Alabama Advisory Opinions January 04, 2010: AGO 2010-29 (January 4, 2010)

AGO 2010-29.

Dear Judge King:

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

In the event that a vacancy occurs in the Office of Deputy Clerk of the Bessemer Division of the Tenth Judicial Circuit prior to the end of the current Deputy Clerk's term of office, but before the November 2, 2010, general election, will the person appointed to fill that vacancy serve until the expiration of the vacating Deputy Clerk's term of office in January 2013, or will such an appointee, to serve the remainder of that term, be required to stand for election in the November 2, 2010, general election?

The answer to this question requires consideration of several Alabama sta-tutes that create and provide for the division of the Tenth Judicial Circuit and for the office of Deputy Clerk.

First, Alabama law provides that the Tenth Judicial Circuit has two terri-torial divisions, the Birmingham Division and the Bessemer Division, each with a separate circuit clerk's office operating independently from the other. The Bessemer Division was first established by Section 2 of Act 281. 1892-93 Ala. Acts No. 281. That act was repealed in 1900, but was reenacted in 1919 by Local Act 213. 1919 Ala. Acts No. 213, 62. Section 2 of the 1919 act states, in pertinent part, as follows:

The said Circuit Court of the Tenth Judicial Cir-cuit, holding at Bessemer, as in this Act provided, shall have, exercise and possess all of the jurisdiction and powers which are now, or which may hereafter be con-ferred by law in the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the ter-ritory of the county of Jefferson which is included in [the enumerated precincts] . . . and from and over the above mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of the Tenth Judicial Cir-cuit, as now held at Birmingham, is hereby expressly excluded.

Second, Alabama law creates the elective office of Deputy Clerk for the Bessemer Division of the Circuit Clerk of Tenth Judicial Circuit. Specifically, section 12-17-98 provides, in pertinent part:

[Beginning] in November, 1982, and every six years thereafter, there shall be elected by the qualified voters of the territory over which the circuit court of the tenth judicial circuit sitting at Bessemer has and exercises jurisdiction a deputy clerk of the circuit court, who shall hold office for six years and until his successor is elected and qualified. . . . [S]uch deputy clerk shall take and subscribe to the same oath of office, and enter into the same bond as circuit court clerks of the state, and shall be subject to the same liabilities.

Third, section 17-14-6 of the Code of Alabama provides that all "clerks of the circuit court" (which in this context, being read in para materia with section 12-17-98, includes deputy clerks) shall be elected in the November, 2006, gen-eral election for terms of six years, to wit:

clerks of the circuit court shall be elected on the first Tuesday after the first Monday in November 2006, and they shall hold their respective offices for the term of six years from the first Monday after the second Tues-day in January next after their election and until their successors are elected and qualified.

Fourth, Act 429, enacted by the 1957 Legislature, provides, in pertinent part, as follows:

Section 1. Whenever any vacancy occurs in any elective state or county office in any county having a population of 500,000 or more, according to the last or any subsequent federal decennial census, the vacancy shall be filled in the manner prescribed by law, but any person appointed to fill any such vacancy shall hold office only until the next general election for any state officer held at least six months after the vacancy occurs, and until his successor is elected at such election and qualified. The successor cho-sen at such election shall hold office for the unexpired term, and until his successor is elected and qualified.

Thus, under Act 429 (1957) if the office of Deputy Clerk of the Bessemer Division of the Tenth Judicial Circuit is vacated prior to the end of a term of office, then the person appointed to complete that term of office must stand for election and be elected to complete that term of office in the next general elec-tion if the vacancy in the Deputy Clerk's Office occurred more than six months prior to that next general election.

Act 429 (1957) is either a local act or a general act of local application. Therefore, Act 429 may be superseded by any contrary general law or any con-trary provision in the Alabama Constitution. Although, however, there are or have been statutory provisions and constitutional provisions governing when persons appointed to fill the unexpired terms of other specific elective offices in Alabama must stand for election in the next general election and when such per-sons are not required to stand for election in the next general election but are entitled to serve the unexpired term of office to which they were appointed,(fn1) there are no statutory provisions or constitutional provisions addressing this issue either for other elective officials, generally, or for circuit clerks or deputy circuit clerks, specifically.

Accordingly, Act 429 governs. Applying the language of that act to the question you pose, if such a vacancy occurs, the date that such a vacancy occurs will be determinative.

If a vacancy in the Bessemer Division Deputy Clerk's Office occurs prior to May 2, 2010 (which is six months prior to the November 2, 2010, general election), any person appointed to fill the vacancy in that office must stand for election in the November 2, 2010, general election and, if elected, may serve the remainder of the unexpired term for that office, i.e., until January 2013, when the person elected to that office in the November 6, 2012, general election takes office.

If a vacancy in the Bessemer Division Deputy Clerk's Office occurs after May 2, 2010, the person appointed to fill the vacancy in that office may serve the remainder of the unexpired term for that office, i.e., until January 2013, without being required to stand for election in the November 2, 2010, general election.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Griffin Sikes, Jr., Legal Division, Administrative Office of Courts.

Sincerely,

TROY KING

Attorney General

By:

BRENDA F. SMITH

Chief, Opinions Division

TK/GS

904336/138811

1. For example, section 17-14-6 addresses several court system elected officials, including judges and circuit clerks, and the filling of vacancies in such offices. It makes specific provisions for when a person appointed to fill a vacant judgeship must stand for election in the next general election and when such an appointee may serve the remainder of the vacated judgeship's term of office before being required to stand for election. No similar provision, however, is made in this statute or elsewhere in state law to govern when a person appointed to fill a vacated elective clerk's office is required to stand for election.

Other Alabama statutes make specific provisions for other elected offices; e.g. , section 11-3-1(b) of the Code addresses the similar issue of when an appointee to an unexpired term of a county commissioner must stand for election.

Further, prior to Alabama's adoption of Amendment 328, former Section 165 of the Alabama Constitution specifically provided that persons appointed to vacancies in the office of circuit clerk served for the unexpired term of office. That provision, however, was not incorporated into Amendment 328.