Alabama Advisory Opinions May 30, 2000: AGO 2000-159 (May 30, 2000)

Alabama Attorney General Opinions

2000.

AGO 2000-159.

Dear Judge Bevill:

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

QUESTIONS

(1) When will I have to run again for district judgeship?

(2) At that election, will I be running for a new six-year term?

(3) If you advise that my term is not governed by the provisions of amendment no. 328, section 6.14 of the Alabama Constitution, please explain why I am an exception to the rule governing judicial vacancies, i.e., the appointee holds office for twelve months following appointment and prior to the next general election (assuming that this does not extend beyond the end of his or her predecessor's term) and runs in the next general election for a full six-year term.

FACTS AND ANALYSIS

Your request states:

I was appointed as District Judge for Walker County by Governor Siegelman on December 1, 1999, to fill the unexpired term of Judge Warren Laird, which would have ended January 20, 2003, according to the personnel records of the Administrative Office of Courts.

Vacancies in judicial offices are governed by section 6.14 of amendment no. 328 of the Constitution of Alabama, which 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; however, vacancies occurring in any judicial office in Jefferson county shall be filled as now provided by amendments 83 and 110 to the Constitution of Alabama of 1901 and vacancies occurring in Shelby, Madison, Wilcox, Monroe, Conecuh, Clarke, Washington, Henry, Etowah, Walker, Tallapoosa, Pickens, Greene, Tuscaloosa, St. Clair county shall be filled as provided in the Constitution of 1901 with amendments now or hereafter adopted, or as may be otherwise established by a properly advertised and enacted local law . A judge, other than a probate judge, appointed to fill a vacancy, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election held after he has completed one year in office. At such election such judicial office shall be filled for a full term of office beginning at the end of the appointed term.

ALA. CONST. amend. 328, § 6.14.

Pursuant to section 6.14, vacancies occurring in Shelby, Madison, Wilcox, Monroe, Conecuh, Clarke, Washington, Henry, Etowah, Walker, Tallapoosa, Pickens, Greene, Tuscaloosa, and St. Clair counties ("the named counties") are to be filled in accordance with "amendments now or hereafter adopted, or as may be otherwise established by a properly advertised and enacted local law." Id. The only time the courts have construed this provision of section 6.14 was in Griggs v. Bennett. Griggs v. Bennett , 710 So. 2d 411 (Ala. 1998).

In Griggs , the question presented was when a person appointed to fill a judicial vacancy must stand for election in the Twentieth Judicial Circuit, which includes both Henry County (a named county) and Houston County (not a named county). Although the Court quoted from the arguments of Griggs and Gilmore, the Court did not decide how section 6.14 should be applied in a named county. Instead, it concluded that:

A strict construction of the proviso [amendment 328, section 6.14], which applies to Henry County but not to Houston County, would exclude the Twentieth Judicial Circuit from the scope of the proviso's operation.

710 So. 2d at 414.

The portion of section 6.14 that is most relevant in answering your question is:

[V]acancies occurring in Shelby, Madison, Wilcox, Monroe, Conecuh, Clarke, Washington, Henry, Etowah, Walker, Tallapoosa, Pickens, Greene, Tuscaloosa, St. Clair county shall be filled as provided in the Constitution of 1901 with amendments now or hereafter adopted, or as may be otherwise established by a properly advertised and enacted local law.

ALA. CONST. amend. 328, § 6.14. Giving this language its plain meaning, vacancies are to be filled in the named counties "as provided in the Constitution . . . with amendments now . . . adopted." Id. The Constitution as now amended means as amended by amendment 328, which repealed Article VI of the Constitution. Section 6.14 also contemplates future enactments of the Legislature, which could change the appointment process. Most significant among such future enactments is the authority that has been given to the Legislature to provide for a different process in the named counties by local law.

The Judicial Article allows the named counties to retain the flexibility to provide, by local law, an alternate appointment process, such as a judicial nominating commission, for example. Section 6.14 should only be read to grant the named counties the authority to establish a different appointment process, not to alter when the term of a person appointed to fill a vacancy ends and an election must be held. The language of the Judicial Article provides uniformity in judicial appointees' terms of office:

A judge, other than a probate judge, appointed to fill a vacancy, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election held after he has completed one year in office. At such election such judicial office shall be filled for a full term of office beginning at the end of the appointed term.

ALA. CONST. amend. 328, § 6.14.

Vacancies in a district judgeship in a named county, which has not exercised its authority to adopt an alternate appointment process, must do so pursuant to the Judicial Article. Appointees to judicial office, other than the office of probate judge, must stand for election at the next general election after they have completed one year in office. They are then elected for a full term.

CONCLUSION

In answer to your questions:

(1) Because you were appointed to fill the vacancy in the District Judgeship of Walker County on December 1, 1999, you are to run as a candidate in the next general election for state office held at least one year after that vacancy occurred; that is, you are to run in the 2002 general election.

(2) The person elected at the 2002 general election will be elected to a full six-year term.

(3) Since you are subject to the provisions of amendment no. 328, section 6.14, this question is not answered.

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

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/CJS/TRK

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