Letter Opinion 1970 No. 127

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                                                                 October 5, 1970
 
 
 
Honorable Henry R. Dunn
Prosecuting Attorney
Cowlitz County
318 Court House
Kelso, Washington 98626
                                                                                                             Cite as:  AGLO 1970 No. 127
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on the following question relating to the election of superior court judges:
 
            "Where there are two candidates in the primary election for the position of Superior Court Judge does the name of the person receiving the highest vote appear on the general election ballot under the designation for that position?"
 
            We answer this question in the negative subject to the single qualification set forth below.
 
                                                                     ANALYSIS
 
            Your question involves an application of the provisions of Article IV, § 29 (Amendment 41) to our state Constitution.  This amendment, which was adopted by the voters at the November 1966 general election, provides in material part as follows:
 
            ". . .  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.  . . ."
 
             [[Orig. Op. Page 2]]
            This portion of the Amendment, which constitutes the second sentence thereof, was previously construed by this office in an opinion to the prosecuting attorney of Stevens county dated September 25, 1968, copy enclosed.  In that opinion we said:
 
            "The second sentence changes the general election date for superior court judgeships in all counties from the usual November general election date, (the first Tuesday following the first Monday in November) to the September primary election date, provided that all of the following conditions are satisfied:
 
            "(a) There is a contested primary;
 
            "(b) The result of the contested primary is that only one candidate is entitled to have his name printed on the ballot.
 
            "(c) No petition is filed within ten days after the primary indicating that a write‑in campaign will be conducted.  . . ."
 
            In so far as the second of these conditions is concerned, our footnote to the sentence describing this condition read as follows:
 
            "3/        This language is an obvious reference to RCW 29.21.150 which provides with respect to judges of the supreme court, superior court judges and justices of the peace that, if a candidate for one of these positions obtains a majority of all the votes cast at the primary, only his name shall be entitled to appear on the general election ballot."
 
            In other words, RCW 29.21.150, which was last amended by § 1, chapter 10, Laws of 1970, constitutes the basis for and gives meaning to the "is entitled" phraseology of the constitutional amendment ‑ rather than, by any reasoning process, taking precedence over it.
 
            Therefore, based upon this constitutional amendment, it follows that in the situation described in your letter, the single candidate receiving a majority of all the votes cast at the contested primary in question should be regarded as having been elected at this primary unless a petition was filed with the county auditor within ten days after the  [[Orig. Op. Page 3]] primary indicating that a write‑in campaign would be conducted (said petition being signed by one hundred registered voters qualified to vote with respect to the office).1/
 
             We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 

 
                                                         ***   FOOTNOTES   ***
 
1/We note that your letter is silent on the matter of whether such a petition was filed during the 10-day period following the primary, which, of course, was held on Tuesday, September 15, 1970.