at a point in time too late for such notices to be given.  Thus, to that limited extent there is, in the Ferguson ruling, a rationale to support the provisions or RCW 29.21.380(3),supra, even as amended.  But in order for that rationale to fit, it seems clear that the vacancy must be of the type which was there involved;i.e., an unanticipated vacancy resulting from a death or resignation occurring after the deadline for scheduling an election and publishing notice thereof.

            Conversely, where (as in the case with which we are here concerned) the vacancies in question are not the result of such unanticipated events but, instead, are "new" vacancies caused by an act of the legislature which was passed well in advance of the commencement of the election process, an entirely different situation is presented.  In the latter case, except for the remote possibility of a referendum or intervening legislative repeal of the act itself, the prospective existence of the vacancy is a certainty as of the date upon which the act is passed and signed by the governor ‑ an event which, in the case of Chapter 311, Laws of 1977, Ex. Sess.,supra, occurred on June 21, 1977.

            It is true, as you have pointed out, that in AGLO 1975 No. 73,supra, we did initially draw an analogy between "old" and "new" superior court vacancies insofar as the necessity for an election is concerned, saying, at p. 2 thereof:

            "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."

             [[Orig. Op. Page 12]]

            However, both in terms of the instant question and your second question, below, it is important to understand that the potential applicability of RCW 29.21.380(3),supra, was simply not presented in that case.  Even though a "new" vacancy was also there involved, it was scheduled to come into existence6/ on September 8, 1975, or well prior to the four-week period immediately preceding the November 4, 1975, general election.  Therefore, the one significant difference which we now perceive between the two types of vacancies (i.e., the ability to give adequate notice so as to cause the situation to come under the reasoning of the Rummens case rather than that of the Ferguson ruling,supra) was simply not important there.

            Conclusion:

            In conclusion it is thus our opinion, in direct answer to your first question, that notwithstanding the provisions of RCW 29.21.380(3), supra, an election will be required to be held on November 8, 1977, by the terms of Article IV, § 5 of the constitution, in connection with the several new superior court judgeships which, under Chapter 311,supra, will become effective on November 1, 1977.  In short, we reaffirm our previous informal advice with regard to that question for the above‑stated reasons ‑ answering the question in the affirmative.

            Question (2):

            In view of the foregoing answer to your first question an election has, in fact, now been scheduled by the Elections Division of the Secretary of State's Office ‑ based upon the informal opinion which was issued by this office a week ago.  Accordingly, in answer to your second question it is our opinion that it is entirely proper for the Secretary of State, along with the several county auditors involved,7/ to  [[Orig. Op. Page 13]] accept filings for the new judgeships involved during the five‑day statutory filing period (July 25-29, 1977) prescribed by RCW 29.18.030.  The alternative, given our answer to question (1), would be an election conducted solely on the basis of write‑in votes under the provisions of RCW 29.51.170,8/ and if any plausible legal basis for avoiding that procedure can be postulated it quite obviously should be.

            Referring, again, to AGLO 1975 No. 73, supra, we also acknowledge that a p. 5 of that opinion,9/ we said something which may now appear to be at odds with our present opinion.  Specifically, we there questioned the validity of filings made during the normal statutory filing period which, as here, took place before the actual occurrence of the vacancy ‑ and suggested that the problem should be rectified through a process of refiling in accordance with the provisions of RCW 29.21.37010/ , saying:

             [[Orig. Op. Page 14]]

            "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."

            It is once more important to note, however, the different context in which that opinion was written.  In the situation with which we were confronted in writing AGLO 1975 No. 73 there had been no scheduling of an election prior to the filing period by means of any announcement from the Secretary of State as has now been made in the instant case pursuant to our informal advice of last week.  Instead, all that had occurred was an isolated acceptance of filings by a single county auditor.  And secondly, in view of the different time factors there involved a practical alternative was still available to cure any problem with the filings which had occurred during the normal filing period; namely, refiling under the provisions of RCW 29.21.370,supra.  Here, on the other hand, the only alternative to an acceptance of filings before the vacancy actually comes into existence would be write‑in voting under RCW 29.51.170,supra.  Moreover, there is nothing at all unusual about an acceptance of filings for prospective vacancies in connection with ascheduled election.  In fact, it happens frequently in the case of elections to fill complete terms of office not actually commencing until several  [[Orig. Op. Page 15]] months after the filings are required to take place.

            Conclusion:

            Therefore, having answered your first question in the affirmative, we also answer your second question in the same manner.  Filings are to be accepted during the week of July 25-29, 1977 for the nine new superior court judgeships which, under Chapter 311, supra, are to become effective on November 1, 1977.

            Question (3):

            As noted at the outset, our response to the two questions expressly stated in your letter raises a third question which, although not similarly expressed, seems to us to be implicit therein.  Repeated for ease of reference our paraphrasing of that question is as follows:

           If questions (1) and (2) are answered in the affirmative, should a primary election also be conducted in accordance with RCW 29.21.020,et seq.?

            The basic reasons for this question are two fold.  First, there may be some who, upon reading the most recent of the two previous attorney general's opinions cited in your letter, will conclude that no primary is to be conducted because of RCW 29.18.010(1) which excludes races ". . . to fill unexpired terms occasioned by vacancies. . ." from the primary election law.  See AGO 1977 No. 15,supra, at p. 7.  Read in the context in which it appears, however, that exclusion (whatever else it may mean) only pertains to campaigns for partisan offices which, as earlier explained, was the sole subject of our previous opinion.  On the other hand it seems evident to us that primaries are clearly contemplated for non-partisan offices under Chapter 29.21 RCW regardless of whether or not the race is for an unexpired term.  See, RCW 29.21.070, 29.21.090, 29.21.150, 29.21.180, 29.21.360, 29.21.370, 29.21.380,supra, and RCW 29.13.075.

            Secondly, however, because of the last of those several statutes and the earlier quoted provisions of Article IV, § 29 (Amendment 41) of the constitution there are certain  [[Orig. Op. Page 16]] qualifications regarding the conduct of a primary which also should be explained and which thus also serve to justify our inclusion of this additional question in the present opinion.

            Once again the constitutional provision, which we previously cited with emphasis upon its final sentence in relation to the constitutional basis for RCW 29.21.380(3), earlier stipulates that:

            "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 of superior 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. . . ."