I respectfully dissent.
The applicable constitutional provision in need of construction reads 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 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.1
Amended in 1945, this present section specifically eliminated partisan selection of judges and substituted in lieu thereof a requirement for selection based upon merit and fitness.
The fact that the requirement of selection "be based solely upon consideration of fitness for office" is mandatory is clearly borne out by a further constitutional provision which specifically so provides as follows:
The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.2
In keeping with the constitutional authority set forth in said Article VIII, Section 3, as amended, the Utah Legislature established by statutory enactment two exclusive methods of selecting judges on a non-partisan basis. In doing so, they adopted what has been referred to as a modified "Missouri Plan."3 Certain of our sister states have adopted the true "Missouri Plan" which basically provides for an initial appointment on the basis of merit and fitness from a list of three nominees presented to the Governor by a judicial selection commission. At the end of the appointive term the appointee simply runs "on his record" on a Yes () No () ballot, would-be challengers being prohibited from filing as candidates against him. Other states have retained the wide open direct election process, some partisan and some non-partisan, which allows any and all challengers to file against the incumbent. *Page 154
As indicated supra, Utah has two exclusive methods of selecting judges. The first such method of selection is provided for by gubernatorial appointment in the manner as set forth in U.C.A., 1953, 20-1-7.6 which reads in pertinent part as follows:
20-1-7.6 When judicial nominating commissions convene — Notice — Certification to governor of nominees — Meetings to investigate prospective candidates — Appointment by governor or chief justice — Term of office of appointee. — (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. . . .
(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. [Emphasis added.]
The second method of selection is provided for by election in the manner as set forth in U.C.A., 1953, 20-1-7.7 which reads in pertinent part as follows:
20-1-7.7 Election following appointment to judicial office — Declaration of candidacy by appointee — By members of bar — Certification of candidates to county clerks — Determination of winners. — (1) Any justice of the Supreme Court or judge of any district court who holds office under appointment by the governor shall hold the office until he or his successor is elected and qualified, which election shall take place at the general election next succeeding the appointment, except that if the appointment is made subsequent to the last date such appointee may file a declaration of candidacy, the election shall take place at the general election following the one which next succeeds the appointment. The person so elected shall hold the office for the remainder of any unexpired term. If the appointee desires to retain such office, he shall file a declaration of candidacy with and pay a filing fee of $50 to the secretary of state during the month of June prior to such general election.
(2) Any incumbent justice of the Supreme Court or judge of any district court who holds office pursuant to election and whose term of office expires in January next following a general election may, if he desires to retain such office, file a declaration of candidacy with and pay a filing fee of $50 to the secretary of state during the month of June prior to such general election.
(3) If a declaration of candidacy is so filed by any such justice or judge, any qualified member of the bar desiring to become a candidate for such office may also file a declaration of candidacy with and pay a filing fee of $50 to the secretary of state prior to 5:00 p.m. on the second Friday of July prior to such general election, which declaration shall specify the justice or judge against whom the declarant is a candidate . . .
* * * * * *
*Page 155(5) If no member of the bar has filed a declaration of candidacy for such office, then at the general election the ballots shall contain as to each justice of the Supreme Court or judge of a district court, to be voted on in said county the following question: Shall (name of justice or judge) be retained in the office, of (name of office, such as `Justice of the Supreme Court of Utah' or `Judge of the District Court of the Third Judicial District')? Yes () No ().
(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 (1) if all such candidates die, resign or become disqualified prior to the general election, a vacancy shall occur in such office and such vacancy shall be filled in the manner provided in section 20-1-7.6, (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, except that if the candidate holds office pursuant to election and is a candidate to succeed himself in office, he shall be issued a certificate of election for the term of office provided by law . . . [Emphasis added.]
Turning now to the basic constitutional question before us, the fact that our unique "modified Missouri Plan" permits the selection of a judge by the electorate as well as by gubernatorial appointment does not render it constitutionally infirm. The terms "select" and "elect" are substantially, if not wholly, synonymous when viewed in the context of the subject matter of this case. Webster4 defines "elect" as: chosen especially by preference or for excellence; carefully selected; to make a selection of; and defines "select" as: chosen from a number or group by fitness or preference.
The fact that the voters may elect a judge is not to be taken as less than a "selection" as is required by the Constitution. When a candidate, otherwise qualified, sees fit to challenge one who has been previously appointed on the basis of merit and fitness, simple logic dictates that the electorate stands in an excellent position to compare the basic qualities of merit and fitness of the respective candidates with those of the incumbent and thereafter exercise their choice or selection. It is not to be said that an informed electorate is any the less capable of making a constitutional selection of a judge, "based solely upon consideration of fitness for office without regard to any partisan political considerations," than is the Governor.
Article I, Section 2, of the Constitution of Utah provides in part that "[a]ll political power is inherent in the people . . ." and this Court most recently observed that both Constitutional and statutory provisions currently in effect mandate that members of the judiciary present themselves to the electorate for approval whether after appointment or by declaration as a candidate.5
In light of the foregoing, the provisions of subsection (6) of U.C.A., 1953, 20-1-7.7 set forth above need close scrutiny. That subsection dictates the issuance of a certificate of election to a sole surviving candidate and thus would permit one to occupy judicial office without the benefit of selection either byappointment or election. Not only does that provision circumvent the mandate of the Constitution but it also runs directly and irreconcilably counter to said U.C.A., 1953, 20-1-7.6(6), supra, which provides for the filling of judicial vacancies by gubernatorial appointment.
Wilkinson contends by way of his demand for alternative relief, that this Court could place him in compliance with the foregoing Constitutional and statutory provisions by declaring that his name should appear alone on the ballot in a "Yes () No ()" context. However, that contention is without merit since there is absolutely no such provision in the law as now constituted and we so ruled in our minute entry in this matter dated October 12, 1978.
Given the high degree of accountability that all constitutional officers generally have to the electorate, it can only be viewed as constitutionally sound for the Legislature to afford the electorate with an opportunity to either confirm a judge's appointment or to elect a new one of their choice. *Page 156 Constitutional compliance is clearly achieved by a "selection" by the electorate. To construe the Constitution otherwise would be to deprive the electorate of its choice in candidates which has been afforded by the Legislature in a valid exercise of its powers.
A further statutory provision6 reads in part as follows: "If any provisions of this act . . . is held invalid, the remainder of the act shall not be affected thereby." Consequently, a declaration of unconstitutionality of that portion of the act which provides for the issuance of a certificate of election without there having been in fact an election, would in no way invalidate the remaining portion of the act.
There being in fact a vacancy occasioned by the death of Judge Marcellus K. Snow, I would affirm the trial court and require said vacancy to be filled by appointment pursuant to the provisions of U.C.A., 1953, 20-1-7.6.