When a Virginia constitutional officer dies or resigns and the highest-ranking deputy takes over until a special election, does the deputy have to live in the locality?

Plain-English summary

The Newport News Circuit Court Clerk asked the AG to revisit a 2003 opinion that had said the highest-ranking deputy who steps into a vacant constitutional office (clerk, sheriff, commissioner of the revenue, treasurer, commonwealth's attorney) under the automatic-succession statute had to be a resident of the locality. That requirement caused problems in practice: most deputies of clerks of court, in particular, live in adjoining counties, and applying a residency requirement to automatic succession meant offices could be left scrambling for an interim leader during the gap between a vacancy and the special election.

AG Herring reviewed the question and overruled the 2003 opinion. Three reasons.

The succession statute itself has no residency requirement, and the legislature knew when it enacted it that deputies are exempt. Before 2000, vacancies in constitutional offices were filled by judicial appointment, which required a 30-day residency in the locality. The 2000 General Assembly added § 24.2-228.1, which accelerated the special election and provided that, before the election, the powers of the office would automatically vest in the highest-ranking deputy by operation of law. At the time, § 15.2-1525(B) already expressly provided that nonelected deputies of constitutional officers "shall not be required to reside in the jurisdiction in which they are appointed." If the legislature had wanted automatic succession to be subject to residency, it could have written that in. It did not. By contrast, the residency requirement for judicial appointments to fill vacancies (in § 15.2-1525(A)) was preserved. The contrast is deliberate.

The constitutional residency requirement does not apply to automatic succession because the deputy does not "hold" the office. Article II, § 5 of the Virginia Constitution conditions residency requirements on a person who is "holding" an office. The succession statute uses different language: the deputy "shall be vested with the powers and shall perform all of the duties of the office, and shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers, until the qualified voters fill the vacancy by election." Compare that to the statutes governing other vacancy fills, where the appointee "shall hold office." The General Assembly chose the powers-and-duties construction for automatic succession instead of the holds-office construction, signaling that the temporary exercise is not the constitutional "holding."

Similar interim arrangements in Virginia law also bypass residency. A General Assembly member who is redistricted out of their district keeps the seat for the rest of the term. A locally elected official in the same situation also serves out the term under § 24.2-304.6. Governor's appointees serve before General Assembly confirmation under Article V, §§ 10 and 11. State board members continue past their terms until successors are appointed. The pattern is consistent: interim or transitional service is treated differently from final, election-conferred holding.

The 2003 AG opinion (2003 Op. Va. Att'y Gen. 104), which had reached the opposite conclusion, is expressly overruled.

Currency note

This opinion was issued in 2014. 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.

Section 24.2-228.1, the deputy statutes in § 15.2-1525, and the vacancy-special-election statutes in § 24.2-682 have all been amended since 2014. Any office handling a real-time succession question today should consult the current text and any later AG opinions in this area.

Common questions

Which offices are "local constitutional offices"?
Article VII, § 4 of the Virginia Constitution identifies them: clerk of the circuit court, sheriff, attorney for the Commonwealth (commonwealth's attorney), commissioner of the revenue, and treasurer. Some localities have consolidated some offices.

What happens when a constitutional officer dies, resigns, or otherwise leaves office?
Section 24.2-228.1(A) requires a writ of election to be issued within 15 days, and § 24.2-682 requires the special election to be held "promptly." In the meantime, § 24.2-228.1(B) automatically vests the powers of the office in the highest-ranking deputy. The deputy stays in that role until the special election is held and the elected officer qualifies.

What if there is no deputy?
Section 24.2-228.1 provides that when there is no deputy, or when the deputy declines to serve, the vacancy is filled by judicial appointment until the special election. The judicial appointee is subject to the 30-day residency requirement in § 15.2-1525(A).

Does this opinion mean a non-resident can be elected to the office in the special election?
No. The opinion is specifically about the interim period of automatic succession. The constitutional residency requirement (Article II, § 5) and statutory voter-qualification requirements still apply to the special election itself. The deputy who is exercising powers under automatic succession may or may not be eligible to run.

What happened to the 2003 opinion?
2003 Op. Va. Att'y Gen. 104 had read the residency requirement to apply to automatic succession. This 2014 opinion expressly overrules it. The 2003 opinion should no longer be cited as authority for that proposition.

What if the deputy moves out of the locality during the interim period?
Since no residency requirement applies to the interim succession, the deputy's residency does not change the analysis. The deputy continues exercising the powers until the special election.

Does the State Compensation Board pay the deputy as an officer?
Yes; the succession statute provides that the deputy "shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers," and the SCB Policy & Procedure Manual for Constitutional Officers reflects that compensation rules apply during automatic succession.

Background and statutory framework

• Va. Const. art. II, § 5: Residency qualification for persons "holding" elective state or local office.
• Va. Const. art. VII, § 4: Identifies local constitutional offices.
• Va. Code § 15.2-1525(A): 30-day residency requirement for judicial appointments to fill constitutional vacancies.
• Va. Code § 15.2-1525(B): Express exemption of deputies from residency requirement.
• Va. Code § 24.2-228.1: Automatic succession of highest-ranking deputy to vacant constitutional office; if no deputy, judicial appointment.
• Va. Code § 24.2-682: Special elections for constitutional vacancies to be held promptly.

The interpretive moves:

• The legislature knew deputies were exempt from residency when it enacted § 24.2-228.1 in 2000.
• It chose not to add a residency requirement to automatic succession.
• The statute's "vested with powers" language is distinct from the "shall hold office" language used elsewhere.
• The constitutional residency requirement triggers on "holding," not on temporary exercise of powers.
• Other Virginia transition mechanisms (redistricting carve-outs, pre-confirmation appointments) similarly bypass residency.

Citations

• Va. Const. art. II, §§ 1, 5
• Va. Const. art. IV, § 4
• Va. Const. art. V, §§ 10, 11
• Va. Const. art. VII, § 4
• Va. Code § 15.2-1525
• Va. Code § 24.2-221
• Va. Code § 24.2-226(A)
• Va. Code § 24.2-228.1
• Va. Code § 24.2-304.6
• Va. Code § 24.2-311(A)
• Va. Code § 24.2-682
• 2000 Va. Acts ch. 787
• 1984 Va. Acts ch. 711
• Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• City of Albemarle v. Camirand, 285 Va. 420, 738 S.E.2d 904 (2013)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
• 2003 Op. Va. Att'y Gen. 104 (overruled)
• 2001 Op. Va. Att'y Gen. 34
• 1981-82 Op. Va. Att'y Gen. 324
• 1991 Op. Va. Att'y Gen. 159
• 2013 Op. Va. Att'y Gen. 220

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-045_Davis.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 13, 2014

The Honorable Rex A. Davis
Clerk of Court
Newport News Circuit Court
2500 Washington Avenue
Newport News, Virginia 23607

Dear Mr. Davis:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

Where a constitutional office becomes vacant and the highest ranking deputy of that office temporarily assumes the powers of the office by operation of law pursuant to § 24.2-228.1(B), you inquire whether the residency requirement imposed upon elected and appointed constitutional officers applies to the deputy.[1]

Response

It is my opinion that, when the powers of a vacant constitutional office are assumed by the highest ranking deputy within the office as provided by § 24.2-228.1(B), the deputy need not be a resident of the locality of service.

Applicable Law and Discussion

Prior to the year 2000, vacancies in constitutional offices were filled, on a temporary or interim basis only, by judicial appointment until a special election could be held,[2] and there was a residency requirement: the appointee had to have resided in the locality of service for at least thirty days prior to appointment.[3] This residency requirement for judicial appointments remains in effect.

In 2000, the General Assembly enacted § 24.2-228.1, which provides a different procedure for filling vacancies in local constitutional offices.[4] The current procedure accelerates the special election,[5] and, by operation of law, without judicial appointment, vests the powers of the office in the highest ranking deputy until the special election can be held.[6] The vacancy is filled by judicial appointment only if there is no deputy, or if the deputy declines to serve.

At the time this automatic succession statute was enacted, it was unmistakably clear that deputies of constitutional officers were not subject to a residency requirement: § 15.2-1525(B), as in effect at the time and now, expressly provides that the nonelected deputies of constitutional officers "shall not be required to reside in the jurisdiction in which they are appointed."[7]

It is thus clear beyond reasonable debate that at the time of enacting the automatic succession statute, § 24.2-228.1, the General Assembly was aware that there was no residency requirement for deputies. Had the General Assembly intended to make automatic succession subject to residency, it could have easily included such a requirement in the statute. It did not do so. We assume that the legislature chose, with care, the words it used when it enacted the relevant statute.[8] When construing a statute, the primary objective is "to ascertain and give effect to legislative intent," as expressed by the language of the statute.[9]

In notable contrast, the General Assembly maintained a residency requirement for judicial appointments to fill constitutional vacancies.[10] The significance of an explicit statutory residency for interim judicial appointments to fill constitutional vacancies and the absence of such a requirement for automatic succession cannot be ignored. The plain language of a statute should be applied unless doing so creates an absurd result.[11] I therefore must conclude that the legislative intent in enacting this statute was that automatic succession, for a brief period of time until a prompt special election occurs, is not subject to a residency requirement. This conclusion is consistent with the apparent purpose of the statute, which is to ensure continuous competent leadership of constitutional offices in the event of vacancies.

The question then becomes whether the Constitution of Virginia requires a different interpretation of § 24.2-228.1. I note that statutes are presumed to be constitutional,[12] and the Supreme Court will give the Constitution a liberal construction in order to sustain an enactment, if practicable.[13]

Article II, § 5 of the Constitution of Virginia establishes a residency requirement for constitutional officers:

The only qualification to hold any office of the Commonwealth or of its governmental units, elective by the people, shall be that a person must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office . . . .

To be qualified to vote for an elective office, a voter must reside within the territorial jurisdiction served by that office.[14] The precise question, then, is whether a person who assumes the powers of a constitutional office by operation of law on an interim basis, and without election or appointment, "holds" that office.

The language of § 24.2-228.1 suggests that automatic succession is not intended to be the same as officially "holding" an office by election or appointment. Section 24.2-228.1 expressly states that

The highest ranking deputy officer . . . if there is such a deputy or assistant in the office, shall be vested with the powers and shall perform all of the duties of the office, and shall be entitled to all the privileges and protections afforded by law to elected or appointed constitutional officers, until the qualified voters fill the vacancy by election and the person so elected has qualified and taken the oath of office.

The statute does not provide that the deputy shall "become" the constitutional officer, nor that he shall "hold" the constitutional office.[15] Instead, it states that he shall have the powers, perform the duties, and be entitled to the privileges "afforded by law to . . . constitutional officers . . . ."[16] This is an important distinction. The deputy does not "hold . . . [an] office . . . elective by the people," as contemplated by Article II, § 5. Instead, the deputy is authorized, on a temporary basis, to exercise the powers, duties, and privileges of the office.

Finally, there are similar situations where there are legal requirements for holding office, but where those requirements are inapplicable in certain temporary or interim situations. With respect to the constitutional residency requirement, members of the General Assembly, who otherwise would lose their offices for failure to remain residents of their districts,[17] do not forfeit their positions when redistricting results in the official no longer living in the district. Instead, they are able to complete the term to which they were elected.[18] The same is true for local elected officials.[19] Additionally, administrative officers appointed by the Governor who are subject to General Assembly confirmation serve prior to confirmation, until confirmation is either granted or denied.[20] Finally, I also note that a person appointed to a state board or commission or a regional authority for a fixed term remains in office after the conclusion of his term until his successor is appointed.[21]

Conclusion

Accordingly, it is my opinion that, when the powers of a vacant constitutional office are assumed by the highest ranking deputy officer within the office, as provided by § 24.2-228.1, the deputy officer need not be a resident of the locality of service.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] You specifically ask for a review of a 2003 Opinion of this Office that concludes that there is a residency requirement for automatic succession under § 24.2-228.1. 2003 Op. Va. Att'y Gen. 104. Based on the analysis set forth herein, the 2003 Opinion is expressly overruled.

[2] See 2000 Va. Acts ch. 787.

[3] Va. Code Ann. § 15.2-1525(A) (2012).

[4] See Va. Const. art. VII, § 4 (identifying which offices are local constitutional offices).

[5] Va. Code Ann. § 24.2-228.1(A) (2011) requires a writ of election to be issued "within fifteen days of the occurrence of the vacancy," and a companion statute, § 24.2-682, requires that special elections to fill vacancies in constitutional offices be held "promptly."

[6] Section 15.2-1525(A).

[7] Until 1984, there was a residency requirement for deputies. See 1984 Va. Acts ch. 711 (replacing the original language of former § 15.1-51, which imposed a residency requirement on the nonelected deputies of constitutional officers, with language exempting such deputies from the residency requirement applicable to constitutional officers).

[8] Alger v. Commonwealth, 267 Va. 255, 261, 590 S.E.2d 563 (2004).

[9] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)).

[10] Section 15.2-1525(A).

[11] City of Albemarle v. Camirand, 285 Va. 420, 424, 738 S.E.2d 904, 906 (2013).

[12] Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008).

[13] Id., 275 Va. at 428, 657 S.E.2d at 75.

[14] See Va. Const. art. II, § 1.

[15] Compare § 24.2-228.1 with §§ 24.2-226(A) (Supp. 2014) and 24.2-221 (2011) (providing that persons elected or appointed to fill vacancies in local elective offices other than constitutional offices "shall hold office" for the duration of their permitted service).

[16] Entitlement to the privileges of office include receiving approved compensation for the position. See State Compensation Board, Policy & Procedure: A Manual for Constitutional Officers at 50 (2011), available at http://www.scb.virginia.gov/policy/FYI/General.pdf.

[17] "A senator or delegate who moves his residence from the district for which he is elected shall thereby vacate the office." Va. Const. art. IV, § 4.

[18] Va. Code Ann. § 24.2-311(A) (Supp. 2014). See also 2001 Op. Va. Att'y Gen. 34.

[19] Va. Code Ann. § 24.2-304.6 (2011). See 1981-82 Op. Va. Att'y Gen. 324; 1991 Op. Va. Att'y Gen. 159 (same conclusion for school board members).

[20] Va. Const. art. V, §§ 10, 11.

[21] 2013 Op. Va. Att'y Gen. 220.