When a Maryland circuit judge's 15-year term expires and the judge holds over until retirement, when must the newly appointed successor run for election?

Plain-English summary

Maryland's State Court Administrator asked the Attorney General when a person appointed to succeed a retiring Supreme Bench of Baltimore City judge, Albert L. Sklar, would have to run for a full 15-year term. Judge Sklar's 15-year term had actually expired in November 1981, but under Maryland's constitutional "holdover" rule he kept serving until he hit mandatory retirement age in December 1981, at which point he stepped down without ever being reappointed. The opinion concluded that because the underlying vacancy legally arose at the expiration of the 15-year term, not at the later retirement date, the newly appointed successor would have to run in the very next general election, November 2, 1982, rather than waiting the full year required for vacancies that arise in other ways, such as death or resignation mid-term.

Currency note

This opinion was issued in 1982. 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.

The opinion applied Article IV, sections 3 and 5 of the Maryland Constitution as they read in 1982, governing how and when circuit court judicial vacancies must be filled by election. Maryland's system for selecting and retaining circuit court judges has been the subject of further constitutional and statutory change since 1982. Anyone researching when a currently appointed Maryland circuit judge must stand for election should verify the current constitutional text and any more recent case law or opinions rather than relying on this opinion's 1982 analysis.

Common questions

If a judge keeps working past when their term technically ends, does that reset the vacancy clock?
No, according to this opinion. It held that a judge's "holdover" service after a 15-year term expires, permitted under Article IV, section 3 until the judge reaches mandatory retirement age or a successor is elected, does not change when the underlying vacancy is deemed to have arisen. The vacancy still dates back to the expiration of the 15-year term, even if the judge kept sitting on the bench for weeks or months afterward.

Why did the timing matter so much here?
Because Article IV, section 5 sets two different election timelines depending on how a vacancy arose: if it arose from the expiration of a 15-year term, the successor must be elected at the very next general election, but if it arose some other way, such as death or resignation mid-term, the successor doesn't have to be elected until the first general election that is at least one year after the vacancy occurred. Classifying this vacancy correctly determined whether the newly appointed judge would run in 1982 or have to wait until 1984.

Could the retiring judge have avoided a new election happening so soon?
The opinion's footnotes explain that Judge Sklar could have been reappointed by the Governor to fill the vacancy created by his own term's expiration, notwithstanding that he would have had to retire again soon after. Had that happened, the vacancy triggering the election clock would instead have been the one created by his subsequent retirement, which would have pushed the required election out to 1984. But Judge Sklar was not reappointed, so the original November 1981 vacancy controlled.

Background and statutory framework

Article IV, section 5 of the Maryland Constitution provides that upon any vacancy in a circuit court judgeship, however it occurs (death, resignation, removal, disqualification by age, expiration of a 15-year term, or otherwise), the Governor appoints someone to fill the office until the election and qualification of a successor. That successor must be elected either at the first biennial general election for members of Congress after the expiration of the 15-year term, if the vacancy arose that way, or at the first such general election that is at least one year after the vacancy arose, if it arose in any other way. The opinion noted that Maryland Attorney General opinions from 1958 and 1961 had already established that the one-year minimum applies only to vacancies arising in ways other than expiration of the 15-year term, and that the relevant election is measured from the date the vacancy arose, not from when the replacement judge was appointed or qualified.

Judge Sklar was last elected to a full 15-year term in November 1966, and under Article IV, section 3, a circuit judge's term runs 15 years from the date of election, so his term expired, and the underlying vacancy arose, in November 1981. Article IV, section 3 also lets a judge continue serving past the end of the 15-year term, as a common law and constitutional "holdover," until a successor is elected and qualified or the judge turns 70, whichever comes first. Judge Sklar held over under this rule until he reached mandatory retirement age on December 18, 1981, and was not reappointed to fill the vacancy created by his own term's expiration.

The opinion reasoned that this holdover period did not change when the vacancy legally arose. It cited the general rule, recognized in cases like State ex rel. Ryan v. Bailey, State ex rel. Hodges v. Amos, and People v. Pillman, that a holdover's continued occupancy of an office does not prevent a vacancy from existing once the regular term has expired, and that the vacancy is available to be filled by the appropriate authority notwithstanding the holdover, citing State ex rel. Sikes v. Williams and Denison v. State. Because the vacancy here dated to the November 1981 expiration of the 15-year term rather than to Sklar's subsequent December 1981 retirement, the opinion concluded that Article IV, section 5's shorter timeline applied: the successor had to be elected at the first general election following the vacancy, which was November 2, 1982. The opinion's footnotes explained that the outcome would have been different, pushing the election to November 1984, had Judge Sklar instead been formally reappointed to fill his own vacancy and then retired from that new appointment.

Citations

Statutes:

• Md. Const. art. IV, §5
• Md. Const. art. IV, §3

Cases:

• State ex rel. Ryan v. Bailey, 48 A.2d 229 (Conn. 1946)
• State ex rel. Hodges v. Amos, 133 So. 623 (Fla. 1931)
• People v. Pillman, 1 N.E.2d 788 (Ill. App. Ct. 1936)
• State ex rel. Sikes v. Williams, 121 S.W. 64 (Mo. 1909)
• Denison v. State, 61 S.W.2d 1017 (Tex. Civ. App. 1933), error ref., 61 S.W.2d 1022 (Tex. 1933)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

JUDICIARY

Circuit Court—Elections—"Holding Over"—Retirement of Holdover After Term Expiration—Timing of Election Depends on How and When Vacancy Arose

January 12, 1982

William H. Adkins II, Esq.
State Court Administrator

You have requested our opinion concerning the term of the person to be appointed to succeed The Honorable Albert L. Sklar as Associate Judge, Supreme Bench of Baltimore City. Specifically, you ask when the person appointed to succeed Judge Sklar, who retired last month, would be required to run for election for a full 15-year term.

For the reasons given below, it is our opinion that, if the person appointed to succeed Judge Sklar desires to seek a full 15-year term of office, that person would be required to run for a full term at the general election to be held on November 2, 1982.

I
Article IV, §5

The filling of vacancies in the office of judge of a circuit court (such as the Supreme Bench) is governed by Article IV, §5 of the Maryland Constitution:

"Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge of a circuit court ... , or creation of the office of any such judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor .... His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected." (Emphasis added.)

As indicated by the first sentence of §5, a person appointed to fill a vacancy, whether that vacancy arose through expiration of a 15-year term, death, resignation, or otherwise, will hold office until the election and qualification of "his successor". The second sentence of §5 provides, in turn, that "[h]is successor", i.e., the successor to the person appointed to fill the vacancy,1 shall be elected either: (i) "at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way)"; or (ii) at "the first such general election after one year after the occurrence of the vacancy in any other way than through the expiration of such term".

1 See 43 Opinions of the Attorney General 213, 214-15 (1958).

Thus, as a general matter, the issue of when an election must be held depends on how and when the original vacancy arose: Under the last clause of the second sentence of §5, it is evident that the minimum one-year requirement applies only if that vacancy occurred in some way "other . . . than" by reason of the expiration of a 15-year term. See 46 Opinions of the Attorney General 60 (1961); 43 Opinions of the Attorney General 213 (1958). Under both clauses of that sentence, it is similarly evident that the "first" general election is to be measured from the date of the original vacancy rather than from the date of the appointment or qualification of the person appointed to fill that vacancy. See 54 Opinions of the Attorney General 148 (1969); 43 Opinions of the Attorney General 213 (1958).

II
Analysis

We understand that Judge Sklar was last elected to a full 15-year term in November of 1966. Under Article IV, §3 of the Constitution, the term of a circuit court judge expires 15 years after "the time of his election" (not, for example, 15 years after the date of subsequent qualification). See 9 Opinions of the Attorney General 287 (1924). Thus, Judge Sklar's term expired, and the vacancy arose, in November of 1981, on the 15th anniversary of his election.

It is this vacancy, the expiration of a term of 15 years, that is now to be filled by gubernatorial appointment. Although Judge Sklar continued to serve on the bench until December 18, 1981, when he reached mandatory retirement age, he did so merely as a "holdover" under the common law and Article IV, §3 of the Constitution. Article IV, §3 provides, in relevant part:

"Each of the said Judges shall hold his office for the term of fifteen years from the time of his election, and until his successor is elected and qualified, or until he shall have attained the age of seventy years, whichever may first happen". (Emphasis added.)2

2 As indicated above, Judge Sklar reached mandatory retirement age on December 18, 1981. Thus, under the last clause quoted above, he was precluded from holding over beyond that date even though a successor had not as yet been appointed.

See also 60 Opinions of the Attorney General 407 (1975) (judge whose 15-year term expires may continue to hold office until successor is appointed).

Significantly, Judge Sklar (at, we understand, his own request) was not reappointed by the Governor to fill the vacancy arising out of the expiration of his 15-year term.3 Consequently, at any time after the expiration of that term in November, even during the brief period until December 18, 1981, during which Judge Sklar "held over", the Governor was authorized to appoint a successor to immediately assume office and fill the resultant vacancy. It is thus evident that this vacancy, which yet remains to be filled, is one arising out of the expiration of Judge Sklar's 15-year term, not his subsequent retirement.

3 The last sentence of Article IV, §5 provides that: "Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected." (Emphasis added.) Thus, Judge Sklar, as an incumbent, could have been reappointed to fill the vacancy, notwithstanding the fact that he would have had to retire soon after such reappointment. See note 4 below.

This analysis is consistent with the general rule that the temporary occupancy of an office by a "holdover" does not prevent the existence of a vacancy and the filling of the office by the appropriate authority. See, e.g., State ex rel. Ryan v. Bailey, 48 A.2d 229 (Conn. 1946); State ex rel. Hodges v. Amos, 133 So. 623 (Fla. 1931); People v. Pillman, 1 N.E.2d 788 (Ill. App. Ct. 1936). That is, an office becomes vacant when the regular term expires, and a vacancy to be filled exists on expiration of that term, notwithstanding the fact that the incumbent may have been "held over". See, e.g., State ex rel. Sikes v. Williams, 121 S.W. 64 (Mo. 1909); Denison v. State, 61 S.W.2d 1017 (Tex. Civ. App. 1933), error ref., 61 S.W.2d 1022 (Tex. 1933). See also 60 Opinions of the Attorney General 407 (1975).

In sum, then, the present vacancy to be filled here is one that, for purposes of Article IV, §5, arose in November of 1981 on "the expiration of the term of fifteen years". In such cases, §5 requires that the successor of the person appointed to fill that vacancy shall be elected at the "biennial general election for Representatives in Congress" that "first" follows the occurrence of the vacancy. The first such election following the expiration of Judge Sklar's term is the general election to be held on November 2, 1982.4

4 As indicated above in note 3 and accompanying text, Judge Sklar could have been, but was not, formally reappointed to succeed himself. Had Judge Sklar in fact been so reappointed, then (i) the original vacancy arising out of the expiration of his 15-year term would have ceased to exist, (ii) the Governor would have been precluded from appointing anyone else to serve in that office until the office again became vacant, and (iii) the vacancy now to be filled would have been one arising directly out of Judge Sklar's subsequent retirement on December 18, 1981. In such a case, §5 would require that the successor of the person appointed to fill the subsequent vacancy be elected at "the first [biennial] general election [for Representatives in Congress] after one year after the occurrence of the vacancy". The first such election, i.e., one that is at least one year from December 18, 1981, is the general election to be held in November of 1984. See also 53 Opinions of the Attorney General 205 (1968) (analysis of effect of resignation of incumbent and appointment of successor (i) before general election and (ii) between primary and general elections).

III
Conclusion

In summary, it is our opinion that the person appointed to succeed Judge Albert L. Sklar as Associate Judge, Supreme Bench of Baltimore City, would be required to run in the general election to be held on November 2, 1982, assuming that the appointee desires to seek a full 15-year term of office.

Stephen H. Sachs, Attorney General
Avery Aisenstark, Principal Counsel,
Opinions and Advice