Alabama Advisory Opinions March 26, 1996: AGO 1996-162 (March 26, 1996)

AGO 1996-162.

Dear Governor James:

This opinion is issued in response to your request for an opinion from the Attorney General.

Should the judgeships created by Act No. 90-539 and Act No. 91-640, which received preclearance from the United States Justice Department on March 18, 1996, be filled by gubernatorial appointment?

Act No. 90-539 created an additional circuit judgeship in the Twentieth Judicial Circuit (Henry and Houston Counties). This judgeship was to be filled first in the 1992 general election, and elected every six years thereafter at the same time as the other circuit judges for the Twentieth Judicial Circuit are elected. Act No. 91-640 created a new circuit judgeship in the Tenth Judicial Circuit, Bessemer cut-off division (Jefferson County), a new circuit judgeship in the Fifteenth Judicial Circuit (Montgomery County) and a new circuit judgeship in the Nineteenth Judicial Circuit (Autauga, Elmore and Chilton Counties) who shall be a resident of Chilton County.(fn1) These judgeships too were to be first filled in the 1992 general election and elected every six years thereafter at the general election.

The judgeships created by Act Nos. 90-539 and 91-640, and many other circuit judgeships in Alabama, were the subject of litigation in S.C.L.C. v. Sessions , 56 F.3d 1281 (11th Cir. 1995), cert. denied, _____ U.S. _____ (Jan. 8, 1996). The United States Court of Appeals for the Eleventh Circuit in S.C.L.C. v. Sessions , supra , upheld the at-large method of electing circuit judges in Alabama. Due to this litigation, preclearance was not initially given by the Justice Department for the creation of the judgeships in question. Thus, the judgeships were not placed on the ballot in the 1992 elections as provided in Act Nos. 90-539 and 91-640. On March 18, 1996, after the Supreme Court refused to review the S.C.L.C. decision and in response to a series of decisions by the U.S. District Court for the District of Columbia, the Justice Department granted preclearance of these laws. See , e.g. , Georgia v. Reno , 881 F.Supp. 7 (D.DC 1995); New York v. United States , 874 F.Supp. 394 (D.DC 1994); Texas v. United States , C.A. No. 94-1529 (D.DC July 10, 1995).

The answer to your question is dependent on whether a vacancy exists in these judgeships which were not placed on the ballot in 1992, as the Legislature required. The laws that created these judgeships are now enforceable without impediment under the Voting Rights Act.

Section 6.14 of Amendment 328 of the Constitution of Alabama 1901 states:

The office of a judge shall be vacant if he dies, resigns, retires, or is removed. Vacancies in any judicial office shall be filled by appointment by the governor . . .

The filling of a vacancy in a judgeship where no election was held for that position is not specifically enumerated in this provision. The question that then arises is whether section 6.14 of the judicial article enumerates the exclusive circumstances in which a vacancy can occur in a judicial office. The judicial article does not purport to define the term "vacancy," but lists four circumstances that can create a vacancy. The judicial article also does not state that these are the exclusive circumstances in which a vacancy occurs, so reference to case law is required.

Initially, it must be emphasized that the law abhors vacancies in public offices, and great precautions are taken to avoid their occurrence. McRae v. State , 269 Ala. 241, 112 So.2d 487 (1959); Prowell v. State , 142 Ala. 80, 89 So. 164 (1903). Furthermore, the Alabama Supreme Court in McRae stated:

We do not think it essential to the existence of a vacancy that it be declared by statute. Statutes frequently do enumerate the situations which create or constitute vacancies in public office. However, no statute which we have found, nor does the statute quoted above, exclude vacancies arising from causes not there enumerated, such as the failure to elect or appoint a successor to an officeholder, dealt with in State ex rel. Smith v. Deason, supra, Ham v. State ex rel. Blackmon, 162 Ala. 117, 49 So. 1032, and State ex rel. Benefield v. Cottle, 254 Ala. 520, 49 So.2d 224.

It was stated in Ham v. State , 162 Ala. 117, 49 So. 1032 (1909):

It has been often held that the words "vacancy" and "vacant," when applied to an office and as used in a statute, have no technical meaning, but only their common or popular meaning. These words, when so used, are held to mean empty, unoccupied, without an incumbent. The office is vacant whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event.

In Ham , it was determined that where the term of judge of the County Court of Coffee County had expired and because the Senate had failed to elect a new judge, as provided by law, a vacancy existed for which the Governor was authorized to make an appointment.

In State v. Cottle , 254 Ala. 520, 49 So.2d 224 (1950), there was a failure to elect a constable in Beat 10, Randolph County, for the term of office beginning January 1945 and for the term of office beginning January 1949. The individual appointed to fill a vacancy in 1941 continued to serve in that position through these two election cycles. The Alabama Supreme Court concluded that there was a vacancy in the office which could be filled by appointment by the Governor.

The Supreme Court of Alabama in State v. Deason , 264 Ala. 596, 88 So.2d 674 (1956), ruled that where no space was provided on the ballot for the member of the Board of Revenue of Walker County, District 1, appointment by the Governor to that position was valid. The Court further stated in Deason :

It is insisted that the appointment is invalid because there is not shown to have been a certificate of the vacancy undertaken to be filled. There are certain situations creating a vacancy when the law requires a certificate to that effect. . . . We find no requirement for such certificate of vacancy caused by the failure to elect some one to an office.

The case law, therefore, provides a clear answer to your question. Because no elections were held in 1992 for the judgeships in question as required by statutes creating the judgeships, due to litigation and the lack of preclearance by the Justice Department, there now exist vacancies in these judgeships that may be filled by gubernatorial appointment. Indeed, this office is unaware of any authority to the contrary.

Act No. 93-882, which created a new circuit judgeship for the Sixth Judicial Circuit (Tuscaloosa County), recognized that the election for that judgeship might not be held in 1994 because of the lack of timely preclearance and it provided for appointment by the Governor to the judgeship within 60 days of preclearance. There is clearly no basis to suggest any other method of filling the appointment in Tuscaloosa County.

Furthermore, if the State wanted to fill these judgeships in the 1996 general election (the first general election after preclearance was obtained), this would constitute a change in voting or election practice for which preclearance must also be obtained, because this was not the practice or procedure as originally approved by the Justice Department. See , e.g. , N.A.A.C.P. v. Hampton County Election Commission , 470 U.S. 166 (1985) (change in election date caused by withdrawal of objection under Section 5 required separate preclearance); Shuford v. Alabama State Board of Education , civil action no. 89-T-196-N (M.D. Ala. March 20, 1996)(change from staggered to concurrent terms for State Board of Education required preclearance). If these judgeships are not filled by appointment, then under present law the judgeships cannot be filled until the 1998 general election. The Legislature could pass a new law to fill these judgeships by election before 1998, but that would require preclearance.

There are three ways in which these judgeships may be filled. First, the Governor may appoint judges to fill these vacancies. Second, the judgeships may be filled in the 1998 general election. Third, if the vacancies are not filled by appointment, the Legislature can pass a new law to fill these judgeships before 1998, and this office can submit that special election law for preclearance.

Because no elections were held in 1992 as required by the statutes for the judgeships created by Act No. 90-539 and Act No. 91-640, due to litigation and the lack of preclearance by the Justice Department, there exist vacancies in these judgeships which the Governor may, but is not required, to fill by appointment.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Bill Pryor of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

JS/LKO/jho

JF3.96/OP

1. The circuit judgeship in the 19th Judicial Circuit was precleared by the Justice Department on December 23, 1991.