Does an Arizona county supervisor have to resign to apply for a Superior Court judgeship the Governor would fill by appointment?

Plain-English summary

Arizona's "resign-to-run" statute, A.R.S. § 38-296(A), generally forces an incumbent in a salaried elected office to resign before "offer[ing] himself for nomination or election to any salaried local, state or federal office," unless the incumbent is in the final year of the current term. Mohave County Attorney Matthew J. Smith asked the Solicitor General whether the rule kicked in when an elected county supervisor (mid-term) submitted an application to the Governor for appointment to fill a Superior Court vacancy.

The Solicitor General's informal opinion said no, the resign-to-run statute did not apply to a gubernatorial-appointment application. The Constitution lets the Governor fill Superior Court vacancies by appointment until the next election, Ariz. Const. art. VI, § 12(B). An application for that appointment is not a nomination paper filing under § 16-311(A), and therefore is not an "offer for nomination or election" under § 38-296.

The opinion rested on two textual hooks:

1. Appointment is not nomination or election. The statute restricts "offer[ing] himself for nomination or election." Seeking a gubernatorial appointment is a separate process. The Solicitor General quoted the office's earlier Opinion I82-001 for the proposition that the resign-to-run law's purpose is to keep an incumbent's attention from being diverted by campaigning. An appointment process does not raise that concern.

2. The statute defines its own trigger. Section 38-296(B) says an incumbent "shall be deemed to have offered himself for nomination or election" only upon "the filing of a nomination paper pursuant to § 16-311, subsection A." The same subsection adds that a "formal declaration of candidacy" alone does not trigger the rule. So the resign-to-run obligation hinges on the formal filing of papers, not on subjective intent or earlier indicia of interest.

A vacancy on the Superior Court is filled by the Governor "appointing a person to serve until the election and qualification of a successor." Ariz. Const. art. VI, § 12(B). Submitting an application to be considered for that appointment is not the filing of a nomination paper, so § 38-296(A) does not require resignation.

Currency note

This opinion was issued in 2017. 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.

What the opinion did and did not decide

It decided: An elected, salaried official may submit an application to the Governor for appointment to a Superior Court vacancy without first resigning the elected office.

It did not decide:

• Whether the official would have to resign at some later point in the appointment process (for example, before being sworn in to the appointed office, or before the subsequent retention election that follows a Superior Court appointment).
• Whether the official's elected office and the appointed office could be held simultaneously (a separate question controlled by the incompatibility-of-offices doctrine and any specific statutes governing the two offices).
• Whether the analysis would extend to appointments for unsalaried offices, or to appointments to non-judicial state offices.
• Whether the rule changes when the elected official is in the final year of the current term (in which case § 38-296(A) does not apply at all).

The Solicitor General also noted, in line with the prior Opinion I82-001, that the policy concern behind the resign-to-run statute is the diversion of an incumbent's attention by campaigning. A judicial appointment process does not involve campaigning, which reinforced the textual conclusion.

Common questions

Q: Did this opinion say a county supervisor could become a Superior Court judge while still serving as supervisor?
A: No. The opinion addressed only the application stage. Whether the supervisor would have to resign before assuming the judgeship, or whether the two offices could be held simultaneously, is a separate question controlled by the incompatibility-of-offices doctrine and any specific statutory rules. The opinion did not opine on those issues.

Q: What is "resign-to-run"?
A: It is a rule in A.R.S. § 38-296 that prohibits an incumbent in a salaried elected office from "offer[ing] himself for nomination or election to any salaried local, state or federal office" unless either the incumbent is in the final year of the current term, or first resigns. The purpose is to prevent an officeholder from running for a different office while still drawing salary and attention from the current one.

Q: When does the resign-to-run clock actually start?
A: Under § 38-296(B), it starts when the incumbent files a nomination paper under § 16-311(A). A "formal declaration of candidacy" by itself does not start it. The Solicitor General read this as deliberate: the Legislature wanted a clear, formal trigger.

Q: Why doesn't an application count as offering yourself for nomination or election?
A: Because the statute uses both words ("nomination" and "election"), and the only formal trigger the statute identifies is the filing of nomination papers, which is a step in the electoral process. Asking the Governor to consider you for an appointment is a different process, governed by Ariz. Const. art. VI, § 12, not by Title 16 nomination procedures.

Q: What happens to a Superior Court appointee in the next election?
A: Article VI, § 12(B) says the Governor's appointee serves "until the election and qualification of a successor." Superior Court judges in some Arizona counties are subject to merit selection and retention, in others to contested election. Whether a sitting county supervisor who is appointed to the bench would later need to resign the supervisor seat to run for the judgeship in the subsequent election is a question § 38-296(A) might reach, but that question was not before this opinion.

Q: Did the Solicitor General have to issue this informally?
A: The opinion was informal because of timing. The opinion noted that the formal AG opinion process "necessarily involves several layers of review and is not, therefore, conducive to a speedy turnaround," and Mr. Smith's request was time-sensitive. The opinion still carries persuasive weight, though formal opinions go through more review.

Background and statutory framework

Arizona's resign-to-run rule was a relatively narrow constraint on incumbent officeholders. A.R.S. § 38-296(A) prohibits an incumbent in a salaried elected office from offering for "nomination or election to any salaried local, state or federal office" unless either (a) the incumbent is in the final year of the term, or (b) the incumbent has first resigned. Section 38-296(B) ties the statute to the filing of nomination papers under § 16-311(A), the standard mechanism for getting on the primary ballot.

The 1982 AG opinion (I82-001) the Solicitor General cited had explained the policy: the goal is to ensure that an incumbent's attention to the current office is not diverted by campaigning for a different one. That focus on campaigning explains why the statute uses the formal-filing trigger, before the candidate files papers, the candidate is not in active campaign mode in the eyes of the law.

Arizona Superior Court vacancies are filled by gubernatorial appointment under Ariz. Const. art. VI, § 12(B). In counties using merit selection (Maricopa, Pima, Pinal, and Coconino), the Governor selects from a slate produced by a judicial nominating commission. In other counties, judges are elected, and a vacancy created mid-term is filled by gubernatorial appointment until the next general election.

The question reaching the Solicitor General in 2017 was a practical one: an elected county supervisor wanted to apply for a gubernatorial appointment to the Superior Court bench, and the supervisor's lawyer needed to know whether sending the application required resignation first. The answer was no, the resign-to-run statute is triggered by nomination paper filings, not by application letters to the Governor.

Citations and references

Constitution and statutes:

• Ariz. Const. art. VI, § 12(B) (gubernatorial appointment to fill Superior Court vacancies)
• A.R.S. § 16-311(A) (filing nomination papers)
• A.R.S. § 38-296(A) (resign-to-run prohibition)
• A.R.S. § 38-296(B) (when an incumbent is "deemed to have offered" for nomination)

Prior AG opinion:

• Ariz. Att'y Gen. Op. I82-001 (purpose of resign-to-run is to prevent attention being diverted by campaigning)

Source

• Landing page: https://www.azag.gov/opinions/i17-003-r17-008
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I17-003.pdf

Original opinion text

Matthew J. Smith

Mohave County Attorney

Post Office Box 7000

315 North 4th Street

Kingman, AZ 86402-7000

Re: R17-008 / I17-003

Application of Arizona Revised Statutes § 38-296 to an elected salaried official applying to the Governor for appointment to the Bench (Superior Court)

Dear Mr. Smith:

You requested an opinion on the following questions: (1) "Would an elected salaried official, such as a county supervisor, who is not in his or her final year of office, have to resign from office, pursuant to Arizona's resign-to-run law found at A.R.S. § 38‑296, if the official submits an application to the Governor to fill an open vacancy in the Superior court?;" and (2) "does the elected official 'offer himself for nomination or election to any salaried local, state or federal office', as contemplated by A.R.S. § 38‑296 and A.R.S. § 16-311(A), if he submits an application to the Governor to fill an open vacancy in the Superior Court?" As you may be aware, our formal opinion process necessarily involves several layers of review and is not, therefore, conducive to a speedy turnaround. We understand time is of the essence regarding your request. For this reason, we offer the following informal opinion regarding the questions presented.

Arizona's resign-to-run law prohibits an incumbent not in the final year of his term from "offer[ing] himself for nomination or election to any salaried local, state or federal office" without first resigning. A.R.S. § 38-296(A). The mere submission of an application for a gubernatorial appointment to the State bench is not a prohibited "offer . . . for nomination or election," as defined in A.R.S. § 38-296(B). Accordingly, the elected salaried official may legally submit an application to the Governor without resigning from office.

This conclusion flows from two statutory details in A.R.S. § 38-296. First, seeking an appointment to a salaried state office is not the same thing as seeking nomination or election to a salaried state office. This distinction is consistent with this Office's previous observation that Arizona's resign-to-run law is designed to assure that an incumbent's attention is not diverted by campaigning. See Ariz. Att'y Gen. Op. I82-001 at 2.

Second, the resign-to-run law explicitly states that an incumbent "shall be deemed to have offered himself for nomination or election" only upon "the filing of a nomination paper pursuant to § 16-311, subsection A." A.R.S. § 38-296(B). This subsection further clarifies that an "incumbent of a salaried elected office is not deemed to have offered himself for nomination or election to an office by making a formal declaration of candidacy for the office." Id. Thus the restrictions of the resign-to-run law adhere only upon the formal filing of papers, without regard to earlier indicia of a potential candidate's subjective intentions.

Applying this construction to the question presented is straightforward. Vacancies on the Superior Court are filled by the governor "appointing a person to serve until the election and qualification of a successor." Ariz. Const. art. VI, § 12(B). An elected salaried official submitting an application to be considered for such a gubernatorial appointment has not filed a nomination paper pursuant to A.R.S. § 16-311(A). Therefore, the restrictions of A.R.S. § 38-296(A) do not apply.

Sincerely,

Dominic E. Draye

Solicitor General

5931986.2