Alabama Advisory Opinions June 18, 2004: AGO 2004-158 (June 18, 2004)

AGO 2004-158.

Dear Governor Riley:

This opinion of the Attorney General is issued in response to your request.

(1) If the Governor makes an appointment to fill a vacancy on the Circuit Court bench in the Thirteenth Judicial Circuit (Mobile County), how long will that appointee's term last, and when will that appointee be required to run for reelection, if he or she so chooses?

(2) What impact, if any, do the facts that the term of the predecessor judge's (now deceased) six-year elected term expires in January 2005, that the predecessor judge was not a candidate for reelection because he was age-disqualified to seek reelection, and that two candidates, one from each of the major political parties, have qualified to run for said judicial position, have in the November 2004 general election?

The procedure for the filling of vacancies in offices of either circuit or district judge in Mobile County is governed by Amendment 408 of the Alabama Constitution 1901. The amendment addresses, inter alia , the duration of the term of one appointed to fill such vacancy. "The appointee shall hold such office until the next general election for any state officer held at least six months after the vacancy occurs and until his successor is elected and qualified. . . ."

Ala. Const. amend. 408. The vacancy occurred on May 28, 2004, upon the death of Circuit Judge William H. McDermott, who had not qualified to run for reelection because of his age. The next general election for any state office is scheduled to be held on November 2, 2004, which is less than six months from the time of the vacancy. The Alabama Supreme Court, however, has interpreted similar amendments applying to other counties as not extending the appointee's tenure beyond that of his predecessor's term of office.

The Supreme Court interpreted Section 6.14 of Amendment 328 of the Alabama Constitution in the case of Hooper v. Siegelman, 386 So. 2d 207 (Ala. 1980). The facts of that case surround a series of judicial appointments after a district court judge resigned shortly after his term began. His immediate successor qualified to run for a full six-year term but was then appointed to the circuit bench before the general election for which he had qualified. That judge's successor was named both as the district judge and as the nominee for that position in the general election, and he was elected as district court judge. In determining the term of an appointee to a vacancy created by the resignation of another appointee, the Court held that, if the second appointee had not run for office in the general election, his appointed term would have ended the following January when the new term of office began as with other state offices. Referring, with approval, to McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349 (1917), the Court agreed that the inevitable conclusion is that no appointee can serve beyond the term of his predecessor.

The Supreme Court further discussed this same issue in Thomason v. Florence, 388 So. 2d 994 (Ala. 1980). Although the facts of that case concerned a tax assessor, not a judge, the legal analysis is applicable to the present fact scenario. In Thomason, the filling of the vacancy was governed by section 1 of Act 429 of the Acts of Alabama and Appendix Section 1006, Volume 214 of the Code of Alabama 1958. That act dealt with vacancies, other than judicial vacancies, of any elected state or county official in any county of 500,000 or more and provided an election to be held to elect a successor to fill the unexpired term created by the vacancy. The appointee was subject to the identical general election provisions as in Amendment 408. In this case, the Supreme Court reiterated its position in Hooper v. Siegelman : "we held that no appointee to a circuit judgeship can serve beyond the term of his predecessor in office, even if his predecessor also is an appointee." Thomason at 996 . The Court elaborated by stating the following:

Of course, in no event may an appointed official hold the office beyond the term of the originally elected official. Thus, if an official is appointed to fill a vacancy less than six months before the end of the full elected term, then he must stand for office at the general election which marks the end of that elective term, whether or not he has been in office six months. The term of an appointee is limited to the remaining unexpired term of the vacating official or in a period ending with the next general election held at least six months after the vacancy occurred, whichever is earlier. Id.

The appointee to fill the vacancy on the Circuit Court bench in the Thirteenth Judicial Circuit will only serve until January 2005 when the term of office of the predecessor judge will expire, regardless of the fact that the appointee will not have served at least six months before the general election. The appointee will not be subject to election to that position unless he or she has qualified to run in the general election in November 2004. Those candidates selected by the major political parties in the respective primaries will be the candidates for the vacated position in the November 2004 general election, and the winner will begin a new six-year term in January 2005.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

TROY KING

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

TK/LT

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