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AGO 1950 No. 335 - September 25, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

VACANCY ‑- SUPERIOR COURT JUDGE ‑- APPOINTMENT BY GOVERNOR

Appointment by Governor prior to date of calling or holding a special election for filling in office of Superior Court Judge is not a condition precedent to the calling and holding of such election.

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

                                                              September 25, 1950

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 335

Dear Sir:

            By letter dated September 19, 1950, you have requested our opinion upon the following question:

            Where a superior court judge was elected in 1948 to a four year term and said judge died on September 13, 1950, the day following the September 1950 state primary, and assuming that the Governor does not attempt to appoint a person to fill said vacancy until after the date of the approaching state general election "‑- is this position subject to said election?  In other words‑-must an appointment be made by the Governor as a necessary procedural step before said office is subject to a special election to fill an unexpired term?"

            The conclusions reached may be summarized as follows:

            Appointment by the Governor prior to the date of calling or holding a special election for the filling of said vacancy of a person to hold this office is not a condition precedent to the calling and holding of such an election.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            You have called our attention to the death of the Honorable John A. Frater, Judge of the Superior Court for King County, on September 13, 1950, the day following the September 12, 1950, state primary.  You have noted that Judge Frater was elected at the 1948 state general election to serve a four year term and that his death gives rise to a vacancy in office.  You have also called our attention to section 5, Article IV of the State Constitution which provides in part as follows:

            "* * * 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."

            You have noted further that a state general election will be held on November 7, 1950, and have asked in substance whether a special election may be held at the time of said general election for the filling of this vacancy, irrespective of whether or not between now and that date the Governor should appoint a person to hold the office.

            In an opinion dated October 4, 1946, addressed to your office, we considered the factual situation where an incumbent judge died subsequent to the July 9, 1946, primary election and which vacancy was filled by a gubernatorial appointment to the bench.  We there ruled, (1) that such appointee was subject to special election to be held in conjunction with November 5th state general election; (2) that no candidate's name should appear on the ballot, but that the vote must be by write‑in or sticker; (3) that the notice to be given was that required by law for the holding of special elections and that the successful candidate should not be required to pay a filing fee.  We adhere to the conclusions therein expressed and at this time consider whether the same result should follow in the event that the Governor should not, in the language of section 5, Article IV of the State Constitution.

             [[Orig. Op. Page 3]]

            "* * * 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.  * * *"

            Article IV, section 5 of our State Constitution commences with the following language:

            "There shall be in each of the organized counties of this state a superior court, for which at least one judge shall be elected by the qualified electors of the county at the general state election * * *."

            The framers of our Constitution thus clearly reserved to the people the right to elect superior court judges, and they further, in the same section, provided for the exact year of the first election, and the term of office, and in that manner fixed the years in which regular elections for superior court judges shall be held.

            Those who drew our Constitution likewise could foresee that extraordinary circumstances might produce a vacancy in this office, and so further provided that at the general election next succeeding the vacancy the people might elect a judge to hold office for the remainder of the unexpired term, thus, even in the face of fortuitous circumstances, reserving to the electorate the right to elect its judicial officers.  Further foreseeing that there was likely to occur a lapse of time between the happening of the vacancy and the time for holding the next succeeding general election, the Governor was authorized to appoint a person to hold the office until the election and qualification of a judge to fill the vacancy.  It is our opinion that the power of appointment goes no further than that.  The  [[Orig. Op. Page 4]] right to elect a superior court judge is absolutely reserved to the people, even in the extraordinary circumstances where a vacancy exists, and action or forbearance by the Governor in appointing or abstaining from appointing a judge in the interim between the occurrence of the vacancy and the holding of a special election for that purpose can, under the Constitutional provision above referred to, have no bearing upon the electorate's right to elect a judge to fill the vacancy.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General

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