The Honorable Paul R. Bosson Prosecuting Attorney Eighteenth Judicial District East 501 Ouachita Avenue Hot Springs, AR 71901
Dear Mr. Bosson:
This is in response to your request for an opinion regarding A.C.A. §16-17-108(ww) (Supp. 1997), which authorizes the creation of an additional municipal court judgeship for the Hot Springs Municipal Court. Id. at subparagraph (1). You have set forth the following question in this regard:
A question has arisen as to how this position should be filled if it is created between now and January 1, 1999. There seems to be a question as to whether this position can be filled by a joint resolution between the Garland County Quorum Court and the Hot Springs Board of Directors or must this position remain vacant until after the general election in November, 1998?
It is my opinion that such a joint resolution would not be effective to fill the position until the general election. Nor, however, must the position remain vacant. Reference must be made, instead, to Article 7, Section 50 of the Arkansas Constitution, which governs the filling of vacancies in, inter alia, municipal judgeships. Article 7, § 50 provides:
All vacancies occurring in any office provided for in this article shall be filled by special election, save in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancies shall be filled by appointment by the Governor.
Article 7, § 50 applies to municipal judgeships because they are provided for in Article 7. See Op. Att'y Gen. Nos. 93-314 and 90-304. Additionally, the weight of authority in Arkansas is in accord with the proposition that a newly created office becomes vacant upon its creation. Op. Att'y Gen. 90-010. Thus, in my opinion, the creation of a new municipal court judgeship pursuant to A.C.A. § 16-17-108(ww)(1) will in all likelihood cause a vacancy to exist, to be filled in accordance with Ark. Const. art. 7, § 50. Subparagraph (5) of § 16-17-108, which you have noted, is in my opinion inapplicable. The position will ultimately be filled at the next general election after creation of the judgeship, in accordance with § 16-17-108(ww)(2).
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh