OFFICES AND OFFICERS ‑- COUNTIES AND TOWNS ‑- MUNICIPAL JUDGES IN CITIES OVER 500,000 ‑- TERM OF OFFICE

OFFICES AND OFFICERS ‑- COUNTIES AND TOWNS ‑- MUNICIPAL JUDGES IN CITIES OVER 500,000 ‑- TERM OF OFFICE.

The four year term of office of a municipal court judge commences upon the day of certification of the election by the proper canvassing authority.

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                                                               November 17, 1958

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                            Cite as:  AGO 57-58 No. 227

Attention:  !ttKenneth N. Gilbert,Superintendent of Elections

Dear Sir:

            You have requested an opinion from this office concerning a question which we paraphrase as follows:

            When does the term of a newly elected municipal court judge commence?

            The term of a newly elected municipal court judge commences on the date of certification of his election to the office.

                                                                     ANALYSIS

            The statutory authority for the creation of municipal courts in incorporated cities of over 500,000 population is found in chapter 290, Laws of 1955 (chapter 35.20 RCW).  RCW 35.20.150 contains the following provision relating to the election of municipal judges:

            "The municipal judges shall be elected on the first Tuesday after the first Monday in November, 1958 and on the first Tuesday after the first Monday of November every fourth year thereafter by the electorate of the city in which the court is located. . . . They  [[Orig. Op. Page 2]] shall hold office for a term of four years and until their successors are elected and qualified. . . ."  (Emphasis supplied.)

            There is no provision in the act designating a specific date for the commencement of the terms of municipal judges.  However, RCW 35.20.240 contains the following language relating to the first judges to hold such office:

            "Upon the effective date of this chapter, any justice of the peace who was the duly appointed and acting police justice of the city shall become a judge of the municipal court upon his filing his oath of office and bond as required by this chapter, and shall serve as a judge of said municipal court until the regularly elected judges of the court shall qualify following their election in 1958. . . . Should any justice of the peace acting as police judge fail to qualify as a judge of the municipal court, the mayor of such city shall designate one of the other justices of the peace of that city to act as municipal judge until the next general election in November, 1958, and the qualifying of the regularly elected judge. . . ."  (Emphasis supplied.)

            In the absence of any specific statutory date for the commencement of the terms in question, it appears that there are three possibilities with regard to the date of commencement of such terms: (1) The date of election; (2) the date the elected judge qualifies for the office and files his oath; and (3) the date of certification of the results of the election.

            Although there are cases which hold that the term of office commences on the day of election, we do not believe as a practical matter that this is a satisfactory solution, since legally we cannot presume to know the outcome of an election until the time of certification of the results.

            Other courts have held that the date of commencement of a term not otherwise designated is the date upon which the newly elected officer qualifies, and if subscribing to an oath is a condition to qualification, then the officer cannot assume his duties until he has taken the oath.  As one court pointed out in State ex rel. Brown v. Constable, 7 Ohio 7 (1835), such a conclusion would lead to an absurd result, in that the officer elected would have it in his power to fix the term of service for himself and his successor by merely delaying his assumption of duties to any time he thought proper to qualify.  That result would be achieved in the present instance in view of the specific language of RCW 35.20.150,supra, that the judges are to hold office for a term of four years, and until their successors are elected and qualified, since a prerequisite to qualifying is the filing of an oath of office with the county auditor pursuant to RCW 35.20.180.

             [[Orig. Op. Page 3]]

            The general rule with regard to a situation such as the present one is that unless some other time is fixed for the beginning of the elective term of office, the presumption is that the official term dates from the legal ascertainment of the result of the election and the officer in question may assume the duties of the office as soon thereafter as he can qualify and receive his commission.

            Our supreme court has on several occasions dealt with a similar situation involving the interpretation of Article IV, § 5, of the constitution, which reads 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, . . ."

            Since judges regularly elected at the November general election cannot qualify until the second Monday in January, our court has ruled that there is a short term between the November election, and the qualification of the new judge‑elect in January.

            Although no specific date is provided as to when the "short term" commences our court has ruled that a person elected to the "short term" is entitled to qualify and take office as soon as the results of the election are declared.  State ex rel. O. V. Linn v. Millett, 20 Wash. 221 (1898); State ex rel. Sears v. Gilliam, 93 Wash. 248, 160 Pac. 757 (1916); State ex rel. Edelstein v. Foley, 6 Wn. (2d) 444, 107 P. (2d) 901 (1940).

            It is our conclusion, therefore, that the third possibility mentioned above is the one which is controlling in the present instance.  Thus, the four year term of office of a municipal court judge commences upon the date of certification of the election by the proper canvassing authority, which is the first day he is able to qualify, even though he does not in fact qualify by filing his oath of office until some later date.

            We trust that this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD F. COLLIER
Assistant Attorney General