Committee for an Effective Judiciar ( 1984 )

No. 84-20
I N THE SUPREME COURT O F THE S T A T E O F MONTAPJA
1984
THE COMMITEE FOR AN E F F E C T I V E J U D I C I A R Y ;
ARTIiUR M. MARTIN, CARL 14. D A V I S , J E A N
.
BOlQbIAId, ROBERT S KELLCR, e t a 1 , .
Petitioners,
STATE O F MONTANA, and J A i i S
WALTERMIRE, S e c r e t a r y of S t a t e ,
Respondent.
O R I G I N A L PROCEEDITJG :
COUNSEL O F RECORD:
For P e t i t i o n e r s :
L a r r y Id. E l i s o n s a n d J a m e s G o e t z argued, M i s s o u l a ,
Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Judy B r o w n i n g argued, A s s t . A t t y .
General, Helena
--
Submitted: M a r c h 6 , 1984
Decided: A p r i l 3, 1 9 8 4
Filed:
APR
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Petitj-oners are all registered voters in this state.
This Court assumed jurisdiction of petitioners1 original.
petition for declaratory judgment that we hold sections
3-1-607 and 3-1-608, NCA, unconstitutional because they
conflict with Art. VII, § 10 of the Montana Constitution.
Unless a district judge or supreme court justice resigns his
office, these statutes prevent a district iudge 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 - and - for the full text of
A B
these statutes.) Art. VII, S 10 of our Constitution sets
forth two circumstances in which judicial. office is
forfeited. Lt 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) .
Petiti-oners contend that this constitutional provision
clearly authorizes a district judge to file for elective
office to the supreme court and a iustice 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 exigences 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, § 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 members of the 1972 Constitutional Convention that
drafted and passed Art. VII, 5 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, S 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
bv a constitutional provision, we hold that a registered
voter has standing to assert that public interest by
contending that the constitutional pro~rision has been the
victim of legislative strangulation.
The 1972 constitutional delegates, in considering what
is now Art. VII, 5 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
iudiciary 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 immed-iately
questioned the wisdom of this provision once they learned
that it was intended to prevent district judges from running
for the supreme court and supreme court justices from running
for chief justice -- unless they resigned from office. (Tr.
1972 Constitutional Convention, Vol. IV, at 1148-1158.)
Several delegates aruued 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. 1972
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 forfej-ture of the judicial position he holds." (Tr.
1972 Montana 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 jud-icial 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, 5 lo.)
This constitutional provision was motivated by the
belief of the delegates that the public interest would be
served by a provision that would permit jud~es 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 P.2d 975,
the New Mexico Supreme Court recognized that private parties
should be granted standing to contest important public
issues. The Court said:
"[Tlhis 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 Sego 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 Okl-ahoma Supreme Court,
relying in part on the Sego case, 1-ooked 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
1-egality 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 hroader choice in exercising its
constitutiona1 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 not allow an individual to
bring an action invoking the judicial power, an
elector who is denied this right is sufficient]-y
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 completel-ydenied 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,
S 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 tha.t
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. Practicall-y
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 iudicial 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 statutes have diminished his
constitutional right to vote.
11. UNCONSTITUTIONALITY OF SECTIONS 3-1-607 and 3-1-608,MCA
The parties differ in their interpretation of the key
language of Art. VII, 5 10, which provides that "Any holder
of a judicial. position forfeits that position by . . . filing
for an elective office other - - a judicial position.
than . ."
(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, S 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, § 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
iudges and supreme court justices file for other judicial
office.
The petitioners rely not only on the language of Art.
VII, S 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, 5
10, would permit the legislature to enact the forfeiture
sanctions imposed by the challenged statutes.
According to the State, Art. VJI, S 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 nonjudicial 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, S 10. The State argued in its briefs that
no ambiguity in the language exists and that its
interpretation is the only reasonable one. Yet, jn oral
.
argument before this Court, the State conceded that
petitioners1 interpretation of Art. VII, 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 petitioners1 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 other 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, S 9, indirectly places restrictions on "other"
office holding. It further prohibits a member of congress or
a public office holder i n this state from simultaneously
.
holding office as a legislator. The executive article (Art.
VI, § 5 (2)) expressly provides that executive office holders
". . . mav be a candidate for any 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 - - a judicial
than
position." (Art. VII, S 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 positi.on," 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, S 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,
S 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.
The request for declaratory relief is granted.
,
/
--
i
Justice,,,"
We Concur:
Chief Justice
Justices
APPENDIX A
"3-1-607. Supreme court justice or district court
judge not to run for office--resignation required.
(I) 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
qeneral election, resign from his office of chief
iustice, 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 cand-idate 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. I'
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 o r " 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."
Mr. Chief Justice Frank I. Haswell, dissenting.
Today's majority opinion may arguably establish a good
political policy, but it cannot be sustained under existing
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 conten-
tions because we hold that standing,
under the facts of this case, exists
because the petitioners are registered
voters and the statutes involved adverse-
ly affect the election process contem-
plated by the 1972 Rontana 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 stat-
utes that petitioners ask us to declare unconstitutional; and
(3) the expansion of this Court's judici.al 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 "resi-
dent, citizen, taxpayer and elector" Chovanak v. Matthews
(1948), 120 Mont. 520, 526, 188 P.2d 582, 588. In Chovanak
we held that the judicj-a1power 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 tha.t the acts in question
adversely affect the election processes under the 1972
Montana Constitution.
We have previously construed Montana's Uniform Declara--
tory Judgments Act to prohibit the courts from determining
speculative matters, entering anticipatory judgments, or
providing 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 ma.tters purely speculative,
enter anticipatory judgments, declare
social status, deal with theoretical
problems, give advisory opinions, answer
moot questions, adiudicate academic
matters, -~rovide for concinaencies which
may hereafter arise, or give abstract
opinions. (Citinq cases) The Uniform
~ e c l a r a t o r~ u d ~ m e n t does not 1-icense
~ Act
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, a.bstract and aca.demic
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. I11 of the United States Constitution
which limits judicial. power to "cases" and "controversies."
As recently summarized in Vall-ey Forge Christian College v.
Americans United for Sepa.ra.tionof Church and State (1982),
454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700, 709:
" . . . at an irreducible minimum, Art.
I11 requires the party who invokes the
court's authority to 'show that he per-
sonally has suffered some actual or
threatened injury as a result of the
putatively illegal conduct of the
defendant'. " ..
In f4ontana 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
distinquishable 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.
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 111, United
States Constitution and in the Montana
courts drawn from the 'cases at law and
in equity' definition of state judicial
power in Article VII, 1 9 7 2 Montana
Constitution." 1 7 5 Mont. at 200, 5 7 3
P.2d at 1 8 6 .
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
- at 100 (1978).
Law
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
court's 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
a.nother 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 I,.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 cases, each court found it significa.nt 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 hona fide case or
controversy, a plzintiff challenging a resign-to-run statute
must allege that but for the sanctions of the statutes, he or
she wou1.d engage in the very a.cts that would trigger
enforcement of the statute
We 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 proclama-
tion, 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 operatior, 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,
ha.s been adversely limited by the en-
forcement or threatened enforcement of
section 61-8-304, MCA. He wants to drive
his motor vehicle as fa.st as the basic
rule allows . . . ' 195 Mont. at 7, 635
P . 2 d at 1285.
,
The ma jori-ty ignoring the Montana Constitution and
Montana cases to the contrary, rely on a New Mexico case,
State ex re1 Sego v. Kirkpatrick (197d;), 86 N.M.. 359, 524
P.2d 975 and an Oklahoma case, State ex rel. Howard v.
Okl-ahoma Corporation Commission (Okla. 1980) , 614 P.2d 45 to
gra.nt standing to a private party to contest important public
issues.
In my view, this in 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.
Finally, the majority today have set a far reaching and
dangerous precedent in expanding the judicial power of our
courts beyond the constitutional ].imitation 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 constitutj.ona1 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 aqa.inst
elmost any legislative act and effectively eliminates
constitutional standing requirements.
The issue presented in this case is purely hypothetical
and aca.demic. 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 Ma-rch-to-the-Sea.
I respectfully dissent. I would dismiss the petition
for I.ack of standina.
%A&*
Chief Justice
We join in the foregoing dissent of the Chief Justice.
/"
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.
I o IIenry Lob 'B, istrict Jcldge ,
ln
sitting in place f Mr. ~ustice
Franlc B.
Mr. Justice John C. Sheehy concurring:
I concur fully with the majority opinion and want
to add an observation respecting suits of this nature by
voters.
This Court has long recognized the standing of an
elector who challenges the validity of an election or the
alleged misuse of the elective process. From State ex rel.
Clarke v. Moran (1900), 24 Mont. 433, 633 P. 390, through
State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d
761, and down to the recent case of Jones and Herriott v.
Judge (1978), 176 Mont. 251, 577 P.2d 846, this Court has
guarded and granted standing to a voter whose personal and
constitutional right to vote is denied, affected or threatened,
holding that every patriotic citizen interested in the
enforcement of the election laws, or the selection of
suitable candidates has a direct personal interest which the
courts will enforce on an individual basis.