Could Appointed Judge Serve Longer Than Original Term?
Could a judge appointed to finish a term possibly serve beyond the length of the original term without facing election? We have had comments on both sides of this in a discussion related to retiring Supreme Court Justice Harold See (who has since indicated that he intends to serve his entire term).
Previous comments may be found here and here (including the comments).
There are people who know much more about this than I. One of them sent me email saying that, despite what others have said, the answer is no.
The Alabama Supreme Court has consistently interpreted the quoted provision of the Alabama Constitution as requiring an appointed judge to run in the next general election, regardless of whether he has served a full year in office, if his predecessor would have had to run in that next election. See Hooper v. Siegelman, 386 So.2d 207, 210 (Ala. 1980) (”No appointee can serve beyond the term of his predecessor in office”). The same is true for similar provisions regarding non-judicial appointments: Thomason v. Florence, 388 So.2d 994, 996 (Ala. 1980) (”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 to a period ending with the next general election held at least six months after the vacancy occurred, whichever is earlier.”).
The Attorney General has also consistently interpreted these provisions as not allowing an appointee to serve beyond his predecessor’s original term. (Ala. Op. Atty. Gen. No. 2004-158) (”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.”); 191 Ala. Op. Atty. Gen. 16 (1983) (”The only exception to this rule occurs when a general election is held less than a year after appointee takes office and the appointee’s predecessor would have had to run in that election. In other words, an appointee to a judgeship cannot serve beyond the term of his predecessor in office.”).
An interesting question and discussion all around. I appreciate those who have contributed to it.
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Ah, yes, “Justice Per Curiam” strikes again in the Hooper case. Surprisingly, one of the parties in that case made a good point that under the new constitutional language, “an appointee is expressly appointed to his own term,” which was different from the old constitutional provisions that were reviewed in the McDonnell case that Hooper cites. Still, like pouring old wine into new wineskins, McDonnell was successfully invoked to support a conclusion that “no appointee can serve beyond the term of his predecessor in office” even though the Constitution itself had changed markedly from the time McDonnell was decided in 1917.
Given the Alabama Constitution means what five current members say it means on a given day, I would not be surprised if the unsigned opinion in Hooper is not strictly applied the next time that a Republican governor appoints a Republican judge to a vacancy where the preceding officeholder had less than one year to go before having to stand for election. Until that happens, though, I’ll have to strike my colors and concede that the phrase “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” has been written out of the Constitution in situations where an appointee is (un)lucky enough to be appointed to replace a judge who had less than a year left in his (or her) term.
Comment by anonymous — August 1, 2007 @ 3:16 pm
Ain’t the law a bitch?
Comment by Flea Bailey — August 1, 2007 @ 3:48 pm
The law might be a bitch. But it marks its territory so haphazardly so often that I would suspect a Y chromosome instead.
Comment by anonymous — August 1, 2007 @ 5:08 pm
. . . SNAP! . . .
ouch!
As for comment #1, thanks for bringing all this up and helping us learn something. I found it very interesting.
Comment by Danny — August 1, 2007 @ 5:16 pm