When the office of county prosecuting attorney falls vacant, who fills it, and what happens if the county can't find a qualified replacement?

Plain-English summary

The Lincoln County Commissioners asked who has primary authority to fill a vacancy in the office of county prosecuting attorney, and what happens if no qualified replacement can be found.

The AG concluded the board of county commissioners has the duty under Idaho Code § 59-906. Practice around the state confirmed it: vacancies were routinely filled by the boards.

Two doctrinal complications had to be addressed. The first was sorting out which of several potentially-authorized actors should fill the vacancy. The district court could appoint a special prosecutor when the office was vacant under Idaho Code § 31-2603(a). The Attorney General could appoint a special assistant attorney general under Idaho Code §§ 31-2603(b) and 67-1401(5). The Governor had a backstop under Idaho Code §§ 67-802 and 59-912 to fill any vacancy not otherwise provided by law. The AG read these as fallback authorities triggered only when the primary mechanism (county commissioners) broke down.

The second was whether the county prosecutor actually held a "county office" within the meaning of § 59-906, which authorized the commissioners to fill "all vacancies in any county office." Idaho Const. art. 18, § 6 enumerates six county officers (commissioners, coroner, sheriff, assessor, treasurer, clerk/auditor/recorder) and adds: "No other county offices shall be established." The prosecuting attorney is not on that list. Several Idaho Supreme Court decisions could be read as treating the prosecuting attorney as a judicial-branch officer rather than a county officer. State v. Wharfield (1925) held that the office of prosecuting attorney sits in art. 5 of the Idaho Constitution (the judicial article) and called the prosecutor "if not a quasi-judicial officer, or an officer of the court, at least an officer of the judicial department." Derting v. Walker (1987) had recently called the placement in art. 5 "significant." The AG nonetheless concluded that the practice of treating the prosecuting attorney as a county office for vacancy-filling purposes was correct, primarily because no other allocation of authority worked sensibly. The AG specified that the appointee had to be qualified to be elected to that office (a licensed Idaho attorney).

When even that mechanism failed, the AG concluded the district court could appoint a "suitable" person under Idaho Code § 31-2603 as special prosecutor to perform prosecutorial duties for the time being. The court's authority was triggered when the office was vacant, the regular prosecutor was absent, or the regular prosecutor had a conflict.

Currency note

This opinion was issued in 1987. 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

Idaho Const. art. 5, § 18 establishes the office of county prosecuting attorney within the judicial article of the state constitution. That placement was unusual; most states put the prosecutor in the executive branch. Idaho Const. art. 18, § 6, by contrast, enumerates six "county officers" but does not include the prosecutor. The textual mismatch left ambiguous whether the prosecutor was a "county office" within the meaning of statutes referring generically to county offices.

Idaho Code § 59-906 directed the board of county commissioners to fill "all vacancies in any county office." Idaho Code § 31-2603 gave the district court the power to appoint a "special prosecutor" when the office was vacant, the regular prosecutor was absent, or had a conflict. Idaho Code § 31-2603(b) and § 67-1401(5) gave the Attorney General the power to appoint a "special assistant attorney general." Idaho Code § 67-802 and § 59-912 gave the Governor a residual fallback.

The Idaho Supreme Court had touched the question in three cases. State v. Wharfield (1925) was the most direct, treating the prosecutor as an officer of the judicial department. The holding had been cited in dissents in State v. Griffiths (1980) and State v. Russell (1985), but never overruled. Derting v. Walker (1987) had called the prosecutor's placement in art. 5 "significant" while addressing a different question (whether prosecutorial fees from city misdemeanor contracts had to be turned over to the county).

The AG's pragmatic conclusion bypassed the doctrinal puzzle by reading § 59-906 broadly enough to cover the prosecuting attorney for vacancy-filling purposes, while preserving the fallback mechanisms.

Common questions

Who fills a vacancy in the office of county prosecuting attorney in Idaho?

The board of county commissioners under Idaho Code § 59-906. The appointee must be qualified for election to the office (a licensed Idaho attorney).

What if the commissioners can't find anyone qualified?

Under Idaho Code § 31-2603, the district court may appoint a "suitable" person as special prosecutor to perform the duties for the time being.

What about the Attorney General or the Governor?

Both have fallback authority. The AG can appoint a special assistant attorney general under Idaho Code §§ 31-2603(b) and 67-1401(5). The Governor has residual authority under Idaho Code §§ 67-802 and 59-912 to fill vacancies "not otherwise provided by law." These authorities are triggered only if the primary mechanism (commissioners + district court special prosecutor) breaks down.

Why wasn't the prosecuting attorney clearly a "county officer"?

Idaho Const. art. 18, § 6 lists six county officers (commissioners, coroner, sheriff, assessor, treasurer, clerk/auditor/recorder) and says "No other county offices shall be established." The prosecuting attorney is established by Idaho Const. art. 5, § 18, in the judicial article. State v. Wharfield (1925) treated the prosecutor as a judicial-branch officer rather than an executive county officer. The AG nonetheless read Idaho Code § 59-906 (which references "any county office") to cover the prosecutor for vacancy-filling purposes.

What qualifications must the appointee have?

The same qualifications required for election to the office. Idaho Code § 31-2603 contemplates a licensed attorney. The AG's reading required the appointee to meet election qualifications, not merely the lower threshold of "suitable" applicable to a special prosecutor.

Citations

Idaho Constitution: Idaho Const. art. 5, § 18; art. 18, §§ 6, 7.

Idaho statutes: Idaho Code §§ 31-2603, 59-906, 59-912, 67-802, 67-1401(5).

Idaho cases: State v. Wharfield, 41 Idaho 14, 236 P. 862 (1925); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Russell, 108 Idaho 58, 696 P.2d 909 (1985); Derting v. Walker, 113 Idaho 1, 739 P.2d 354 (1987).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-10.pdf

Original opinion text

Full opinion text is preserved in the linked PDF. The opinion analyzed the allocation of authority among the board of county commissioners, the district court, the Attorney General, and the Governor for filling a vacancy in the office of county prosecuting attorney. The AG worked through the constitutional placement of the prosecutor's office in art. 5 (the judicial article) versus the enumeration of "county officers" in art. 18, § 6, and concluded that despite the textual ambiguity, the board of county commissioners has the primary duty under Idaho Code § 59-906 to fill the vacancy with an election-qualified replacement, and the district court may appoint a "suitable" special prosecutor under Idaho Code § 31-2603 if no qualified replacement is found.

DATED this 22nd day of September, 1987.

JIM JONES
Attorney General
State of Idaho