concurring specially.
While I concur in the result reached by the court in this matter, I strongly disagree with the notion that this primary election contest should be either dismissed or reviewed on its merits. My concern is not with the merit or lack of merit to this dispute. My concern is the integrity of the judicial process. The position taken by Chief Justice Keith and Justice Coyne reaches the correct result, but for the wrong reasons. The position taken by Justices Gardebring and Tomljanovich reaches the wrong result for the wrong reasons. If the judicial branch of our state government has the authority to resolve this primary election contest on its merits, we should follow the statute in doing so. However, before a court may reach the merits of a dispute, it must have authority under the constitution.1 We do not have such authority here. To the extent that Minn.Stat. § 209.10 purports to grant such authority to the judicial branch of government, it is unconstitutional.
Justice Kelly’s well-reasoned analysis in his dissenting opinion in Scheibel v. Pavlak, 282 N.W.2d 843 (Minn.1979), clearly sets forth this court’s lack of authority under the constitution to resolve the issues presented by a primary election contest. What Justice Kelly said is this:
I agree that there is no question of the legislature’s final authority in this matter: it is an absolute grant of constitutional power which may not be delegated to or shared with the courts. It follows as pointed out by the majority opinion that we have no jurisdiction to issue a final and binding decision in this matter and any opinion rendered could only be advisory in nature.
As I interpret, our constitution there is no duty imposed on this court to render any type of decision in this matter whether it be advisory or otherwise. I recognize that his [sic] court has as a matter of comity in some instances adhered to legislative enactments where it seems appropriate to do so. In this case it does not seem appropriate. Our constitution (Minn. Const, art. IV, § 6) provides:
“[That each house of the legislature] * * [*] shall be the judge of the * * * eligibility of its own members.”
Then, to aid the legislature to carry out its judicial role, the constitution authorizes that body to:
“[Prescribe by law the manner for taking evidence in cases of contested seats in either house.”
This language does not expressly or impliedly permit the legislature to obligate this court to make decisions in election contests where each house of the legislature is given the power of determining the eligibility of its members. It only goes so far as to permit the legislature to prescribe the manner for “taking evidence.” Thus, the judiciary should not be required by the legislature to do more than take evidence. This court might be called upon to review the process involved in the taking of evidence.
An additional reason for my thinking that it is inappropriate for this court to render any type of decision in any manner affirming or reversing the court below is that we would be intruding on the powers and duties of another branch of the government — the legislature.
I also have some misgivings about the constitutional propriety of the trial court making findings of fact and conclusions of law but because it is a one-[person] court, it seems less intrusive. That court perhaps should have done no more than take the evidence, state the issues, and summarize the testimony.
Id. at 865-66.
Even the majority in Scheibel acknowledged the constitutional problems created by the court’s involvement in legislative election contest disputes. The court stated:
The Supreme Court of Minnesota * * * cannot and should not act as an agent for the Legislature. Its function is to act independently and with finality. In a case *520as this, we cannot act independently and with finality. To attempt to do so would be a clear violation of the constitutional directive that the House and Senate be the judges of the qualifications of their members.2
Id. at 851. The judicial branch of our state government cannot act with independence and finality in this case. While we could issue an advisory opinion, we should not. To do so we would have to act as an agent for the Legislature. Therefore, Mr. Derus’ primary election contest must be dismissed.
In his brief to this court, Mr. Derus argues that it is the Legislature, and the Legislature alone, which has the constitutional authority to resolve the issues raised by a primary election contest. His argument is correct. Mr. Derus’ primary election contest must be taken directly to the Legislature.
. While the parties did not raise the issue of jurisdiction, the court may always raise the issue on its own motion. Izaak Walton League of Am. Endowment, Inc. v. State Dep't of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977).
. In spite of its constitutional concerns, the Scheibel court issued an advisory opinion because it had “heard the case and spent a great deal of time studying and deliberating on its merits before becoming acutely aware of the institutional considerations counselling dismissal.” Id. at 851. While I do not believe that that is a sound basis for issuing an advisory opinion, I note that even if it were, it is not a consideration in this case.