Committee for an Effective Judiciary v. State

MR. JUSTICE SHEA

delivered the Opinion of the Court.

Petitioners are all registered voters in this state. This Court assumed jurisdiction of petitioners’ original petition for declaratory judgment that we hold Sections 3-1-607 and 3-1-608, MCA, unconstitutional because they conflict with Art. VII, Section 10 of the Montana Constitution. Unless a *107district judge or supreme court justice resigns his office, these statutes prevent a district judge from running for any supreme court position, and they also prevent a justice of the supreme court from running for the position of chief justice. (See Appendices A and B for the full text of these statutes.) Art. VII, Section 10 of our Constitution sets forth two circumstances in which judicial office is forfeited. It provides:

“Any holder of a judicial position forfeits that position by either filing for an elective office other than a judicial position or absenting himself from the state for more than sixty (60) consecutive days.” (Emphasis added.)

Petitioners contend that this constitutional provision clearly authorizes a district judge to file for elective office to the supreme court and a justice of the supreme court to file for the position of chief justice — without resigning from office to do so.

This is an election year and two supreme court positions must face the election process: the office of chief justice, and the office of position number three (3), now occupied by the author of this opinion. The deadline for filing judicial nominations is April 16, 1984. Because of the importance of the question and time exigencies imposed by the nominating deadline, this Court assumed jurisdiction. In our order assuming jurisdiction we asked that the parties file briefs not only on the constitutional questions raised, but also on the question of whether the petitioners have standing to challenge the constitutionality of the statutes.

Although other constitutional issues are raised attacking the statutes, petitioners’ primary contention is that Sections 3-1-607 and 3-1-608, MCA, conflict with Art. VII, Section 10 of our Constitution, and therefore must be voided. In addition to their alleged standing as registered voters, petitioners also allege that standing exists because of: (1) the presence of a district judge (Arthur B. Martin) as one of the petitioners; (2) the presence of seven lawyers as petitioners; and (3) the presence of three petitioners who were *108members of the 1972 Constitutional Convention that drafted and passed Art. VII, Section 10, later ratified by the people of this state as part of their adoption of a new constitution.

Although the State conceded at oral argument that it would be in the public interest to decide the constitutional question on the merits, the State nonetheless steadfastly adhered to its position that no standing exists regardless of the status of petitioners. We need not discuss each of the contentions because we hold that standing, under the facts of this case, exists because the petitioners are registered voters and the statutes involved adversely affect the election process contemplated by the 1972 Montana Constitution. We hold also that Sections 3-1-607 and 3-1-608, MCA, are unconstitutional because they are in direct conflict with Art. VII, Section 10 of the Montana Constitution.

I. STANDING — REGISTERED VOTER

The State argues that a registered voter is not sufficiently affected by the statutes because the statutes do not deprive the voter of his right to vote in the election but merely provide that a district judge or a supreme court justice cannot be one of those candidates for whom the voter can cast his ballot. To create standing in a registered voter, the State argues, three conditions must be met: (1) a sitting district judge or supreme court justice must declare that he would run for another judicial office; (2) the judge must decline to file because of the automatic resignation provisions of Sections 3-1-607 and 3-1-608, MCA; and (3) the voter must declare his intent to vote for that particular person. Absent these conditions, the State argues that the injury to the registered voter is too speculative. Where the public and the electorate were so clearly intended to benefit by a constitutional provision, we hold that a registered voter has standing to assert that public interest by contending that the constitutional provision has been the victim of legislative strangulation.

*109The 1972 constitutional delegates, in considering what is now Art. VII, Section 10, of the judicial article, were primarily motivated by the public interest to be served by permitting district judges to run for the Supreme Court and for a justice of the supreme court to run for chief justice — without having to forfeit their judicial office. The concern of the delegates was not to confer benefits on the judiciary nor on individual members of the judiciary. Rather, their concern was for the health of the judicial system itself — for the public interest.

At the time of the 1972 Constitutional Convention, Section 3-1-607, MCA (formerly Section 93-219, R.C.M. 1947) was in effect, and it appears that the delegates in charge of the judicial article favored a prohibition similar to the statute. The original proposal required district judges and supreme court justices to resign from office if they filed for any elective office other than their own. The original provision submitted to the full convention, provided in part: “Filing for another elective office results in forfeiture of judicial position . . .” (Tr. 1972 Constitutional Convention, Vol. I at 512.) However, several delegates immediately questioned the wisdom of this provision once they learned that it was intended to prevent district judges from running for chief justice — unless they resigned from office. (Tr. 1972 Constitutional Convention, Vol. IV, at 1148-1158.) Several delegates argued that the judicial system would benefit by enabling district court judges and supreme court justices to run for judicial office other than their own without forfeiting their own office. (Tr. 1971 Constitutional Convention, Vol. IV at 1149.) Based on these arguments, the article was amended to reflect that thinking.

The first version of the amendment that was voted on was more precise but longer than the version finally adopted. The first version provided in part that “Filing for another elective public office results in forfeiture of a judicial position, but a judge may file for another judicial position without forfeiture of the judicial position he holds.” (Tr. 1972 *110Montana Constitutional Convention, Vol. IV at 1149.) With no debate this version was voted on and passed by a vote of 88 to 2. This version was then sent to the style and drafting committee for final revision as to form. The final version came out of the style and drafting committee, changed as to form only, and with no further debate on the merits, the delegates voted to adopt this version, which is now part of our 1972 Constitution. The integrity and supremacy of this provision is the basis for the case now before us. It reads:

“Any holder of a judicial position forfeits that position by either filing for an elective office other than a judicial position or absenting himself from the state for more than sixty (60) consecutive days.” (Art. VII, Section 10.)

This constitutional provision was motivated by the belief of the delegates that the public interest would be served by a provision that would permit judges to seek various levels of judicial office through the elective process without first suffering a forfeiture of their own office. We must, therefore, recognize that a public interest exists, apart from the desires of individual district judges or supreme court justices, to assert the integrity and supremacy of this constitutional provision voted on and passed by the delegates and later voted on and ratified by the people of this state. We hold that a registered voter has the standing to make this assertion.

Standing questions cannot often be decided by hard and fast rules because of the varying complexity and importance of questions that come before the courts. We recognized in Stewart v. Board of County Commissioners of Big Horn County (1977), 175 Mont. 197, 573 P.2d 184, that standing questions must be viewed in part in light of “discretionary doctrines aimed at prudently managing judicial review of the legality of public acts . . .” 175 Mont. at 200, 573 P.2d at 186. Where discretion is involved hard and fast rules cannot be the decisive factors. The importance of the question to the public surely is an important factor, and this is why in State ex rel. Sego v. Kirkpatrick (N.M. 1974), 524 *111P.2d 975, the New Mexico Supreme Court recognized that private parties should be granted standing to contest important public issues. The Court said:

“[T]his court in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.” Sego„ supra, 524 P.2d at 979.

The Segó case involved the validity of a partial veto exercised by the governor of New Mexico. The court granted standing to petitioner, as an elector and taxpayer, to contest the legality of the governor’s action. See also State ex rel. Howard v. Oklahoma Corporation Commission (Okla. 1980), 614 P.2d 45, where the Oklahoma Supreme Court, relying in part on the Segó case, looked mostly to private citizen petitioners to grant standing to assert that a state commission had failed to comply with an Oklahoma statute. In Howard, the petitioners sought and obtained a peremptory writ of mandamus compelling the state commission to comply with the Oklahoma statute. Nor should we ignore the rights of citizens to assert the public interest in challenging the legality of legislative action that allegedly flies in the face of our state constitution. That is particularly so where the constitutional provision is intended to benefit the public as a whole rather than classes of individuals — such as judges. The constitutional provision invoked here was not intended to confer special privileges on the judiciary or on individual judges. Rather, it was intended to give the public a potentially broader choice in exercising its constitutional right to vote for judicial candidates.

This Court has been keenly sensitive to the constitutional rights of voters. Although the case is not in point factually or legally, we clearly recognized in Jones v. Judge (1978), 176 Mont. 251, 577 P.2d 846, that a special interest exists in a registered voter whose vote may be denied by legislation. We said:

“The right to vote, however, is a personal and constitutional right. Although stature as an elector will generally *112not allow an individual to bring an action invoking the judicial power, an elector who is denied this right is sufficiently affected to invoke the judicial power to challenge the validity of the Act which denies him the right.” 176 Mont. at 254, 577 P.2d at 848.

In Jones the right of registered voters to vote for judicial candidates was completely denied by operation of the challenged statutes. Here the registered voters would not be completely denied their right to vote for judicial candidates running for the offices that are open to the elective process this year. But the operation of the challenged statutes does deny the voters their right to vote for a class of judicial candidates that allegedly is expressly permitted by Art. VII, Section 10, of our Constitution to be candidates for other judicial offices. Unlike Jones, the registered voters here, in addition to asserting their constitutional right to vote, are asserting the constitutional supremacy of a provision that expressly opens the judicial elective process to all judges who would file for another office — without suffering forfeiture of their own office. At a minimum, the right of registered voters to vote for judicial candidates coming from the ranks of judges, would be diminished. Practically speaking, the right would be effectively denied. Rare is the judicial candidate who would forfeit his judicial office by running for another judicial office.

The constitutional delegates clearly intended the Montana electorate to be the beneficiaries of a judicial elective process permitting all judges to file for other judicial office provided they are otherwise qualified. The challenged statutes have not only chilled that process, they have essentially frozen that process by making it a virtual certainty that judges would not run for other judicial office at the risk of automatic forfeiture of their office by the mere act of filing for other judicial office. The electorate has been effectively denied a right to a potentially broader selection of judicial candidates. Just as clearly, a registered voter must be recognized as having the standing to assert that the challenged *113statutes have diminished his constitutional right to vote.

II. UNCONSTITUTIONALITY OF SECTIONS 3-1-607 and 3-1-608, MCA

The parties differ in their interpretation of the key language of Art. VII, Section 10, which provides that “Any holder of a judicial position forfeits that position by . . . filing for an elective office other than a judicial position . . .” (Emphasis added.) This provision applies to all judges in this state. The challenged statutes, however, (Sections 3-1-607 and 3-1-608, MCA) prevent only district judges and supreme court justices from seeking other judicial office without forfeiting their office. The constitutional delegates, in drafting Art. VII, Section 10, did not intend that a forfeiture of office would result if a judge filed for “other” judicial office. The State, however, interprets Art. VII, Section 10, as creating a vacuum into which the legislature was clearly empowered to move and to enact the statutes declaring a forfeiture of judicial office when district judges and supreme court justices file for other judicial office.

The petitioners rely not only on the language of Art. VII, Section 10, but also on the record of the constitutional proceedings which clearly establishes the intent of the delegates to permit judges to file for other judicial office without forfeiting their own offices. Forfeiture of office was intended as the result only when a judge filed for a legislative or executive position. (See Part I, supra.) The State concedes that the delegates had this intent, but nonetheless argues that the delegates somehow drafted a provision that did not reflect this intent. The State argues that this Court is bound by what was drafted rather than by what was intended. The State’s interpretation of Art. VII, Section 10, would permit the legislature to enact the forfeiture sanctions imposed by the challenged statutes.

According to the State, Art. VII, Section 10, does not declare what happens if a judge files for a judicial position — it only declares that a forfeiture results if a judge files for a *114nonjudicial office. Because the provision does not affirmatively declare that judges can file for “other” judicial office without suffering forfeiture of their own office, the State contends that the legislature may step into this vacuum and enact laws declaring what does happen when a judge files for “other” judicial office. With this as its premise, much of the State’s brief is devoted to the theoretical basis on which it believes the legislature has the authority to enact so-called “resign to run” statutes. The cases cited in this analysis, however, do not apply to a situation where the question turns on the interpretation to be given to a “resign to run” constitutional provision.

The question, of course, involves the interpretation to be given Art. VII, Section 10. The State argued in its briefs that no ambiguity in the language exists and that its interpretation is the only reasonable one. Yet, in oral argument before this Court, the State conceded that petitioners’ interpretation of Art. VII, Section 10, is a reasonable one. Despite this concession of two diametrically opposed “reasonable” interpretations of the constitutional provision, the State refused to concede that an ambiguity exists that can be resolved only by reference to the record of the constitutional proceedings. The record, of course, supports the petitioners’ interpretation of the constitution.

The constitutional prohibition against judges seeking nonjudicial offices while still holding judicial office is but part of a general constitutional scheme declaring directly or indirectly the rights of office holders in all branches of government to seek office while still holding office. The legislative article (Art. V) does not expressly mention whether a legislator can file for another elective office without forfeiting his legislative office, but Art. V, Section 9, indirectly places restrictions on “other” office holding. It further prohibits a member of congress or a public office holder in this state from simultaneously holding office as a legislator. The executive article (Art. VI, Section 5(2)) expressly provides that executive office holders “. . . may be a candidate for *115any public office during his term.” (Emphasis added.)

The judicial article is clearly the most restrictive — it imposes severe sanctions on office-seeking by judicial office holders. Any judge holding office in this state forfeits his office if he files for any office — “other than a judicial position.” (Art. VII, Section 10, supra.) Though it does not mention filing for a legislative or an executive office, the crystal clear message of this provision requires a judge to forfeit his judicial office if he files for either a legislative or an executive office. It is equally clear, however, that the constitutional delegates did not intend a forfeiture of judicial office to result if a judge filed for “other” judicial office. The language, “other than a judicial position,” shows that the delegates intentionally left the door open for judicial office holders to file for other judicial office without forfeiting their offices as a condition to seeking other judicial office through the election process.

The State’s position would permit the legislature to close a door which the constitutional delegates intentionally left open. The door was left open because the delegates perceived a public benefit in opening up the judicial election process to judges who desired to move from lower courts to the district court and from district court to the supreme court, or from a justice on the supreme court to a chief justice on the supreme court. (See Part I, supra.) While Art. VII, Section 10, does not affirmatively declare that judicial candidates can run for other judicial office without incurring forfeiture of their own office, its intent is sufficiently clear. To say that a judge forfeits his office if he files for a non-judicial office is but another way of saying that a sitting judge can file for other judicial office without forfeiting his office.

Sections 3-1-607 and 3-1-608, MCA, forbid what Art. VII, Section 10, authorizes, and they are therefore in conflict with this constitutional provision. This opinion shall constitute a declaratory judgment holding that Sections 3-1-607 and 3-1-608, MCA, are unconstitutional.

*116The request for declaratory relief is granted.

MR. JUSTICES HARRISON, SHEEHY and WEBER concur.

APPENDIX A

“3-1-607. Supreme court justice or district court judge not to run for office — resignation required. (1) If a person occupying the office of chief justice or associate justice of the supreme court or judge of a district court of the state of Montana becomes a candidate for election to any elective office under the laws of the state of Montana, he shall immediately, and in any event at or before the time when he must file as a candidate for such office in any primary or special or general election, resign from his office of chief justice, associate justice, or district judge.

“(2) The resignation becomes effective immediately upon its delivery to the proper officer or superior.

“(3) The resignation requirement applies except when the person is a bona fide candidate for reelection to the identical office then occupied by him or for another nonpartisan judicial office the term of which does not commence earlier than the end of the term of the office then occupied by him.”

APPENDIX B

“3-1-608. Forced vacancy. In the event of a failure to resign, the office of chief justice, associate justice, or district judge automatically becomes vacant and the former occupant has no further right, power, or authority therein for any purpose and no right to any emoluments thereof, notwithstanding the fact that a successor is not appointed or elected. The vacancy becomes operative to deprive the person of the emoluments of the office in order to carry out the policy of this Section and 3-1-607.”