dissenting:
Today’s majority opinion may arguably establish a good political policy, but it cannot be sustained under existing law.
The essence of the majority opinion on the standing of petitioners to bring this action is contained in a single sentence:
“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.”
In sum, I dissent on the following grounds: (1) There is no actual case or controversy to invoke the judicial power of this Court; (2) there is no injury or threatened injury to any of the petitioners by reason of the resign-to-run statutes that petitioners ask us to declare unconstitutional; and (3) the expansion of this Court’s judicial power is a dangerous precedent that violates constitutional and statutory provisions of existing law.
Essentially this is an original petition seeking a declaratory judgment that the resign-to-run statutes are unconstitutional. Montana adopted the Uniform Declaratory Judgments Act in 1935. Under that Act a decision on the constitutionality of a statute cannot be obtained by a person who has no interest in the question except that of a “resident, citizen, taxpayer and elector.” Chovanak v. Matthews (1948), 120 Mont. 520, 526, 188 P.2d 582, 588. In Chovanak we held that the judicial power under this Act extends only to actual cases and controversies and not to abstract questions. Petitioners here seek to overturn this holding on the grounds they are voters and that the acts in question adversely affect the election processes under the 1972 Montana Constitution.
We have previously construed Montana’s Uniform Declaratory Judgments Act to prohibit the courts from determining speculative matters, entering anticipatory judgments, or *118providing for contingencies that may later arise:
“It has been held and we approve of the following statement of the principles applicable under the Uniform Declaratory Judgment Act:
“ ‘The courts have no jurisdiction to determine matters purely speculative, enter anticipatory judgments, declare social status, deal with theoretical problems, give advisory opinions, answer moot questions, adjudicate academic matters, provide for contingencies which may hereafter arise, or give abstract opinions. (Citing cases.) The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.’ ” (Citing cases.) (Emphasis added.) Montana Department of Natural Resources and Conservation v. Intake Water Co. (1976), 171 Mont. 416, 440, 558 P.2d 1110, 1123.
The case at bar is a manufactured or contrived lawsuit. Petitioners admittedly are an ad hoc committee formed to prosecute this case. At oral argument counsel for petitioner stated: “This committee was formed for the express purpose of initiating this lawsuit to answer this question.”
No individual on the committee is alleged to have any interest in running for judicial office. No sitting judge has expressed a desire to run for another judicial office. Under such circumstances this Court has no jurisdiction to determine the purely theoretical, abstract and academic question posed which owes its genesis to a hypothetical future contingency that may or may not arise.
Secondly, there is no injury or threatened injury to petitioners apart from the general public. This is a constitutional requirement of standing under both the United States and Montana Constitutions.
The Federal injury requirement has been found to stem from language in Art. Ill of the United States Constitution which limits judicial power to “cases” and “controversies.” As recently summarized in Valley Forge Christian College v. Americans United for Separation of Church and State (1982), 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d *119700, 709:
. . at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’. . .”
In Montana we have also held that our state constitution requires an actual “case” or “controversy” before the judicial power can be invoked. In a 1977 case, we held:
“From these cases we synthesize that the issue presented for review must represent a “case” or “controversy” within the judicial cognizance of the state sovereignty. Additionally, the following minimum criteria are necessary to establish standing to sue a governmental entity: (1) The complaining party must clearly allege past, present or threatened injury to a property or civil right; and (2) the alleged injury must be distinguishable from the injury to the public generally, but the injury need not be exclusive to the complaining party.” Stewart v. Board of County Commissioners (1977), 175 Mont. 197, 201, 573 P.2d 184, 186.
Only those adversely affected by a statute can challenge its validity. Jones v. Judge (1978), 176 Mont. 251, 577 P.2d 846.
A constitutionally grounded requirement of injury is not a discretionary matter which the court may require or dispense with at its option. Constitutional standing requirements are distinguishable from discretionary prudential limitations which the courts have fashioned to limit the number of cases they hear. In Stewart we recognized this distinction:
“The concept of standing arises from two different doctrines: (1) Discretionary doctrines aimed at prudently managing judicial review of the legality of public acts, (citations omitted); and (2) doctrines of constitutional limitation in the federal courts drawn from the ‘cases and controversies’ definition of federal judicial power in Article III, United States Constitution and in the Montana courts drawn from *120the ‘cases at law and in equity’ definition of state judicial power in Article VII, 1972 Montana Constitution.” 175 Mont. at 200, 573 P.2d at 186.
This distinction is crucial because courts are free to fashion exceptions to discretionary prudential limitations but not constitutional standing requirements which are mandatory. See generally, L. Tribe, American Constitutional Law at 100 (1978).
Here the flaw in petitioners’ standing is that it presents only a hypothetical future contingency for determination which we have held insufficient to invoke the courts’ jurisdiction. Intake Water Co., supra. Petitioners here have alleged only that some judges may choose to run, i.e. that the statutes may be triggered by a hypothetical future event that may or may not occur. No past, present or future injury is alleged absent hypothetical future events or occurrences. There can be no injury to petitioners unless and until a sitting judge indicates a desire to run for another judicial office but for the resign-to-run statutes. The following major cases in which resign-to-run statutes have been challenged reveal that in each case at least one of the petitioners alleged that he or she wanted to run for another office: Clements v. Fashing (1982), 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508; Bullock v. Carter (1972), 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92; Joyner v. Moffard (9th Cir. 1983), 706 F.2d 1523; Morial v. Judiciary Commission of the State of Louisiana (5th Cir. 1977), 565 F.2d 295; Henderson v. Fort Worth Independent School District (5th Cir. 1976), 526 F.2d 286. Although standing was not at issue in these case, each court found it significant to note that one of the plaintiffs had expressed a desire to run for office.
I would hold as the United States Supreme Court held in Clements, supra, that to have a bona fide case or controversy, a plaintiff challenging a resign-to-run statute must allege that but for the sanctions of the statutes, he or she would engage in the very acts that would trigger enforcement of the statute. *121We followed the above analysis in Lee v. State (1981), 195 Mont. 1, 5, 635 P.2d 1282, 1284, wherein our opinion summarized Lee’s complaint in this language:
. . In his complaint, he alleges that he is a resident of Fort Shaw, Cascade County, Montana; that he frequently drives a motor vehicle on the highways of this state, particularly Montana State Highway No. 200 and Interstate Highway No. 15 between Fort Shaw and Great Falls, Montana; that the attorney general has issued the proclamation to which we have adverted; that except for such proclamation, he would be entitled to drive a motor vehicle under the provisions of Section 61-8-303, MCA, (the basic speed rule) in excess of 55 miles per hour as he was accustomed to doing prior to the issuance of the proclamation.”
This language of the complaint was followed by the Court’s observation that:
“. . . Gary Lee is directly affected by the operation of the statute he attacks in this case. His right or privilege to drive a motor vehicle by the basic rule of safety under Section 61-8-303, MCA, has been adversely limited by the enforcement or threatened enforcement of Section 61-8-304, MCA. He wants to drive his motor vehicle as fast as the basic rule allows ...” 195 Mont. at 7, 635 P.2d at 1285.
The majority, ignoring the Montana Constitution and Montana cases to the contrary, rely on a New Mexico case, State ex rel Sego v. Kirkpatrick (1974), 86 N.M. 359, 524 P.2d 975 and an Oklahoma case, State ex rel. Howard v. Oklahoma Corporation Commission (Okla. 1980), 614 P.2d 45 to grant standing to a private party to contest important public issues.
In my view, this is not a voting rights case. No voter has the right to vote for a potential candidate who does not choose to run. Montana’s resign-to-run statutes restrict the conduct of judges, not the conduct of voters. These statutes no more affect the public interest or the rights of voters than statutes establishing qualifications for any elective office.
*122Finally, the majority today have set a far reaching and dangerous precedent in expanding the judicial power of our courts beyond the constitutional limitation of actual cases and controversies. The majority speaks of the public interest as justification for granting standing to adjudicate this controversy. The policies that underlie this constitutional limitation of standing are of equal importance to the public.
Petitioners want this Court to reach out and declare a legislative act unconstitutional simply because it allegedly affects the public interest and their constitutional rights as voters. Their constitutional rights as voters are not infringed absent the presence of a sitting judge who wants to run for another judicial office but for the statutes in question. The perceived public interest is a nebulous concept dependent on whose ox is being gored. The contention that public interest creates standing can be made against almost any legislative act and effectively eliminates constitutional standing requirements.
The issue presented in this case is purely hypothetical and academic. The majority opinion today establishes a precedent that will compel this Court and the district courts in future cases to file down this self-created primrose path like lemmings in their March-to-the-Sea.
I respectfully dissent. I would dismiss the petition for lack of standing.
MR. JUSTICE GULBRANDSON and the HON. HENRY LOBLE, sitting for MR. JUSTICE MORRISON, join in the foregoing dissent of the Chief Justice.