Can a person accept the governor's appointment to fill the Desha County District Court (McGehee Department) judgeship and still be eligible to run for the newly-created Twenty-Seventh District judgeship in 2016?
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Plain-English summary
Senator Eddie Cheatham asked about an upcoming vacancy in the Desha County District Court, McGehee Department. The Governor would appoint someone to fill the remainder of the term. Could that appointee then run in 2016 for the newly-created Twenty-Seventh District state district court judgeship (effective January 1, 2017), or would Amendment 29's no-succession rule bar the candidacy?
Amendment 29 to the Arkansas Constitution governs gubernatorial appointments to fill vacancies in elective offices. Section 2 contains the rule at issue: "No person appointed under Section 1 shall be eligible to succeed himself." Amendment 80, § 17(B) applies this rule to district court judgeships through Ark. Code Ann. § 16-17-132(c).
The AG read the no-succession rule literally. The appointee would be filling a vacancy in the Desha County District Court (McGehee Department), which is a local district court created under Act 1727 of 2003 with countywide jurisdiction. The Twenty-Seventh District state district court (created under Act 1219 of 2011, effective January 1, 2017) is a different judgeship: it has district-wide rather than countywide jurisdiction, it covers Desha and Chicot Counties combined, and it has five departments rather than two. The two positions are structurally distinct.
Brewer v. Fergus (2002) had addressed a closely analogous question for circuit judgeships. The Arkansas Supreme Court applied the literal terms of Amendment 29 and concluded that a candidate could not be deemed to be "succeeding himself" if running for a division judgeship previously held by another individual. The same logic applied here. The Twenty-Seventh District judgeship would not exist during the appointee's term in the McGehee Department, so the appointee could not be "succeeding himself" by running for a position that didn't yet exist.
Daniels v. Dennis (2006) had reinforced Brewer's narrow reading: "Amendment 29 prevents a person from succeeding himself or herself in the specific position to which he or she was appointed." A candidacy for a different specific position is not succession.
The bottom-line answer to both of Senator Cheatham's questions was yes. The appointee could accept the Governor's appointment to the Desha County District Court, and the appointee could still run for the Twenty-Seventh District state district court in 2016.
Currency note
This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Arkansas reorganized its district court system in two major waves.
The first wave came in 2003. Amendment 80 to the Arkansas Constitution (adopted November 2000) restructured the judiciary, with the new "District Courts" assuming on January 1, 2005, the jurisdiction previously held by municipal courts, corporation courts, police courts, justice of the peace courts, and courts of common pleas. Act 1727 of 2003 (codified at § 16-17-901 et seq.) established district court districts and departments and fixed the number of district judges.
The Desha County District Court was created under Act 1727. It has two departments (one in Dumas, one in McGehee), each with one judge elected countywide and with countywide jurisdiction. A "department" is the physical location where court is held; a "department" of a district court is a "local district court."
The second wave came in 2011. Act 1219 of 2011 (codified at §§ 16-17-1101-1112) created "state district courts" with district-wide rather than countywide jurisdiction. Effective January 1, 2017, Desha County would be combined with Chicot County to form the Twenty-Seventh District, with one state district court judge elected district-wide in the 2016 nonpartisan judicial election. The Twenty-Seventh District would have five departments located in Dermott, Eudora, Lake Village, Dumas, and McGehee.
Amendment 29 to the Arkansas Constitution governs appointments to fill vacancies in elective offices. Section 1 lets the Governor appoint. Section 2 imposes the no-succession rule: "No person appointed under Section 1 shall be eligible to succeed himself." For district court judgeships, Amendment 80, § 17(B) applies the Amendment 29 rule, via Ark. Code Ann. § 16-17-132(c).
Brewer v. Fergus (2002) is the foundational case for narrow application of the no-succession rule. The Arkansas Supreme Court read "succeed himself" literally: a candidate succeeds himself only into "the position to which he was appointed" and not "the division in which they were appointed to serve." Daniels v. Dennis (2006) reinforced this: succession means succession into the "specific position," not into a different specific position even if functionally similar.
The structural differences between the local district court and the state district court reinforce the AG's answer. The local court has countywide jurisdiction; the state court has district-wide jurisdiction. The local court covers one county; the state court covers two. The local court has two departments; the state court has five. By any measure, they are different positions.
Common questions
What is Amendment 29 designed to prevent?
The general rule is that a person appointed by the Governor to fill a vacancy in an elective office cannot run to keep that same office at the next election. The constitutional design prevents gubernatorial appointees from using the appointment as a head start on building incumbency.
Why doesn't Amendment 29 prevent the candidacy here?
Because the appointee is not running for the same office to which the appointee was appointed. The Twenty-Seventh District state district court is a new judgeship created by statute, structurally different from the local Desha County District Court (McGehee Department). Running for the new state court is not "succession" within the meaning of Amendment 29.
Could the appointee run for re-election to the Desha County District Court (McGehee Department)?
No, that would be running for the same office to which the appointee was appointed, which is what Amendment 29 bars.
Does this analysis apply only to district courts?
The legal framework applies to all elective offices subject to Amendment 29. Brewer v. Fergus involved circuit judgeships; this opinion applies the same logic to district judgeships. The principle (succession means the same specific position, not a similar position) is general.
What about the McGehee Department of the Twenty-Seventh District?
The McGehee Department in the new Twenty-Seventh District is still a different position. It is one of five departments of a district-wide court rather than a single-county court, and the judge is elected district-wide. The position the appointee held was a single department of a two-department countywide court.
Will the new state district court judge replace the local district court judges?
After January 1, 2017, the Twenty-Seventh District is served by a single state district court judge elected district-wide. The opinion implies the local district court structure is being superseded, but does not detail the transition rules.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-018
April 29, 2015
The Honorable Eddie Cheatham
State Senator
2814 Ashley 239
Crossett, Arkansas 71635-8824
Dear Senator Cheatham:
I am writing in response to your request for my opinion concerning a vacancy in a district court judgeship. The background information submitted with your request indicates that the issue involves the current Desha County District Court, McGehee Department, judgeship and the newly created Twenty-Seventh District judgeship that will become effective January 1, 2017. The following questions have been posed in light of the new Twenty-Seventh District:
- Can a person accept the governor's appointment to serve the remainder of the local [Desha County District Court] judgeship and still be eligible to run for the state [Twenty-Seventh] district court position?
- Would the state district court position be considered a completely new and different position, meaning the Amendment 29 prohibition would not prevent the person from being eligible to run for the state district court position after accepting an appointment to the local district court position?
RESPONSE
The answer to both of these questions is "yes," in my opinion. Some explanation of the relevant district court system will be helpful before expanding upon this response.
As reflected by your questions, the Desha County District Court is a "local" district court, having been established pursuant to Act 1727 of 2003. This act created new district court judicial districts following the adoption of Amendment 80 to the Arkansas Constitution in November, 2000. The Desha County District Court has two departments, one in Dumas and one in McGehee. Each department has one judge who is elected countywide, and the court has countywide jurisdiction.
Beginning January 1, 2017, Desha County will be combined with Chicot County to form a judicial district known as the Twenty-Seventh District. This "newly constructed judicial district" will have five departments, located in Dermott, Eudora, Lake Village, Dumas, and McGehee. This redistricting occurred under Act 1219 of 2011, which created "state district courts" and designated geographic areas for the courts. Pursuant to this 2011 legislation, the Twenty-Seventh District will be served by one "state district court judge" who will be elected district-wide in the 2016 nonpartisan judicial election. The court will have district-wide jurisdiction.
Your questions anticipate a vacancy in the Desha County District Court, McGehee Department judgeship. Such a vacancy will be filled by the Governor pursuant to Section 1 of Amendment 29 to the Arkansas Constitution. As you note in your correspondence, Amendment 29 states that "[n]o person appointed under Section 1 shall be eligible to succeed himself." The question to be resolved is whether the person appointed to the Desha County District Court judgeship would be "succeeding himself" if elected to the new Twenty-Seventh District judgeship, such that he or she is precluded from running for the latter judgeship by operation of Amendment 29.
The answer to that question is "no," in my opinion, because the person appointed to the local district court judgeship will not be running for the position to which he or she was appointed. I believe support for this conclusion is found in Brewer v. Fergus, where the Arkansas Supreme Court addressed a challenge to two candidates' eligibility to run for circuit judgeships in certain divisions of a circuit after each had served by appointment as circuit judge in other divisions of the same circuit. The Court simply applied the literal terms of Amendment 29, § 2 and concluded that a candidate could not be deemed to be running to "succeed himself" if he were running for a division judgeship previously held by another individual:
The sentence at issue [last sentence of Ark. Const. amend. 29, § 2] is clear and easily understood. No person appointed to fill a vacancy in an elective office may succeed himself into that same elective office when the election takes place to fill that office .... [N]either Fergus nor Smith is succeeding himself in the position to which he was appointed in 2001, because neither is running for the division in which they were appointed to serve.
Under the Court's reasoning in Brewer, a person who runs in 2016 as a candidate for state district court judge in the Twenty-Seventh District after serving to fill a vacancy in the McGehee Department of the Desha County District Court will not be "succeeding himself" into the same office. The Twenty-Seventh District judgeship will not yet exist during the Desha County District Court appointee's term of office. By running as a candidate for the newly created Twenty-Seventh District judgeship, the local district court judge will not be succeeding himself or herself, according to the plain language of Amendment 29, but will instead be running for a new and distinct office from the one to which the judge was appointed.
It is therefore my opinion that there would be no violation of Amendment 29, § 2, under the circumstances you describe. In response to your specific questions, it is my opinion that the person in this case could accept the Governor's appointment to serve the remainder of the local judgeship and still be eligible to run for the state district court position. In my opinion, the state district court position will be a new and different position, meaning that the Amendment 29 prohibition will not prevent the person from being eligible to run for the state district court position after accepting an appointment to the local district court position.
Deputy Attorney General Elisabeth A. Walker prepared this opinion, which I hereby approve.
Sincerely,
LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh
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