Judge Marcellus K. Snow, incumbent, announced for re-election for a six year term as district judge. Homer F. Wilkinson, a member of the Utah State Bar, announced as an opposing candidate for the office. Thereafter Judge Snow died and the Governor, whose duty it is to appoint judges to office when a vacancy occurs, brought this case to determine whether or not a vacancy in office exists by reason of the death of Judge Snow.
Our statute1 provides as follows:
(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 . . .
Under this statute, if it is valid, Mr. Wilkinson should take the oath of office and serve as a district judge until the general *Page 152 election in November 1980. The question posed, however, is this: Is the statute above set out constitutional?
Originally all judges were elected by vote at the general election held biennially.
On January 1, 1945, our state Constitution2 was amended and ever since then has read as follows:
Sec. 3 [Selection of judges — Method of — Basis of selection.]
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 for 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. (As amended November 7, 1944 effective January 1, 1945.) [Emphasis added.]
It thus appears that a method of selecting judges must be different from that which existed prior to the amendment. If it was intended that a judge could be elected to office from a list of lawyer candidates by the old method of wide-open elections, then the amendment to the Constitution was not needed. The amendment provided that the old method would continue until changed by law. When the old method of election of judges was changed by law it was necessary that the method of selecting must be based solely upon fitness for office.
The method of choosing candidates which complies with the Constitution is provided for in U.C.A., 1953, Sec. 20-1-7.6 which reads:
(a) If a vacancy occurs or is about to occur in the office of a justice of the Supreme Court or a judge of any district court, the chief justice shall, as soon as practicable, convene the appropriate judicial nominating commission for the office to be filled. Not later than 45 days after such notification, such commission shall certify to the governor a list of three persons having the qualifications required by law to fill such office, who are willing to serve and who possess the ability, temperament, training, and experience which fits them for such office as determined by at least a majority of the members of the commission. . . . [Emphasis added.]
(b) The governor shall forthwith appoint one of the three persons named on the list of nominees to fill such office. If the appropriate judicial nominating commission has failed to certify such a list to the governor before the expiration of the 45-day period provided in subsection (a) of this section, the governor may appoint any person who has the qualifications for such office required by law, except a member of such commission.
(c) In the event the governor fails to appoint one of the three persons named on the list within 30 days after he has received the list, the chief justice of the Supreme Court shall forthwith appoint one of the persons named on the list to fill such office.
The part of the statute (20-1-7.7(6)) set out above, insofar as it permits any lawyer to oppose an incumbent judge, seems to me to run counter to Article VIII, Section 3 of our Constitution in that a person may be elected as a judge without beingselected solely "upon consideration of fitness for office."
I do not mean to denigrate the ability of Mr. Wilkinson; I simply say that the statute which permits one to be elected without being selected solely upon consideration of fitness is bad.
The statute3 contains a provision which reads as follows:
*Page 153If any provisions of this act, or the application of any provisions to any persons or circumstances, is held invalid, the remainder of this act shall not be affected thereby.
If we eliminate the unconstitutional part of the statute which permits any lawyer (regardless of fitness for office) to be elected, the remainder of the statute complies with the provisions of the Constitution. The statute then would require every judge to be selected solely upon consideration of fitnessfor office. The public would have the final determination of whether he could retain that office, for he would be required to run (unopposed) at the next general election on a non-partisan ballot which would simply state:
"Shall this judge be retained in office?"
If the majority of votes were to be that he not be retained in office, then the process of selecting a judge based solely upon fitness for office would again be brought into operation. Thus we would always have in office a judge who had been selected solelyupon fitness for the position. The voting public could always remove an incompetent judge who was unacceptable: but could not by vote place an incompetent judge on the bench.
To me, that is what the Constitution requires. I think there is a vacancy on the bench which requires the selection committee to meet and submit to the Governor three names of lawyers who possess the constitutional qualifications for the office. The Governor would then proceed to appoint one of them to fill the vacancy.
This holding would then comply with the Constitution which requires selection to office and does not mention election which was the old way of choosing judges. The amendment demandsselection and prevents election of judges.