If a Maryland judge loses a primary election, how long can they keep serving on the bench afterward?

Plain-English summary

Judge James A. Perrott of the Supreme Bench of Baltimore City, who had lost his bid for renomination at the recent primary election, asked the Attorney General for the last day he could hold office. His original 15-year term had expired in November 1981, and the Governor had reappointed him under a commission stating he would serve "until the general election of November 1982." The opinion concluded that Judge Perrott could keep serving past that November election date, all the way until his elected successor actually took the oath of office, because the Maryland Constitution's holdover provision requires an appointed judge to serve until the successor is both elected and qualified, and qualifying requires taking the oath, which typically happens some weeks after the election once results are certified. The opinion explained that this constitutional rule overrides the narrower end date written into the Governor's commission.

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, section 5 and Article I, section 10 of the Maryland Constitution as they stood in 1982, along with decades of prior Attorney General opinions on judicial holdover and qualification. Maryland's rules on judicial elections, holdover, and the office-qualification process may have changed since 1982. Anyone researching how long a currently defeated or outgoing Maryland judge may continue serving 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

Does losing an election immediately end a judge's time on the bench?
No, according to this opinion. It held that the Maryland Constitution's Article IV, section 5 lets an appointed judge continue holding office until the successor is both elected and "qualified," and qualifying requires taking the oath of office, which does not happen on election day itself because election results first have to be tabulated and certified to the Governor before a commission issues to the winning candidate.

Did the wording of the judge's appointment commission matter?
The judge's commission from the Governor said he would serve "until the general election of November 1982," which could be read to suggest his service ended on election day itself. The opinion concluded that the Constitution's own holdover language controls over that more limited wording in the commission, and cited an earlier Attorney General opinion recommending that judicial commissions be revised to conform to the constitutional standard.

What counts as "qualifying" for office under Maryland law?
The opinion said qualifying has long been understood to require taking the applicable oath of office, citing 19th-century Maryland cases including Archer v. State, Harwood v. Marshall, and Thomas v. Owens, and noted that Article I, section 10 of the Constitution addresses filing an officer's oath with the Clerk of the Circuit Court when the officer qualifies outside the county where they reside.

Background and statutory framework

Judge Perrott had been elected to a full 15-year term on the Supreme Bench of Baltimore City in November 1966. When that term expired, the Governor reappointed him on November 20, 1981, under a commission describing his role as "Associate Judge of the Supreme Bench of Baltimore City to serve until the general election of November 1982." Having since lost his bid for renomination at the primary election, Judge Perrott asked the Attorney General to identify the last day he could remain on the bench.

The opinion turned to Article IV, section 5 of the Maryland Constitution, which provides that upon a vacancy arising from the expiration of a circuit judge's or Supreme Bench judge's 15-year term, the Governor appoints a replacement who "shall hold the same until the election and qualification of his successor," and that the successor "shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years." The opinion explained that Judge Perrott's 1981 reappointment was itself an appointment to fill the vacancy created by the expiration of his own preceding 15-year term, meaning his tenure under section 5 was tied to the election and qualification of whoever won the November 1982 general election to succeed him, not simply to the date of that election.

The opinion quoted a 1924 Attorney General opinion explaining the purpose of this holdover rule: because election returns must first be tabulated by the Supervisors of Elections and certified to the Governor, who then issues a commission to the winning candidate, there is inevitably some delay between an election and a new judge's actual qualification, and the Constitution's holdover language ensures the bench remains filled during that gap. The opinion then explained that "qualifying" for judicial office has long been understood in Maryland to require taking the oath of office, citing Archer v. State, Harwood v. Marshall, and Thomas v. Owens, and noted Article I, section 10 of the Constitution's requirement that an officer's oath be filed with the Clerk of the Circuit Court when the officer qualifies outside their county of residence.

Because the Constitution's holdover rule, not the more limited language of the Governor's commission, controls, the opinion concluded, citing a 1975 Attorney General opinion, that "when an incumbent judge is defeated in November, he is authorized to hold over until the election victor takes the oath." It also cited a 1958 Attorney General opinion recommending that judicial commissions be revised to conform to this constitutional standard rather than stating a fixed end date tied to the election itself. An Editor's Note attached to the opinion states that it was originally written as a letter of advice and published in revised format because of the general guidance it provided.

Citations

Statutes:

• Md. Const. art. IV, §5
• Md. Const. art. I, §10

Cases:

• Archer v. State, 74 Md. 410 (1891)
• Harwood v. Marshall, 10 Md. 451 (1857)
• Thomas v. Owens, 4 Md. 189 (1853)

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—"Holding Over"—Judge Defeated at Primary Continues to Serve Until Successor Elected and Qualifies

October 5, 1982

The Honorable James A. Perrott
Supreme Bench of Baltimore City

You have requested our opinion as to the last day on which you may hold office as Associate Judge of the Supreme Bench of Baltimore City.

For the reasons discussed below, we believe that you may continue to hold office until your successor is elected and qualified, that is, until your successor is elected at the general election in November of this year and, thereafter, until that successor qualifies by taking the requisite oath of office.

I
Background

As we understand the relevant facts, you were elected to the Supreme Bench, for a full 15-year term, in November of 1966. On the expiration of that term, you were reappointed by the Governor on November 20, 1981, as, in the words of the Governor's Commission to you, an "Associate Judge of the Supreme Bench of Baltimore City to serve until the general election of November 1982".

Having since lost your bid for nomination at the recent primary election, you now ask when your present tenure will expire.

II
Discussion

Article IV, §5 of the Maryland Constitution provides, in relevant part:

"Upon every occurrence or recurrence of a vacancy through . . . expiration of the term of fifteen years of any judge of a circuit court or of the Supreme Bench of Baltimore City, . . . 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. ..."

As indicated by the first sentence of §5, your reappointment by the Governor in November of 1981 was an appointment to fill the vacancy that arose out of the expiration of your own preceding 15-year term. In this regard, the Constitution expressly provides that the person appointed to fill such a vacancy "shall 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 of the person so appointed to fill the vacancy, "shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years", in this case, the general election to be held on November 2, 1982.

Thus, although your immediate successor is to be "elected" next month, the Constitution provides that you will continue to hold office until the "election and qualification" of that individual. The purpose of this "holdover" provision has been described as follows:

"As a matter of fact the Judge who is elected does not get his commission on the day of election because, under the provisions of the Election Law, the Supervisors of Elections have to tabulate the returns and certify the result to the Governor who in turn issues the commission to the successful candidate. This necessarily causes some little delay, and, therefore, the constitution provides that the [incumbent] Judge shall hold his office until his successor is qualified". 9 Opinions of the Attorney General 287, 288 (1924).

In this context, it has long been understood that "qualifying" for appointed or elective office requires, among other things, the taking of the applicable oath of office. See, e.g., Archer v. State, 74 Md. 410 (1891); Harwood v. Marshall, 10 Md. 451 (1857); Thomas v. Owens, 4 Md. 189 (1853). See also Article I, §10 of the Maryland Constitution ("[I]n case an officer shall qualify out of the County in which he resides, an official copy of his oath shall be filed and recorded in the Clerk's office of the Circuit Court of the County in which he may reside."); 46 Opinions of the Attorney General 60, 61 (1961) ("We are advised that Judge Henderson qualified for office on the 12th day of December, 1946, by accepting his commission of office and taking the prescribed oath.").

III
Conclusion

In sum, then, "when an incumbent judge is defeated in November, he is authorized to hold over until the election victor takes the oath". 60 Opinions of the Attorney General 407, 410 (1975). This result, mandated by the express language of Article IV, §5 of the Constitution, necessarily prevails over the more limited language contained in the Governor's Commission to you of November 20, 1981. Cf. 43 Opinions of the Attorney General 213, 216 (1958) (judicial commission "should be revised" to conform to constitutional requisites).

Thus, we conclude that you may continue to hold office until your successor is elected at the general election in November, and, thereafter, until that successor qualifies by taking the requisite oath of office.

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

Editor's Note: The preceding Opinion was originally written as a letter of advice. It is published here, in a slightly revised format, because of the general guidance provided.