DOJ: News Release

McGrath: Appointee to City Judge Position Serves Remainder of Current Term

HELENA – In an opinion released today, Montana Attorney General Mike McGrath held that when someone is appointed to fill a vacancy in the office of city judge, he or she serves the remainder of the prior judge’s term.

Livingston City Attorney Bruce Becker requested the opinion, asking whether someone appointed to a city judge position is subject to election at the next city general election, or whether he or she serves the remainder of the previous judge’s term.

The opinion analyzed two parts of Montana law. Under an older, more general statute, when a municipal elective office is filled by appointment, it is “subject to nomination and election at the next general municipal election.”

A section enacted in 1977, however, is specific to the office of city judge. That statute provides that when a city judge position is filled by appointment, the appointee shall “serve the remainder of the term.”

McGrath’s opinion notes that Montana law provides that when a general provision and specific one conflict, “a particular intent will control a general one.”

McGrath held that “the legislature intended to provide for a procedure for filling any vacancy that might arise in the office of city judge in a commission-manager municipality. It did so knowing that a more general vacancy statute already existed in Montana law.”

Opinions of the attorney general carry the weight of law unless a court overturns them or the Legislature modifies the laws involved.

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