dissenting:
The majority opinion states:
“While it is true in a general sense that Montana has an elected judiciary, all persons serving as judges and exercising judicial functions are not elected by the people by popular vote.”
The majority opinion then cites examples of judges having limited jurisdiction such as water judges and workers’ compensation judges. While it is true that there are examples of judges with limited jurisdiction not being elected, there are no examples of general jurisdiction judges who do not have to face the voters.
All Supreme Court justices and district court judges in Montana are elected unless appointed to fill a vacancy. If appointed, then that appointee must appear on the ballot at the next election following confirmation.
The eifect of the majority opinion is to create an appointed judiciary which will co-exist with an elected judiciary. The pool of former judges in retirement continues to grow and before too many years may equal in number the judges in active service. The result will be that hundreds of Montanans will have their case decided by one who is not a judge at all. The majority has determined that to qualify to serve as a judge by appointment one need only have a vested interest in the judicial pension fund. Therefore, one who enters the judiciary at thirty-five years of age and serves one six-year term qualifies for judicial service for the balance of his or her life. Such a person may serve by appointment of the Chief Justice for thirty years without ever facing voter rejection.
In my opinion there is no support for this approach in the *364Constitution. The majority relies upon Article VII, Section 6(3), Mont. Const, which provides:
“The Chief Justice may, upon request of the district judge, assign district judges and other judges for temporary service from one district to another, and from one county to another.”
The majority interprets the phrase “other judges” to include former judges in retirement. Former judges are not judges.
The majority opinion states:
“As a practical matter, if they intended to bar retired judges from being called in for temporary service to clean up the congestion, where would the ‘other judges’ come from? No answer has been advanced and we know of none.”
The majority apparently has not listened to the views of the minority in this case. This author thinks the term “other judges” found in the Constitution refers to active judges other than district court judges. Article VII, Section 6(3), Mont. Const., cited above, states that the Chief Justice may assign district judges for temporary service in districts other than those from which they are elected and may assign “other judges” from one county to another. This would mean that if there is congestion in certain justice courts that upon the request of a district judge, the Chief Justice can assign a justice of the peace to serve in a county other than the one from which that justice of the peace was elected. For example, if the justice of the peace court in Helena (Lewis and Clark County) was extremely congested, Judge Gordon Bennett could request the Chief Justice to assign a justice of the peace from the Townsend (Broadwater County) for temporary service in Helena. This is the clear meaning of the constitutional provision.
The majority has engaged in a strained construction to achieve a result. There are congested district court dockets in Montana and to solve the problem the majority of this Court decided to transform former judges into active judges by appointment. While this may be a practical solution to a *365problem it clearly frustrates the mandate of the people of Montana to have an elected judiciary. Furthermore, in order to achieve the result the majority has rewritten a constitutional provision and, in doing so, have violated well-established rules of constitutional construction.
As a matter of policy I may wish to see the problem of court congestion resolved. However, the problem should properly be left to the Legislature.