AGO 85-06.

• Court: North Dakota

North Dakota Attorney General Opinions 1985. AGO 85-06. OPINION 85-6Date Issued: January 29, 1985 (AGO 85-6) Requested by: Owen L. Anderson, Chairman, North Dakota JudicialNominating Committee Owen K. Mehrer, Stark County State's Attorney - QUESTIONS PRESENTED - Whether a county commission may elect to fill a vacancy in the position of county judge by proceeding in accordance with N.D.C.C. section 44-02-04 after the judicial nominating committee, at the commission's request, has submitted nominees to the commission pursuant to N.D.C.C. section 27-26-03. Whether a county commission, acting under N.D.C.C. section 27-26-04 (1) (b), and finding the second list submitted unacceptable, proceed to appoint pursuant to N.D.C.C. section 44-02-04, thereby considering candidates not recommended by the judicial nominating committee.- ATTORNEY GENERAL'S OPINION - It is my opinion that a county commission may not elect to fill a vacancy in the position of county judge by proceeding in accordance with N.D.C.C. section 44-02-04 after the judicial nominating committee, at the commission's request, has submitted nominees to the commission pursuant to N.D.C.C. section 27-26-03. It is my further opinion that a county commission, acting under N.D.C.C. section 27-26-04 (1) (b), and finding the second list submitted unacceptable, may not proceed to appoint pursuant to N.D.C.C. section 44-02-04 thereby considering candidates not recommended by the judicial nominating committee. - ANALYSES - I. There are two procedures which may be implemented by a board of county commissioners to fill a vacancy in the office of county judge. N.D.C.C. section 27-07.1-03 provides as follows:

27-07.1-03. VACANCIES. Any vacancy in the office of county judge shall be filled by the board of county commissioners pursuant to chapter 27-26, unless the board, by resolution, determines to fill the vacancy in accordance with section 44-02-04.

One procedure to fill a vacancy in the office of county judge is to proceed under the authority of N.D.C.C. section 44-02-04. This statute gives the board of county commissioners the general authority to fill a vacancy in any county office including that of county judge. However, the authority to fill a vacancy in the office of county judge pursuant to N.D.C.C. section 44-02-04 may only be exercised upon the passage of a resolution to...