Mr. Joseph M. Dolan, Chairman Lonoke County Election Commission P. O. Box 326 England, AR 72046
Dear Mr. Dolan:
This is in response to your request for an opinion regarding the municipal judge position in the City of Lonoke, Arkansas. You state in your request that Mr. Lance Hanshaw was elected municipal judge for the City of Lonoke in the 1986 general election, and that Mr. C.A. Walls, Jr., filed for this position during the recent filing period for the Democratic Preferential Primary.
You have asked, specifically, whether this position is open for this election, or whether it will not be open until the 1990 general election.
Assuming that the incumbent in this instance was elected to a four (4) year term, and that there is currently no vacancy in the office, it may be concluded that 1987 is not the proper year to hold a municipal election to fill this office.
A review of the city ordinance establishing the Lonoke Municipal Court indicates that the municipal judge does indeed serve a four (4) year term, and until his successor is elected and qualified. While we do not have information or documentation sufficient to review the legislative history of that ordinance, it appears to track the language of Act 60 of 1927, as amended, which is codified as A.C.A. 16-17-201, et. seq., with respect to the term of Office. See A.C.A. 16-17-207.
It is assumed from the facts presented that the office is not vacant, that is, that the current judge is in possession of the office and is legally authorized and qualified to discharge the duties of the office. It should be noted in this regard that an office presently filled cannot generally become or be vacant without either a voluntary or involuntary removal. 48A C.J.S. Judges, 30(a). The issue of whether a vacancy in a judicial office exists is ordinarily a judicial question. Id. at 30(b).
It may therefore be concluded in response to your specific question that the office of municipal judge will not, under these circumstances, be open for election until the 1990 general election.
We hope that this proves to be of assistance. If there are other material facts outside those contained in your request, corresponding modification of this opinion may be necessary.
The foregoing opinion, which I hereby approve, was prepared by Elisabeth A. Walker, Assistant Attorney General.