Montana Attorney General Opinion 15-603

Opinion No. 603 Courts-Vacancies-Appointments- Eleetions-District Judg~Proc­ lama,tion of Election. HELD: The Gorernor is authorized to appoint a district judge to fill a racancy in such office, but an election must be held at the next general elec- tion to fill such position for the re- mainder of the term and thereupon the person so elected will become en- titled to the office, and the term of the appointee terminated. Where the vacancy occurs after is- suance of proclama tion of general elec- tion a supplemental proclamation of election should issse notifying the vot- ers of the judicial district that such election will take place. August 30, 1934 You advise that a racancy has oc- curred in the office of District Judge and ask for information as to your right to appoint a successor and the term for which such appointment is to he made. The Constitution of the State of Mon- tana provides, Article VIII, Section 34: "Vacancies in the office of .. * * judge of the district court, ...... shall be filled by appointment, by the gover- nor of the state" .. *. A person al1- pointed to fill any such vacancy shall hold his office until the next general election and until his successor is elected and qualified." In the case of State ex reI. Patter- son v. Lentz, 50 Mont. 322, it was de- cided by the Supreme Court of this state that, where by statute the office of an additional judge was created in a Judicial District and the Governor authorized to appoint such Judge who would hold office orer one general elec- tion and until the next general elec- tion when Judges were customarily elected, the law was invalid to the ex- tent that it attempted to permit the Governor to appoint a District .Judge to hold office after a general election. 'Vithout a complete proclamation on the subject after party nominations had been made and no candidates selected, independent candidates filed for the office of District Judge. The election was held ralid and the term of the appointee terminated. . Section 8820, Revised Codes of :\Ion- tana, 1921, provides: "If a vacancy occur in the office of judge of a district court, the governor must appoint an eligible person to holll the office until the election allli quali- fication of a judge to fill the "aeancy, which election must take place at the next succeeding general election. and the judge so elected holds office for the remainder of the unexpired term." I, therefore, conclude that you are authorized to appoint a district judge to fill the "acancy and tha t an election should be held to fill such position at the next general election. and there- upon the person so elected will become entitled to the office and the term of the appointee terminated. I would also call your attention to the fact that a proclamation of election should issue in connection with this matter. Quoting from the decision of the Supreme Court of this state, in the case of State ex reI. Patterson v. Lentz, 50 Mont. 322, on page 343: "It becomes clear that it is inculll- bent upon the gO\'ernor to include in his proclamation specific mention of the fact that in a particular district. where this condition exists, an elec- tion is to be held to fill the office for the rest of the term. He is the proper authority to proclaim the regular elec- tion for all officers, and section 626!l (now R. C. 8820) makes it incumbent upon him to include in his proclama- tion mention of the fact that a state office held by his appointee is to be filled by election." It will, therefore, be necessary that you issue a proclamation of election advising that in a certain county or counties, comprising a certain judicial district, a general election will be held to elect one district judge to complete a term and fill a vacancy. The proc- lamation should indicate that it is a supplementary proclamation and should contain the same formalities as the proclamn tion heretofore issued.