Wyoming Advisory Opinions July 02, 1980: AGO 1980-014 (July 2, 1980)

AGO 1980-014.

DISCUSSION

W.S. 5-4-202 provides that if a county fails to elect a qualified person to the office of the Justice of the Peace, the Board of County Commissioners shall appoint a qualified person to the office. This statute makes no mention of how long the term of this appointment is to last, but states that "...the Supreme Court of Wyoming shall superintend such appointment under such rules and regulations as may be prescribed by law..." Although this statute was enacted in 1971, the effective date was January 1, 1975. (Laws 1971, Chapter 214, Section 41). W.S. 5-4-203, immediately following the statute mentioned above, sets forth that if a vacancy occurs in the office of the Justice of the Peace, then the person appointed to the office by the Board of County Commissioners will hold office only until the next general election, instead of thenormal four (4) year term for which a Justice of the Peace is elected. W.S. 5-4-104. If it can be determined that a county's failure to elect a qualified person to the office of Justice of the Peace creates a vacancy in that office, then W.S. 5-4-203 will operate to limit the term of the appointed Justice of the Peace to the general election following the appointment. In addition to W.S. 5-4-203, W.S. 22-18-111(a) provides that any appointment by the Board of County Commissioners to fill a vacancy in an elective office lasts only until the next general election unless the vacancy occurs within forty (40) days of the next election.

Until 1974, the Wyoming Statutes defined a vacancy in terms of what happened to the incumbent, for example, death or resignation. In 1974, the definition of what constitutes A vacancy in an office for which an appointment may be made was expanded to include the situation in the question you present. The portion added to the statutes in 1974 reads:

(b) A vacancy exists in an electiveoffice, if upon expiration of the term for which a person was elected, a successor has not been elected and qualified. W.S. 22-18-101.

This act had an immediate effective date. In the question presented, no candidate received a majority of the votes cast and therefore, a vacancy exists. The Wyoming Legislature, in making the 1974 addition to the statute defining when a vacancy exists, probably used the same reasoning as a recent Florida Supreme Court case where the Court said:

Whenever possible, judicial officersshall be elected by a complete electoral process. The appointive process...was intended to fill vacancies only until the office could again be filled by a popularly elected officer and was not intended to frustrate the electoral process. Leedom v. Thomas,373 A.2d 1329 (Fla. 1977).

In conclusion, the 1974 addition to W.S. 22-18-101 indicates that a vacancy exists when no qualified person iselected to the office of the Justice of the Peace, and therefore, the appointment of a person to that office is to last only until the next general election as specified in W.S. 5-4-203 and W.S. 22-18-111.

This conclusion is in direct conflict with Rule 3 of the Wyoming Administrative Rules of Justice of the Peace Courts, which reads:

(c) The term of office of a Justice of the Peace appointed under this rule and W.S. 5-4-202, shall be four (4) years, commencing the first Monday in January following the general election.

The Wyoming Supreme Court promulgated this rule under the authority vested in it by Article 5, Section 2 of the Wyoming Constitution, which provides that the "Supreme Court...shall have general superintending control over all inferior courts, under such rules and regulations as prescribed by law." This authority is prescribed in W.S. 5-2-114 and W.S. 5-2-115. The material portions of these two statutes read:

The Supreme Court of Wyoming may from time to time adopt, modify, and repeal general rules and forms governing pleading practice and procedure, in all courts of this State, for the purpose of promoting the speedy and efficient determination of litigation upon its merits. W.S. 5-2-114.

And,

(b) Such rules shall neither abridge, enlarge, nor modify the substantive rights of any person nor the jurisdiction of any of the courts, nor change the provisions of any statute of limitation. W.S. 5-2-115.

We are concerned that the substantive right of the public to vote and the substantive right of a candidate to run for office appear to be abridged by this rule. We are further concerned about the possible contest of actions by an appointed Justice of the Peace after a general election following his appointment. While it obviously is not possible to predict the outcome of such a contest, it appears desirable to avoid an unfortunate result. For example, a defense attorney may well assert on appeal the issuance of a search warrant which led to the discovery of incriminating evidence if the warrant had been authorized by a Justice of the Peace in the third or fourth year following his appointment.

For these reasons we are of the opinion that in order to be on the safe side, a Justice of the Peace who is appointed to fill a vacancy created by the failure of a candidate to receive a majority of the votes cast in an election, should be appointed to serve until the next general election and until his successor qualifies.