No. 83-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1904
STATE OF MONTANA, ex rel., GARY E.
WILCOX and CHARLES BRADLEY,
Petitioners,
DISTRICT COURT OF THE THIRTEENTH
JUDICIAL DISTRICT, THE HONORABLE
NAT ALLEN, HONORABLE C.B. SANDE and
THE HONORABLE ROBERT H. \pJILSON,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Petitioners:
Gary E. Wilcox & Charles Bradley argued,
Billings, Montana
For Respondents:
Hon. Charles Luedke, Dist. Judge, Billings, Montana
Hon. Diane G. Barz, Dist. Judge, Billings, Montana
Hon. William J. Speare, Dist. Judge, Billings
Hon. Robert Wilson, Dist. Judge, Billings, Montana
Hon. C. B. Sande, Billings, Montana
Hon. Nat Allen, Roundup, Montana
For Amicus Curiae:
Hon. Mike Greely, Attorney General, Helena, Montana
Kim Kradolfer argued, Asst. Atty. General, Helena
Moses Law Firm; Charles F. Moses argued, Billings,
Montana
Submitted: November 28, 1983
Decided: March 9, 1984
Filed: '; ,i'% 984
-
clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
The principal question in this case is whether a
retired district judge recalled to temporary active service
by the Chief Justice pursuant to Article VII, Section 6 ( 3 ) of
the Monta-na Constitution a.nd impl-ementing sta.tutes has su-
thority to enter final judgment. We hold he has. Our rea-
soning foll.ows.
Relators Wilcox and Brzdley, respectively a public
defender and the deputy county attorney of Yellowstone Coun-
tj7, filed a petition for a writ of supervisory control in
this Court seeking determination of this question. They
alleged that upon request of the Chief District Judge of the
Thirteenth Judicial District, the Chief Justice called re-
tired District Judges C. B. Sande a.nd Nat Allen to active
service not exceeding ten days per month for a three-month
period because of the volume and backlog of all matters, both
civil and criminal.. This order was entered by the Chief
Justice "pursuant to Article VII, Section 6 ( 3 ) of the Montana
Constitution and statutes enacted in conformity therewith and
in implementation thereof."
Thereafter Judge Robert H. Wilson, a district judge of
.
the Thirteenth Judicial District and the presiding judge in
the four criminal cases that are the subject of the petition,
entered an order stating that he deemed himse3f.~~disqualified
in each of the four cases and invited retired Judge Sande to
accept jurisdiction in one of the four cases and retired
Judge Allen in the remaining three. Both retired judges
accepted -jurisdiction.
The petition challenged their jurisd-iction in each of
the four cases on the following grounds: ( 1 ) that retired
iudges are not "other iudges" within the meaning of Article
VII, Section 6 , of the Montana Constitution; ( 2 ) that retired
jud.ges are not empowered to enter final judgment in any
cause, civil or criminal, under section 19-5-103, MCA; and,
(3) that the procedure used by Judge Wilson in calling in
retired Judges Sande and Allen violated local rule 10 of the
Rul-es of Court of the Thirteenth Judicial District.
Thereafter this Court ordered the other district judges
of the Thirteenth Judicial Distrjct joined as respondents in
this case; set aside our prior order calling Judges Sande and
Allen to active service without prejudice to our final deter-
mination of this cause; directed reassignment of the four
criminal cases to active district judges as provided in local
rule 10; ordered responses, replies and briefing; and provid-
ed that pending resolution of this case, retired. judges would
not be called to sit in the Thirteenth Judicial District
except in compliance with local rule 10.
Responses and briefs were thereafter filed by all
judges of the Thirteenth Judicial District, by retired Judges
Sande and Allen, by petitioners, and by amici Charles F.
Moses and the Attorney General. The parties and amici were
heard on oral argument on November 28, 1983.
The briefs and oral arguments of the parties and amici
set forth widely divergent and contradictory positions.
Accordingly, we will not attempt to identify and set forth
the position of each but will analyze and comment on the
principal contentions and arguments in this case by whomever
raised.
The first principal contention is that retired judges
are not "other judges" within the meaning of Article VII,
Section 6, of the Montana Constitution, empowering the Chief
Justice, upon request of the district judge, to assign "dis-
trict judges and other judges for temporary service from one
district to another, and from one county to another."
The proponents of this position contend that the power
to exercise judicial functions comes only from the people
under the Montana Constitution and the Constitution does not
vest judicial powers in a judge after his term of office
expires. Consequently, they contend, the Supreme Court or
the Chief Justice cannot vest judicial powers in a retired
judqe under its inherent powers because its inherent powers
are limited by the Constitution.
We recognize that the power to exercise judicial func-
tions comes from the people. Article 11, Section 1, of the
Montana Constitution so provides: "A.11 political power is
vested in and derived from the people." The Judicial Article
in the Montana Constitution provides that the judicial power
of the state is vested in one supreme court, district courts,
justice courts and such other courts as may be provided by
law. Article VII, Section 1, Mont. Const. The Judicial
Article further establishes the jurisdiction of the district
courts "in all criminal cases amounting to felony and all
civil matters and cases at law or in equity." Article VII,
Section 4, Mont. Const. It provides that the term of office
of a district judqe is six years (Article VII, Section 7 (2),
Mont. Const.) and for the qualifications of a district judge
(Article VII, Section 9 (4), Mont. Const.).
The Judicial Article of the Constitution further pro-
vides that: "The Chief Justice may, upon request of the
district judge, assign district judges and other judges for
temporary service from one district to another, and from one
county to another." (Emphasis added.) Article VII, Section
6(3), Mont. Const. This is the source of the constitutional
power exercised in this case. It is not an inherent power,
but a power delegated to the Chief Justice by the people of
Montana under this constitutional provision.
Relators and their proponents argue that the words "and
other iudges" do not include retired judges because Montana
has an elected judiciary, that a judge whose term of office
has expired is no longer a judge, and that a person who is
not a judge cannot exercise judicial functions.
While it is true in a general sense that Montana has an
elected judiciary, all persons serving as judges and exercis-
ing judicial functions are not elected by the people by
popular vote. For example, retired judges are empowered to
serve as water judges and are selected by a committee of
district judges. Section 3-7-201 (1), MCA. The Chief Water
Judge is appointed by the Chief Justice of the Montana Su-
preme Court and may be a retired judge. Section 3-7-221,
MCA. Judge Lessley and Judge Thomas, both retired district
judges, are presently serving in such capacities and exercis-
ing judicial functions. The Workers' Compensation Judge
clearly exercises judicial functions but is appointed by the
Governor, not elected by the people. Section 2-15-1014, MCA.
Judges pro tempore likewise exercise judicial functions and
are selected by the litigants, not elected by the people.
Section 3-5-113, MCA. The fact that retired judges' terms as
district judges have expired does not, in itself, disqualify
them from exercising judicial functions.
Relators and proponents of their position further argue
that retired judges are not encompassed in the term "other
judges" in Article VII, Section 6 (3), of the Montana Consti-
tution because retired judges have no district or county.
This provision empowers the Chief Justice, upon request of
the district jud9e, to assign "district judges and other
judges for temporary service from one district to another,
and from one county to another." We find nothing in this
constitutional language eliminating retired judges from
inclusion in the term "other judges" simply because they have
no regularly assigned district or county. The language
simply means that either can be assigned temporarily to a.ny
district or county where their services are requested by the
district judge of that district or county.
It is further argued that allowing a retired judge to
act as a district judge would result in having two incumbents
in the same office at the same time--a de jure judge duly
elected by the people and a de facto judge in the person of a
retired judge. This is prohibited according to proponents of
this view who cite in support: Marcellus v. right (1921),
61 Mont. 274, 202 P. 381; Reimer v. Firpo (1949), 94
Cal.App.2d 798, 212 P.2d 23; Olmstead v. Di-st. Ct. (1965),
157 Colo. 326, 403 P . 2 d 442; Fox v. Fox (1968), 84 Nev. 368,
441 P.2d 678; LaGrange v. Del E. Webb Corp. (1968), 83 Nev.
524, 435 P.2d 515; Chavez v. Baca (1943), 47 N.M. 471, 144
P.2d 175; 48A CJS, Judges, § 57 at 635-636.
We have no quarrel with the general proposition that
there cannot be two incumbents in the same office at the same
time and that a judge's power ceases when his term of office
expires absent enabling legislation. The cited authorities
support these general propositions.
However, these authorities are distinguishable from the
situation in this case. In the cited cases there was no
grant of constitutional power as in the present case. For
example, in the only Montana case cited, a former district
judge granted a new trial after his term had expired without
constitutional or statutory authority. Marcellus v. Wright,
supra. Here, there is an express grant of constitutional
authority to the Chief Justice upon request of the district
judge. Article VII, Section 6 (3), Mont. Const. This does
not create two incumbents in the same office at the same
time. The district judge is the only incumbent in the of-
fice. The retired district judge called in does not become a
second incumbent in that office, but simply exercises the
powers of a district judge on a temporary basis on request of
the district judge. If an active district judge from another
judicial district were called in, can it seriously be argued
that the called-in judge becomes a second. incumbent in the
office of district judge of that district? To ask the ques-
tion is to answer it.
In our view, the constitutional provision in question
addresses the problem of congestion in a particular judicial
district or in a particular county. It requires initiation
by request of the district judge and approval of that request
by assignment of the Chief Justice. This is borne out by the
explanation of Constitutional Convention Delegate Berg in the
transcript of Constitutional Convention proceedings:
"DELEGATE BERG: I should only comment
upon that change [amendment of the lan-
quage in Article VII, Section 6 ( 3 ) , of
the Montana Constitution] that it was
felt that the Chief Justice ought not to
be able to assign district judges, in
effect, willy-nilly around the state;
that it could be open to possible abuse;
that the real need arises when there is
heavy congestion in one District Court;
and, therefore, upon the request of that
district judge, the Supreme Court Chief
Justice may assign any other judge in
there to assist him in the cleanup of his
work. That is the reason for this ad hoc
amendment." [Bracketed phrase added.]
Transcript of Constitutional Convention,
Vol. IV, at 1081.
"DELEGATE BERG: Yes, we consider the
present voluntary system [of one district
judge calling in another between them-
selves] to be very adequate, but we felt
that there may be situations arise where
a judge in one city or another may be
overwhelmed, and he could request ap-
pointment by the Supreme Court."
[Bracketed phrase added.] Transcript of
Constitutional Convention, Vol. IV, at
1083.
It is reasonably clear from the foregoing explanation
that the framers of Article VII, Section 6(3) felt that
something more than the existing statutory scheme of one
judge calling in another on a specific case was necessary to
hand.le conqestion in one county or one judicial district.
Hence, Article VII, Section 6(3) wa.s adopted. As a practical
matter, if they intended to bar retired judges from being
called in for temporary service to clean up the congestion,
where would the "other judges" come from? No answer has been
advanced and we know of none. There is simply no other pool
of qualified judges available. To call in another active
district judge for temporary service t-o relieve the conges-
tion in one district or county is simply robbing Peter to pay
Paul.. It simply creates congestion in the first county or
district for lack of the services of their district judge
while he is away.
At the time of the Constitutional Convention existing
Montana statutes referred to retired judges as judges.
Section 19-5-101, MCA; section 19-5-103, MCA. Since the
legislature has the power to determine the number of district
judges, it is significant that the 1egisl.a.ture has seen fit
to include retired judges as judges in the legislative
scheme. Another facet of the legislative scheme is the
legislature's determination that retired judges should be
subject to call. Section 1.9-5-103, MCA. It is clear that
the legislature intended the use of retired judges as a
source of judicial help at a significant cost saving inasmuch
as retired judges are paid the difference between their
retirement all-owance and the salary of a district judge for
each day of active service. Section 19-5-103, MCA.
In sum, we construe Article VII, Section 6 (3), of the
Montana Constitution to include retired judges in the term
"other judges" and to empower the Chief Justice, upon request
of the district judge, to assign retired judges for temporary
service to any judicial district or county in Montana. This
provision is a constitutional grant of power exclusive of any
statutory grant by the legislature.
The second principal argument of relators and their
proponents is that retired judges a.re not empowered to enter
final judgement in any cause, civil or criminal, under sec-
tion 19-5-103, MCA. That statute provides in pertinent part:
"Call of retired judge for duty. (1
Every ~ T d g eor justice w h r h a s voluntar-
ily retired after 8 years of service
shall, if physically and mentally able,
be subject to call by the supreme court
or the chief justice thereof to aid and
assist the supreme court, any district
court, or any water court under such
directions as the supreme court may give,
including the examination of the facts,
cases, and authorities cited, and the
preparation of opinions for and on behalf
of the supreme court, district court, or
water court, or to serve as water judge.
The opinions, when and if and to the
extent approved by the court, may by the
court be ordered to constitute the opin-
ion of such court. Such court and such
retired judge or justice may, subject to
any rule which the supreme court may
a-dopt,perform any and all duties prelim-
inary to the final disposition of cases
insofar as not inconsistent with the
constitution of the state."
We note at the outset that this statute is a legisla-
tive grant of power and must yield to the constitutional
grant of power in Article VIL, Section 6(3), to the extent of
any inconsistency. State ex rel. Nagle v. Stafford (1934),
97 Mont. 275, 34 P.2d 372. However, it is apparent that the
constitutional provision and the statute address two differ-
ent situations and are mutually exclusive. The constitution-
al provi.sion, on the one hand, is a grant of power to the
Chief Justice to assign district judges and retired district
judges for temporary service to a judicial district or county
upon a request initiated by the district iudge. It addresses
the situation where there is a heavy congestion in one county
or district and the district judge is overwhelmed with cases.
The statutory grant of power by the legislature, on the other
hand, empowers the Supreme Court or the Chief Justice absent
any request by the district judge to call in a retired judge
"to aid and assist" either the Supreme Court or any district
court under such directions as the Supreme Court may give.
It limits the power of the retired judge to the performance
of "any and all duties preliminary to the final disposition
of cases insofar as not inconsistent with the constitution of
the state." This legislative grant addresses the situation
where a district judge needs help in legal research, the
preparation of opinions, and preliminary matters such as a
court commissioner might perform without the necessity of
creating a new position and at a substantially reduced cost.
It requires the district judge to approve and adopt the work
of the retired judge and is ill adapted to a situation of
heavy congestion where the district judge is overwhelmed with
cases.
Since the constitutional provision and the statute are
mutually exclusive, address two different situations, are
triggered by action of different judicial entities, and are
otherwise dissimilar, they are not necessarily in conflict.
So construed, both can be qiven effect. Such construction is
preferable as this Court exercises restraint in reaching
questions of constitutionality of legislative acts, particu-
larly where a case can be decided on nonconstitutional
grounds. Dieruf v. City of Rozeman (1977), 173 Mont. 447,
568 P.2d 127. If construed otherwise, the statute must yield
to the constitutional grant of power without limitation.
State ex rel. Nagle v. Stafford, supra. Here, the retired
judges were called in pursuant to the constitutional grant
and not under the statute. Accord.i.ngly, the retired judges
have the complete jurisdiction of the district court "in all
criminal. cases amounting to felony and all civil matters and
cases at law or in equity," Article VII, Section 4, Mont.
Const., including final dispositions.
The final principal contention of relators and their
proponents is that Judge Wilson violated local rule 10 of the
Rules of Court of the Thirteenth Judicial District in calling
in retired Judges Sande and Allen in the four criminal cases
that are the subiect of this petition.
Local rule 10 provides in substance that where one of
the district judges recuses himself in a case, the Clerk of
Court shall reassign the case in a random manner in equal
numbers among the other judges in the district before the
last judge substituted shall call in an outside judge. Here,
the procedure was not followed as Judge Wilson immediately
called in Judges Sande and Allen in the four cases.
This issue is moot. Following the filing of relators'
petition in this case, we directed reassignment of the four
criminal cases to active district judges as provided in local
rule 10. Since local rule 10 has now been complied with,
nothing remains for decision by this Court.
We have read and considered all briefs, arguments and
authorities raised by relators, the four district judges of
the Thirteenth Judicial District, retired Judges Sande and
Allen, amici Moses and the Attorney General, and find it
unnecessary to burden this opinion with a discussion of all-
their arguments and contentions. None would affect our
decision in this case or our rulings on the principal issues
as set forth in this opinion.
Relators' petition for a writ of supervisory control or
other appropriate relief is denied and this proceeding
dismissed.
9 4 t!,$%N&
Chief Justice
We concur:
Justices
Mr. Justice Frank B. Morrison, Jr. respectfully dissents
as follows.
The majority opinion sta.tes:
"While it is true in a general sense that Montana
has an elected judiciary, all persons serving as
judges and exercising judicial functions are not
elected by the people by popular vote."
The majority opinion then cites examples of judges
having limited jurisdiction such as water judges and workers'
compensation judges. While it is true that there are
examples of judges with limited jurisdiction not being
elected, there are no examples of general jurisdiction judges
who do not have to face the voters.
All Supreme Court justices and district court judges in
Montana are elected unless appointed to fill a vacancy. If
appointed, then that appointee must appear on the ballot at
the next election following confirmation.
The effect of the majority opinion is to create an
appointed judiciary which will co-exist with an elected
judiciary. The pool of former judges in retirement continues
to grow and before too many years may equal in number the
judges in active service. The result will be that hundreds
of Montanans will have their case decided by one who is not a
judge at all. The majority has determined that to qualify to
serve as a judge by appointment one need only have a vested
interest in the judicial pension fund. Therefore, one who
enters the judiciary at thirty-five years of age and serves
one six-year term qualifies for judicial service for the
balance of his or her life. Such a person may serve by
appointment of the Chief Justice for thirty years without
ever facing voter rejection.
In my opinion there is no support for this approach in
the Constitution. The majority relies upon Article VII,
section 6 ( 3 ) , Mont. Const. which provides:
"The Chief Justice may, upon request of the
district judge, assign district judges and other
judges for temporary service from 0n.e district to
another, and from one county to another."
The majority interprets the phrase "other judges" to
include former judges in retirement. Former judges are not
judges.
The majority opinion states:
"As a practical matter, if they intended to bar
retired judges from being called in for temporary
service to clean up the congestion, where would the
'other judges' come from? No answer has been
advanced and we know of none."
The majority apparently has not listened to the views of
the minority in this case. This author thinks the term
"other judges" found in the Constitution refers to active
judges other than district court judges. Article VII,
section 6 ( 3 ) , Font. Const., cited above, states that the
Chief Justice may assign district judges for temporary
service in districts other than those from which they are
elected and may assign "other judges" from one county to
another. This would mean that if there is congestion in
certain justice courts that upon the request of a district
judge, the Chief Justice can assign a justice of the peace to
serve in a county other than the one from which that justice
of the peace was elected. For example, if the justice of the
peace court in Helena (Lewis and Clark County) was extremely
congested, Judge Gordon Bennett could request the Chief
Justice to assign a justice of the peace from Townsend
(Broadwater County) for temporary service in Helena. This is
the clear meaning of the constitutional provision.
The majority has engaqed in a strained construction to
achieve a result. There are congested district court dockets
in Montana and to solve the problem the majority of this
Court decided to transform former judges into active judges
by appointment. While this may be a practical solution to a
problem it clearly frustrates the mandate of the people of
Montana to have an elected judiciary. Furthermore, in order
to achieve the result the majority has rewritten a
constitutional provision and, in doing so, have violated
well-established rules of constitutional construction.
As a matter of policy I may wish to see the problem of
court congestion resolved. However, the problem should
properly be left to the Legislature.
Mr. Justice Daniel J. Shca dissenting:
I join in the dissent of Justice Morrison. The will
of the people as expressed in our Constitution has been
clearly frustrated by the majority opinion giving de facto
life-time tenure to all retired judges in this State by the
simple mechanism of a district judge calling the Chief
Justice to ask for help in deciding cases. This is judicial
constitution tampering at its worst.