dissenting.
As discussed below, two important points need to be considered and accepted.
I.
The controversy is wholly moot insofar as proceedings in the state of Idaho judicial system are concerned. The confrontation of elected Judge Maynard with elected district court clerk Crooks should never have happened in the first instance and would for certain appear to have been more of a clash of personalities than a question of dominant authority. Unfortunately, one of the two held an office which carried with it the power to jail for contempt. While the clash was raging, an astute writer for the Lewiston Tribune opined that in the public interest both persons should have resigned from office. Neither did. The electorate of the Second Judicial District attended to the problem in the November 1986 general election at which the people showed a resounding disenchantment, if not disapproval, of such shenanigans. The Second Judicial District comprises counties other than Nez Perce County, and there are and have been forever since statehood elected constitutional court clerks in those other counties, as in all of the state’s 44 counties.
A more civil remedy which Judge Maynard could have sought, if he truly believed the situation intolerable and that the right was with him, would have been to seek an opinion from the Attorney General. It was unbelievable that he would order the sheriff to jail a constitutional officer in almost any conceivable circumstance, but for certain it should not have taken place as a “judicial” resolution to the petty dispute between the judge and the clerk. Both could have gone to the Attorney General, and if finding no satisfactory answer there, an appropriate extraordinary proceeding in this Court should have been filed. In all likelihood, the parties could have been brought to an amicable solution short of requiring a decision. Jailing the county clerk was patently improper and a manifest disrespect for the office — if not the person — of clerk of the court.
As it turned out, this Court’s jurisdiction was invoked — not by the judge seeking a clarification of his power vis-a-vis those of another elected constitutional court officer, *320but by the clerk and her deputy asking that both be freed from unlawful jail incarceration.
Even after this Court issued a writ directing their release, and even after the judge some three weeks later rescinded the contempt order which had jailed the clerk and her deputy, the judge followed up with yet another order which was based wholly on his own perceptions as to what is or is not “established practice.” So pushed, the clerk sought to protect her beliefs in what she considered to be a clerk’s function. This was done under the processes of another extraordinary writ [prohibition] which this court is authorized to issue in proper circumstances as a means of testing, inter alia, the legality of certain proceedings. As clerk, she was within her rights to seek such a writ. Similarly, Judge Maynard, as judge, could have applied to this Court for another extraordinary writ, that of mandate, to seek an order of this Court directing compliance with the views entertained by his office.
This Court received the report of the masters on May 13, 1986, and heard oral argument on November 3, 1986. Before this Court had digested the issues and arguments, both of the litigants had lost their bids for re-election, and their problem was resolved. In my view, all proceedings in this Court should have been dismissed.
In almost one hundred years there had not been another such controversy between two such persons holding two such elected offices, and personally as a boy, a young man, and an admitted attorney — fifty years of active memory — I have known of nothing but mutual cooperation and good will existing between district judges and court clerks.
Accordingly, where I differ from the majority is that I see no reason whatever to “now turn to the real heart of this case.” There have been many cases in Idaho’s judicial history where, for instance, a county commission comprised of three elected officials brings or is brought into litigation, and while it is pending there is a change in personnel, it is proper to substitute in the new commissioners. Similarly, with city councils, state highway commissioners, ad infinitum. But, although sued officials may not have a right to avoid being brought in, suing officials are free to drop the litigation.
Donna Crooks, the individual, had a right to seek her release from confinement, but she no longer has any right to pursue any action at this time in the name of the county clerk, nor does she any longer have a right to sue John H. Maynard as a district judge, which he no longer is.
The only perceivable reason for not dismissing this proceeding would have to be a desire on the part of this Court to use the occasion to go ahead and write what it has now written on a “determination of the respective powers and duties of the administrative district judge and the clerk[s] of the district court[s] of a judicial district. More specifically ... the relative roles of the administrative district judge and the clerk[s] of the district court[s] in respect to the hiring, supervision, and firing of the court clerks.” Majority opinion, p. 5. (In clarification of the opinion for the Court, I suggest that court clerks means deputy clerks who function as aids of the court.)
I agree with the statement that “[o]f course, the best policy is for the clerks and judges to work closely together and cooperate in the hiring process to ensure efficiency and effectiveness in the operation of the district courts and county auditor and recorder offices.” It would be preferable for the Court to say that much and no more. It is much to be doubted that the state’s district court clerks are going to be pleased with a decision that places them, elected constitutional officers, under the direction and control of the Administrative Director of the Courts, a statutory creation.
II.
Since statehood, the legislature has prescribed the duties of an elected clerk of the district court. The majority opinion notes I.C. § 1-1001, and sets it out:
*3211-1001. Duties of clerk. — The clerk of the district court must perform such duties as are prescribed in the Code of Civil Procedure and in the Penal Code, and such duties as may be required of him by the rules and practice of the court.
The majority then declares that both the Code of Civil Procedure and the Penal Code have been superseded by rules of the Supreme Court promulgated “pursuant to its inherent rule-making power,” and cites R.E.W. Construction Co. v. District Court of Third Judicial District, 88 Idaho 426, 400 P.2d 390 (1965). That same case is earlier cited for the proposition that “the legislature does not have the authority to deprive the judicial branch of its power and control over the office [of the clerk].”
Just to keep the record straight, it should be kept in mind that it was the legislature in the first place which, in 1941, made the determination to recognize the inherent power of the Supreme Court “to make rules governing procedure” in the Idaho judicial system. I.C. § 1-212. Section 1-213, a part of the same 1941 enactment, in fact said the Supreme Court shall by general rules prescribe the forms of process, writs, pleadings and motions, the manner of service, time for appearance, and the practice and procedure in all actions and proceedings. But, a caveat is attached at the end of § 1-213: “Said rules shall neither abridge, enlarge nor modify the substantive rights of any litigant.” It may not be incorrect to presume that the primary reason for the Court’s issuance of an opinion today is to preclude the association of district court clerks from asking the legislature to intervene on their behalf — assuming, of course, that the clerks do not readily accept the Court’s decision.