In this action we are asked to determine the validity and effect of Section 20-1-7.7(6)(2) of the Utah Code Annotated, which provides in relevant part:
(6) In cases where one or more members of the bar have filed a declaration of candidacy against a justice or judge who has filed a declaration of candidacy, then . . .
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(2) if one or more candidates die, resign or become disqualified prior to the general election leaving only one candidate remaining, such candidate shall be issued a certificate of election to serve until the next general election at which time such candidate shall, if he desires to retain such office, file and run for the unexpired term of such office in the manner provided in this section . . .
The district court declared 20-1-7.7(6)(2) unconstitutional, enjoined the Salt Lake, Tooele and Summit County Clerks from placing Homer F. Wilkinson's name on the election ballot, enjoined defendant Monson from issuing a certificate of election to Wilkinson, and declared that a vacancy exists in the office of Third District Judge, which should be filled by appointment of the Governor pursuant to 20-1-7.1. We affirm in part and reverse in part. All statutory references are to Utah Code Annotated, 1953 as amended.
The facts giving rise to this proceeding are as follows: Pursuant to 20-1-7.7(2), incumbent Third District Judge Marcellus K. Snow filed a declaration of candidacy seeking re-election to his office for an additional six year term. Thereafter, Homer F. Wilkinson filed a declaration of candidacy against Judge Snow, pursuant to 20-1-7.7(3). After the period for filing had elapsed, Judge Snow died, leaving Mr. Wilkinson as the only candidate. Governor Scott M. Matheson, whose duty it is to appoint persons to fill judicial vacancies, brought this action for declaratory relief. It is his position the above-quoted provision is unconstitutional under Article VIII, Section 3 of the Constitution of Utah, which is as follows:
Judges of the Supreme Court and district courts shall be selected for such terms and in such manner as shall be provided by law, provided, however, that selection shall be based solely upon consideration of fitness of office without regard to any partisan political considerations and free from influence of any person whomsoever, and provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law.
The above section of the Constitution was adopted as an amendment in 1945. It clearly distinguishes two methods by which one can become a judge, viz., selection and election.
The purpose of the amendment is twofold: first, it requires the removal of partisan politics from any selection method adopted, demanding instead that the sole consideration be "fitness for office," and second, it insures a method of election be retained "until changed by law." There is no doubt the Legislature is empowered under the amendment to enact laws providing orderly steps to judicial office under both methods.
In 1967, the Legislature provided just such steps by enacting 20-1-7.1 through *Page 149 20-1-7.9. This act created judicial nominating commissions which facilitate the non-partisan selection of judges by selecting three persons based upon "fitness for office," and recommending their names to the governor. One of these three persons is then appointed by the governor as judge. In addition, the act continues to provide a method of election, by allowing a qualified member of the bar to file a declaration of candidacy against an incumbent judge whose term is about to expire. If no one files against such an incumbent, his name appears on the ballot for a yes-no vote.
20-1-7.7(6)(2) states if one or more candidates die, resign, or become disqualified before the election, leaving only one candidate, that person shall be issued a certificate ofelection. The person must then file his candidacy and run for the unexpired term of the office at the next general election, unless the person is the incumbent judge holding office pursuant to election, in which case the certificate of election is for the term of office.
The Legislature is clearly and expressly empowered by Article VIII, Section 3 of the Constitution to modify the method of electing judges in effect when the amendment was adopted; viewed in this light, 20-1-7.7(6)(2) is a legitimate statutory provision focusing upon a possible albeit rare contingency in the process of electing judges. We perceive 20-1-7.7(6)(2) to mean that, upon the death, resignation or disqualification of a candidate, leaving only one candidate eligible for the office, that candidate shall forthwith be issued a certificate of election, and shall be sworn in as the judge. This provision is, in our minds, a logical and constitutionally proper method to avoid a hiatus in the law which would otherwise occur. If such a candidate had to stand for election, there would be a period, lasting perhaps up to six months, in which there would be no functioning judge. On the other hand, if a judge were selected through the judicial nominating commission, one who had filed and intended to run for office would be unfairly deprived of the opportunity simply by the untimely death of his opponent. By providing for the immediate issuance of the certificate to the lone candidate, the Legislature has avoided both problems in a manner not in conflict with our Constitution. The person so installed as judge is still subject to the election process because he must file and run for office at the next general election, where he must face either an opponent or a yes-no vote.
We hold that 20-1-7.7(6)(2) is constitutional, it being part of a statutory scheme logically providing for a method of electing judges under the express authority of Art. VIII, Sec. 3 of the Constitution of Utah. The district court was correct in prohibiting the placement of Mr. Wilkinson's name on the election ballot. In all other aspects, the court is reversed, and the Lieutenant Governor is ordered to issue a certificate of election to Homer F. Wilkinson.