(dissenting) — Because the majority ignores the right of the electorate to decide who will be judge and who will not, I respectfully dissent.
Rather than giving the term "retire” its "common, ordinary meaning”, the majority has expanded its meaning to *675include judges who have been effectively terminated by the electorate. To most, the word "retire” generally connotes a voluntary leaving of office or a leave in accordance with mandatory retirement limits. Webster’s dictionary lists definitions to this effect: "to withdraw, go away, or betake oneself’ and "to withdraw from office, a public station, business, occupation, or active duty”. Webster’s Third New International Dictionary 1939 (1986). "Withdraw” is defined as "[t]o disengage or remove (oneself), as from an office”. Webster’s Third New International Dictionary 2626 (1986). Webster’s defines "retired” as "withdrawn from active duty or business”. Webster’s Third New International Dictionary 1939 (1986). The definition the majority cites in support — "to cause to retire” — does not negate this conclusion, arguably implying mandatory retirement. Moreover, Gifts’ law dictionary notes that the term "retire” refers to the "voluntary withdrawal from office, a public station, business, or other employment”. Steven H. Gifis, Law Dictionary 419 (3d ed. 1991). Black’s defines "retirement” as follows: "[Germination of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed, or professional”. Black’s Law Dictionary 1316-17 (6th ed. 1990).
A useful analogy can also be made here to the well-known differences between the terms of "retired” and "terminated” or "discharged” in an employment context. See, e.g., Jacobs v. New Jersey State Hwy. Auth., 54 N.J. 393, 397, 255 A.2d 266 (1969) ("Retirement from employment has a connotation different from discharge. The former ordinarily signifies voluntary withdrawal, the latter compulsory dismissal.”); International Ass’n of Machinists v. Electric Vacuum Cleaner Div., Gen. Elec. Co., 136 N.E.2d 167, 167 (Ohio C.P. 1949) ("In employee-employer relationships, 'retirement’ includes some consent by the employee either at the inception or at some time during the course of . . . employment.”).
Contrary to the majority’s position, Const. art. 4, § 7 (amend. 80)’s legislative history and material in the official *676voters pamphlet do not support the broad meaning of retirement suggested by the majority. The voters pamphlet describes the then current law as preventing a judge leaving office "/or retirement or any other reason” from functioning as a superior court judge without the consent of the parties. (Italics mine.) Official Voters’ Pamphlet 8-9 (1987). However, in explaining how the proposed amendment would operate, the pamphlet only discusses judges leaving for "retirement” and does not suggest that the amendment would ameliorate the then current law applicable when judges leave office for "any other reason”. Amendment 80 itself, as codified, only mentions "retired” judges as well: "[hjowever, if a previously elected judge of the superior court retires leaving a pending case in which the judge has made discretionary rulings, the judge is entitled to hear the pending case as a judge pro tempore without any written agreement”. (Italics mine.) Const. art. 4, § 7 (amend. 80). If the Legislature had wished to extend this provision beyond voluntarily or statutorily retired judges, it could have done so very easily by using either of the terms "leaving office” or "former” to describe the judge. The Legislature did not. Nor did the voters, in passing the proposal, agree upon more than an amendment for judges leaving by reason of retirement.
The circumstances surrounding the amendment’s proposal and passage also suggest a much narrower meaning of "retirement” than the majority assigns the term. The majority notes that the amendment evolved from the circumstances of the judge who had been presiding over a complex case facing an "upcoming, scheduled retirement” which would have required him to get the consent of the parties, any of whom could have withheld consent. Thus, the amendment was built upon the circumstances of a judge retiring by choice or by law and not having been voted out of office.
Stating that a judge’s authority is derived from consent not a general election, the majority claims that its conclusion is in keeping with established pro tempore law because both parties had an opportunity to use an affidavit of prej*677udice against Judge Thomas and neither exercised that option. The majority argues that this evidences the parties’ consent to have Judge Thomas hear the case. However, the majority overlooks the fact that each party is only entitled to one affidavit in one action under RCW 4.12.050 and that the parties may not have used their affidavits for a number of reasons. These include maintaining relations with the few judges in a small county or having already exercised the one allowed affidavit. Moreover, the majority overlooks the fact that the parties are limited to one affidavit of an elected judge but may refuse any number of pro tempore judges. For these reasons, the fact that an affidavit of prejudice is not filed should not be deemed to be consent sufficient to satisfy Const. art. 4, § 7 (amend. 80).
The majority further justifies its holding by arguing that it is in keeping with the efficiency policies behind amendment 80. While I agree that judicial efficiency is important, I cannot agree that these concerns should supersede the fundamental rights of the electorate to choose who shall sit and get paid for sitting on the bench. The majority’s holding will allow a terminated judge to be "construed” back on to the bench for what may be years on the county’s payroll, contrary to the clearly articulated wishes of the electorate.
For the reasons discussed above, I would instead hold that the "common, ordinary meaning” of "retire”, the history and language of amendment 80, and principles of democracy, require that a judge who is voted out of office does not fall within the exception to Const. art. 4, § 7 (amend. 80) and therefore, should not be allowed to act as a judge pro tempore without the parties’ consent.
Durham, J., concurs with Madsen, J.