March 23, 1982

Ms. Alice Kundert 
Secretary of State 
Capitol Building 
Pierre, South Dakota 57501

Official Opinion No. 82-15

Vacancies in Elective Office, When Subject to Election to Fill Unexpired Term

Dear Ms. Kundert:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

A person elected to a four year term as a county official in 1980 plans to resign in 1982.  SDCL 3-4-6 provides that 'Appointments as herein provided shall be made in writing, and made to continue until the next general election at which the vacancy can be filled, and until a successor is elected and qualified . . .'

In 1982, the deadline for filing nominating petitions for the primary election is April 6.  The primary election is June 1.  The deadline for filing independent nominating petitions is August 3. The general election is November 2.  Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  If a person elected to a four year term as a county official at the general election in 1980 resigns in 1982, what is the latest date he can resign to create a vacancy which can be filled in the 1982 election? 

2.  Does a vacancy exist for the primary election if the resignation is accepted on March 1, 1982, to be effective July 1, 1982? 

3.  If a vacancy occurs after the deadline for filing nominating petitions for the primary election, can it be filled at the general election by  candidates filing as independent candidates? 

4.  What notices are required if the vacancy is not created until after the regular notices of vacancies have been published?

IN RE QUESTION NO. 1:

It is my opinion the latest date someone can resign to create a vacancy which can be filled in the 1982 election is the independent deadline for filing of August 3.

IN RE QUESTION NO. 2:

It is my opinion that a resignation at an effective date does not vacate the office until the date the resignation is effective.

IN RE QUESTION NO. 3:

It is my opinion a vacancy may be filled at general election by candidates filing as independent candidates should the vacancy occur after the deadline for filing nominating petitions at primary election time.

IN RE QUESTION NO. 4:

It is my opinion that if the vacancy is not created until after the regular notices of vacancies have been published (per SDCL § 12-12-1), no notice of deadline for filing for such vacancies need be published.

Respectfully submitted,

Mark V. Meierhenry
Attorney General