(concurring in the majority) — The majority correctly concludes that Fain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977), requires these judgeships be filled by gubernatorial appointment. Fain means that for the purposes of gubernatorial appointments, a vacancy arises when an office comes into existence. In that case, the judgeship came into existence when the statute became law.
Often, however, the date at which an act becomes law is different from that when it becomes operational, or as here, when the new office comes into existence. See Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455 (1942); Callahan v. City and County of San Francisco, 68 Cal. App. 2d 286, 156 P.2d 479 (1945). "Exist" is defined as "to be in present force, activity, or effect at a given time ..." Black's Law Dictionary 684 (4th ed. 1968). Although the statute in this case became law on September 1, 1979, Const, art. 2, §§ 1(b), 41, the offices lack the requisite force or activity until January 1, 1981, and hence no vacancies arise until then. See State ex rel. New Wash. Oyster Co. v. Meakim, 34 Wn.2d 131, 208 P.2d 628 (1949); Geiser v. Myers, 249 Ore. 543, 439 P.2d 859 (1968); Schee v. Phelps, 184 Iowa 1134, 169 N.W. 455 (1918).
Because the dissent believes the effective date of a statute ipso facto is also the effective date of the offices it creates, it finds a similarity between newly created judgeships and the office of a Supreme Court Justice. Once one realizes such synchronicity in dates does not always occur, as in this case, the similarity disappears. The office of a Supreme Court Justice is already in existence and will be at the November election. In contrast, as discussed above, the offices of the new judgeships do not exist until January 1. The dissent's analogy is based on the premise that both offices are now in being. Since the judgeships will not be in existence in November, unlike the Supreme Court positions, the public cannot vote for them.
Brachtenbach, Horowitz, and Hicks, JJ., concur with Utter, C.J.