When the Maine Governor fills a vacancy in a county Register of Deeds office by appointment, does the appointee have to be from the same political party as the vacating officer?

Plain-English summary

Governor John R. McKernan, Jr., asked AG James E. Tierney whether his power to fill a vacancy in a county Register of Deeds office was constrained by the political affiliation of the officer who had vacated the seat. The Governor was preparing to make an interim appointment that would hold the office until the next November election, the timing prescribed by 33 M.R.S.A. § 601. Tierney's answer was that no party constraint applied. The Governor was free to appoint a person of any political party.

The reasoning turned on close reading of the operative statute. Section 601 says that Register of Deeds vacancies "shall be filled for the unexpired term by election as provided for in section 602 at the next November election after their occurrence. In the meantime, the Governor may fill vacancies by appointment, and the person so appointed shall hold his office until the first day of January, next after the election last mentioned. Until a vacancy is filled by appointment by the Governor, the Deputy Register shall serve as acting register as provided in section 605." Nothing in that text imposed any party-affiliation requirement on the Governor's interim appointee.

Tierney then sharpened the point by contrast. Other Maine statutes explicitly require same-party appointments when the Governor fills a vacancy. The clearest comparator was 30-A M.R.S.A. § 63, which directs that a Governor filling a County Commissioner vacancy must appoint "an enrolled member of the same political party as the Commissioner whose term was vacant." The Legislature knew how to write a party constraint when it wanted one. The absence of that language in § 601 was meaningful: the omission reflected a deliberate legislative choice, not an oversight.

The result was a clear field for the Governor's appointment power. The interim Register would serve until the first day of January following the next November election, at which point an elected officeholder would take over for the remainder of the unexpired term. In the meantime, the Governor's discretion was bounded only by general appointment law, not by any party-affiliation test.

Currency note

This opinion was issued in 1989. 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 did the political party of the previous Register matter as a question at all?

Some Maine statutes that authorize gubernatorial vacancy appointments require the appointee to come from the same party as the officer who vacated the seat. The Governor's office wanted to know whether that pattern applied to Register of Deeds vacancies before making the appointment.

Did 33 M.R.S.A. § 601 impose any party constraint?

No. The statute set the timing of the interim appointment and the date on which the elected successor would take office, but it said nothing about party affiliation.

What was the contrast with the County Commissioner vacancy statute?

30-A M.R.S.A. § 63 expressly required the Governor to appoint an enrolled member of the same political party as the vacating Commissioner. Tierney used that contrast to confirm that the Legislature drafts party constraints expressly when it wants them. The silence in § 601 was deliberate.

Could the Deputy Register run the office until the Governor acted?

Yes. 33 M.R.S.A. § 605 made the Deputy Register the acting register "until a vacancy is filled by appointment by the Governor." There was no gap in coverage between the vacating officer and the Governor's appointee.

How long would the Governor's appointee serve?

The appointee would hold the office until the first day of January following the next November election. The next regularly scheduled November election would fill the remainder of the unexpired term.

Background and statutory framework

The Register of Deeds is a county-level office in Maine, with the holder elected by the voters of the county. When a vacancy occurs, 33 M.R.S.A. § 601 routes the filling of the office through two stages: an immediate gubernatorial appointment to serve until the first January after the next November election, and an election under 33 M.R.S.A. § 602 to fill the unexpired term. § 605 provides for the Deputy Register to serve as acting register during any gap before the gubernatorial appointment lands. The Legislature has imposed same-party restrictions on some other gubernatorial vacancy appointments (notably § 63 of Title 30-A for County Commissioners) but not on Registers of Deeds. The AG opinion fixed that distinction.

Citations

• 33 M.R.S.A. § 601
• 33 M.R.S.A. § 602
• 33 M.R.S.A. § 605
• 30-A M.R.S.A. § 63

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1989/ag_19890320.pdf

Original opinion text

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

89-3

JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL

March 20, 1989

Honorable John R. McKernan, Jr.
Governor of Maine
State House Station #1
Augusta, Maine 04333

Dear Governor McKernan:

I am writing in response to the inquiry from your office as to whether there is any restriction with regard to political party concerning your power to fill a vacancy in the office of Register of Deeds by appointment until that office may be filled by election. For the reasons which follow, it is the Opinion of this Department that there are no such restrictions, and that you may fill the office with a person of any political party.

The filling of vacancies in the office of Register of Deeds is governed by 33 M.R.S.A. § 601, which provides as follows:

Vacancies shall be filled for the unexpired term by election as provided for in section 602 at the next November election after their occurrence. In the meantime, the Governor may fill vacancies by appointment, and the person so appointed shall hold his office until the first day of January, next after the election last mentioned. Until a vacancy is filled by appointment by the Governor, the Deputy Register shall serve as acting register as provided in section 605.

This section, therefore, is silent as to whether there is any restriction with regard to political party on the Governor's power to fill vacancies in this particular office. In this regard, the statute is in sharp contrast with others providing for gubernatorial appointments to fill vacancies where the Governor's power is limited to making an appointment of a person of the same political party as the person who vacated the position. See, e.g., 30-A M.R.S.A. § 63 (Governor must fill a vacancy in the office of County Commissioner with an enrolled member of the same political party as the Commissioner whose term was vacant). Thus, it is quite clear that there is no restriction on the Governor's power to make appointments to fill vacancies in the office of Register of Deeds.

I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

JAMES E. TIERNEY
Attorney General

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