When an Arkansas justice of the peace doesn't take the oath, does the seat go vacant or stay with the prior officeholder?

Plain-English summary

A Washington County justice of the peace ran for re-election in November and lost (or didn't run; the opinion is ambiguous). The newly-elected JP for District 4 then changed his mind, refused to take the oath of office, and declined to serve. The incumbent JP wanted to stay in the seat. Could the quorum court call a special election to fill District 4? Could the quorum court declare the seat vacant?

Then-Attorney General Leslie Rutledge said no on both counts. Article 19, section 5 of the Arkansas Constitution is self-executing: "All officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified." When the JP-elect refused to take the oath required by Article 19, section 20, he did not become "qualified," so the incumbent's hold-over continued automatically.

The opinion then ran through each of the four questions in turn. On Question 1, the quorum court has no authority to call a special election. Per Simpson v. Teftler and McCoy v. Story, only the legislature can authorize an election, and no such authorization exists for this scenario. On Question 2, a successor is "qualified" only after taking the oath of office (Article 19, section 20), which must happen on or before January 1 when the new term commences (§ 21-1-102(a)(1)). On Question 3, no vacancy exists. The Arkansas Supreme Court in Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 (1967), held that a statutory declaration of vacancy in this situation conflicted with the Constitution: "the office is not in fact vacant, it is filled by the incumbent until his successor is elected and qualified." On Question 4, the quorum court cannot declare the seat vacant under § 14-14-1308, because that statute applies only when the "incumbent" is disqualified, and the elected-but-unsworn person is not the incumbent.

The practical result: District 4 retained its previous JP as a holdover, and the next general election would put the seat back on the ballot.

Currency note

This opinion was issued in 2021. 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.

Common questions

Why doesn't a JP-elect's refusal to take the oath create a vacancy?
Because "vacancy" under Arkansas law means there is no incumbent to discharge the duties. As long as the prior JP is still in the seat under Article 19, section 5's holdover rule, there is an incumbent. The seat is filled, not vacant. Justice v. Campbell expressly rejected an old statute that tried to declare a vacancy in this scenario, finding it unconstitutional.

What if the incumbent doesn't want to hold over?
The opinion did not address that. If the incumbent resigns, then a vacancy would arise, and the quorum court's vacancy-filling authority under § 14-14-1308 would activate. But the holdover is a constitutional right, not an obligation, and the holdover JP can presumably step down on her own.

When exactly does the new term begin?
January 1 following the election (§ 21-1-102(a)(1)). The JP-elect must take the oath on or before that date. If the oath is not taken by January 1, the incumbent's holdover continues into the new term.

Could the legislature create a way to call a special election in this scenario?
Per the opinion's footnote citing McCoy v. Story, yes. "Article 19, Section 5, of our Constitution does not specifically order an election, nor does it fix any time for holding such an election ... [t]he Legislature alone had authority to provide for an election." The opinion notes "my research has revealed no such legislation," meaning the Arkansas General Assembly has not (as of 2021) created a mechanism to fill these mid-term-style situations.

What does "qualified" mean for an Arkansas elected officer?
Article 19, section 20 says officers must be sworn in "before entering on the duties of their respective offices." So qualification means taking the oath. Without the oath, even a duly-elected person cannot lawfully occupy the office.

Background and statutory framework

Article 19, section 5 of the Arkansas Constitution is the holdover provision. It applies generally to elected officers and bridges the gap between expiring terms and successor qualification. Article 19, section 20 is the oath provision, requiring all civil officers to swear an oath "before entering on the duties of their respective offices." Together they construct a system where there is always an incumbent in office: if the successor qualifies, the successor takes over; if the successor does not qualify, the prior incumbent continues.

The seminal case, Justice v. Campbell, involved a county judge-elect who died before taking office. A statute purported to declare the office vacant. The Arkansas Supreme Court held the statute unconstitutional as applied: "in that event the office is not in fact vacant, it is filled by the incumbent until his successor is elected and qualified." The opinion in 2020-012 imported that holding directly to the JP-refusal-of-oath situation.

The vacancy-filling statute at § 14-14-1308 lists "conditions of vacancy" the quorum court can declare. All require disqualification of the "incumbent" (death, resignation, removal, abandonment, etc.). Since the JP-elect is not the incumbent (the prior JP holds the seat under § 19, section 5), the statute does not give the quorum court a hook.

McCoy v. Story (1967) and Simpson v. Teftler (1928) are the older authorities explaining that calling an election requires legislative authorization. Faulkner v. Woodard (1941) applied Article 19, section 5 to a similar JP-disqualification situation, holding that the prior incumbent properly held over when the JP-elect was ineligible to serve.

Citations

Constitutional provisions:

• Ark. Const. art. 7, § 38 (Repl. 2019) (JP terms)
• Ark. Const. art. 19, § 5 (Repl. 2019) (holdover)
• Ark. Const. art. 19, § 20 (oath requirement)

Statutes:

• Ark. Code Ann. § 14-14-1308 (Repl. 2013) (quorum court declaration of vacancy)
• Ark. Code Ann. § 21-1-102(a)(1) (Repl. 2016) (term commencement January 1)

Cases:

• Faulkner v. Woodard, 203 Ark. 254, 156 S.W.2d 243 (1941)
• McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954 (1967)
• Simpson v. Teftler, 176 Ark. 1093, 5 S.W.2d 350 (1928)
• Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 (1967)
• State v. Green and Rock, 206 Ark. 361, 175 S.W.2d 575 (1943)
• Rice v. Palmer, 78 Ark. 432, 96 S.W. 396 (1906)

Prior AG opinions:

• Op. Att'y Gen. 2010-145

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-012
January 29, 2021
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Robin Lundstrum
State Representative
1327 Elm Springs Road
Springdale, AR 72762-9119
Dear Representative Lundstrum:
This is in response to your request for an opinion concerning a Justice of the Peace position in Washington County. Your correspondence sets out the following scenario:
Last year, the JP that represents District 4 on the Quorum Court did not file for nor seek re-election. The person elected to represent District 4 in the November election, now no longer desires to hold the position and refuses to take the oath of office. The Arkansas Constitution, more specifically Article 19, Section 5, is clear that an incumbent remains in the position until their successor is elected and qualified, and thus a vacancy is not created. In this matter, the incumbent desires to remain as the JP for District 4 until a successor is elected and qualified.

In light of the foregoing background information, you have asked the following questions:

1. Can the Quorum Court call for a special election to elect someone to represent the said district, or does the incumbent remain in that position until the next general election for that office?
2. When is a successor in office deemed "elected and qualified"?
3. As described herein, when is an office or elected position deemed to be vacant?
4. As described here, can the Quorum Court declare the JP seat vacant?

RESPONSE
The answer to the first part of Question 1 is "no," the Quorum Court may not call for a special election. In response to the second part of this question, the incumbent is entitled to continue in office until the next general election, when a successor will presumably be elected. With regard to Question 2, the law contemplates that a successor will be elected at the next general election. To be qualified, the successor must take the oath of office on or before January 1, when the new term commences. In response to Question 3, there is no vacancy in the scenario you have presented, where the elected JP did not take the oath of office and the incumbent remains in office. An office is deemed vacant when for some reason, such as death, resignation, removal, or abandonment, there is no incumbent to discharge the duties. The answer to Question 4 is "no."

Question 1: Can the Quorum Court call for a special election to elect someone to represent the said district, or does the incumbent remain in that position until the next general election for that office?

The background facts set forth in your correspondence indicate that the JP-elect is not eligible to hold the office because he did not take the oath of office. (The oath requirement is discussed further below in response to Question 2.) As a consequence of the JP-elect's failure to qualify, the incumbent JP is entitled to continue in office after the expiration of his official term and until a successor is elected and qualified. This is in accordance with Article 19, Section 5 of the Arkansas Constitution, which provides that "[a]ll officers shall continue in office after the expiration of their official terms, until their successors are elected and qualified."

Because a JP is elected for a term of two years, a successor will presumably be elected at the next general election. There is no law authorizing the Quorum Court to call for a special election. Legislation might be enacted to enable a holder's midterm replacement under these circumstances. But my research has revealed no such legislation.

Question 2: When is a successor in office deemed "elected and qualified?"

As explained above, and based on the facts you have outlined, current law contemplates that a successor will be elected at the next general election. Regarding when a successor is "qualified," a JP-elect will not be qualified until he takes the oath of office pursuant to Article 19, Section 20 of the Arkansas Constitution, which requires officers to be sworn in "before entering on the duties of their respective offices ...." A JP enters on the duties of his office on January 1, when his term of office begins.

Question 3: As described herein, when is an office or elected position deemed to be vacant?

There is no vacancy under the circumstances you have described, involving a JP-elect who has not qualified for the office. The Arkansas Supreme Court addressed similar circumstances in Justice v. Campbell, involving a county judge-elect who died before taking office. A statute at the time purported to declare a vacancy when a person elected to an office fails to qualify. The Court determined that the statute was "in conflict with the Constitution," adding:

The Constitution, Art. 19, § 5, declares in substance that in that event [failure of officer-elect to qualify] the office is not in fact vacant, it is filled by the incumbent until his successor is elected and qualified.

In sum, an elective office occupied by a holdover pursuant to Ark. Const. art. 19, § 5, cannot be considered vacant.

Question 4: As described herein, can the Quorum Court declare the JP seat vacant?

No. A quorum court declares an office vacant when "conditions of vacancy" exist. All of the instances set out in this statute involve circumstances which would disqualify the "incumbent." As explained above, the person who was elected JP in the scenario you have described is not an "incumbent" because he is not in possession of the office and is not legally authorized to discharge the duties of the office.

Sincerely,
LESLIE RUTLEDGE
Attorney General