Daly, In re

• Decision Date: 08 September 1972
• Docket Number: No. 43867,43867
• Citation: 200 N.W.2d 913,294 Minn. 351
• Parties: . Drexler and Charles Thibodeau for Judge of District Court. Supreme Court of Minnesota
• Court: Minnesota Supreme Court

Page 913

200 N.W.2d 913

294 Minn. 351

In re Candidacy of Jerome DALY and Gordon C. Peterson for

Associate Justice of the Supreme Court, and the

Candidacy of William E. Drexler and

Charles Thibodeau for Judge of

District Court.

No. 43867.

Supreme Court of Minnesota.

Sept. 8, 1972.

Warren Spannaus, Atty. Gen., Curtis Forslund, Sol. Gen., Byron E. Starns, Sp. Asst. Atty. Gen., St. Paul, for appellants.

Jerome Daly, Gordon Peterson, William E. Drexler and Charles Thibodeau, pro se.

Heard and considered en banc.

OPINION

PER CURIAM.

This is a proceeding under Minn.St. 203.38, subd. 1, to determine the eligibility of four individuals to have their names appear on the ballots for the general election to be held November 7, 1972, as candidates for justice of the supreme court or judge of the district court.

Jerome Daly was admitted to practice law in this state on May 14, 1953. He was disbarred by order or this court on July 16, 1971. William Edward Drexler was admitted to practice law in this state on October 13, 1961. He was disbarred by order of this court on June 18, 1971. Gordon Clinton Peterson, also known as Gordon C. Peterson, was admitted to practice law in this state on April 29, 1942. He was disbarred by order of this court on June 23, 1961. Charles Thibodeau has never been admitted to practice law in this state.

On July 14, 1972, Jerome Daly filed an affidavit with the secretary of state as a candidate for the office of associate justice of the supreme court held by C. Donald Peterson; on the same date, Gordon C. Peterson filed an affidavit with the secretary of state as a candidate for the office of associate justice of the supreme court held by Fallon Kelly; William E. Drexler filed his affidavit with the county auditor of Ramsey County as a candidate for the office of judge of the district court held by Sidney P. Abramson; and Charles Thibodeau filed his affidavit with the county auditor of Hennepin County for the office of judge of the district court, family court division, held by A. Paul Lommen. Each paid the filing fee required by Minn.St. 202.05.

Based upon the affidavits of Arlen I. Erdahl, secretary of state of the State of Minnesota, Lou McKenna, county auditor of Ramsey County, and George B. Hickey, county auditor of Hennepin County, questioning whether the above named individuals, or any of them, are eligible to file for or to hold the office for which they seek to have their names on the ballots in the November 1972 general election, we issued our order to show cause pursuant to § 203.38, subd. 1, why the secertary of state and the respective county auditors should not be commanded to refrain from placing the names of either or any of these prospective candidates on the ballots for the general election to be held November 7, 1972.

The proceeding is brought here as an original proceeding under § 203.38, subd. 1, which reads:

'When it shall appear by affidavit to any judge of the supreme court in the case of a state election, or of the district court of the proper county in the case of a county election:

'(a) That an error or omission in the placing or printing of the name * * * of any candidate on official primary or general election ballots has occurred or is about to occur; or

'(b) that any other error in preparing or printing the ballots has occurred or is about to occur; * * *

then the judge immediately shall order the officer, person, or board charged with the error, wrong, neglect, or failure to correct the same or perform the duty forthwith or show why he should not do so.'

Section 203.38, subd. 1, was designed to provide an expeditious procedure for legal determination of the proper preparation of ballots to be used at a primary or general election. The need for such procedure has long been recognized. In State ex rel. Olson v. Scott, 105 Minn. 513, 117 N.W. 845, 1044 (1908), which involved a proceeding under the forerunner of our present statute to prevent the county auditor of Hennepin County from placing the name of a potential candidate for the legislature on the ballot, we discussed the nature of this statute (105 Minn. 516, 117 N.W. 1045):

'* * * The public interest requires that there should be some speedy method of determining whether candidates for public office are legally entitled to have their names placed on the official ballot, and section 202 (R.L.1905) is intended to accomplish that purpose.'

Even under this statute, proceedings are sometimes commenced too late to enable the court to act. Such was the case of Marsh v. Holm, 238 Minn. 25, 55 N.W.2d 302 (1952). Moe v. Alsop, 288 Minn. 323, 180 N.W.2d 255 (1970), involved the eligibility of a candidate for the legislature. There were fact issues involved, so it was necessary to appoint a referee to take and report evidence. While we discussed the limited time afforded the court to decide questions involved, we were in that case able to dispose of them due to the expeditious manner in which the referee acted.

A review of our cases brought under this statute discloses a variety of questions that have been raised relating to proper preparation of ballots. Clearly, eligibility to hold the office which an individual seeks is one of the questions properly falling within the purview of the statute.

While a proceeding under this statute is directed against the official whose responsibility it is to prepare the ballots, the order to show cause in this case was also served on those whose eligibility was questioned in order that they might appear and be heard. ¹ They have been given full opportunity to file briefs and to present their views orally. Daly, Peterson, and Thibodeau did appear and argue orally. Drexler did not appear but has joined in the briefs filed and filed a memorandum of his own. They argue for the most part that § 203.38, subd. 1, is unconstitutional in that it violates due process. We do not agree. In a summary proceeding of this kind, which requires a speedy determination if it is to accomplish its purpose at all, it is difficult to see what more could have been done to afford everyone involved a fair opportunity to be heard.

The qualifications of judges of the supreme court and judges of the district court are found in Minn.Const. art. 6, § 7, which, so far as material, provides:

'Judges of the supreme court, the district court, and the probate court Shall be learned in the law. The qualifications of all other judges and judicial officers shall be prescribed by law.' (Italics supplied.)

The case of State ex rel. Jack v. Schmahl, 125 Minn. 533, 147 N.W. 425 (1914), involved an attempt by a person not an attorney at law to file for the nonpartisan primary election for the office of judge of the district court. In holding that such person was ineligible under the constitutional provision quoted above, we said (125 Minn. 534, 147 N.W. 426):

'* * * Our Constitution (article 6, § 6) ² provides:

"The judges of the supreme and district courts shall be men learned in the law.'

'Beyond question the framers of the Constitution used the last five words quoted in the sense of attorneys at law, and this view has since been uniformly accepted. The few authorities on the subject are to the same effect. See Jamieson v. Wiggin, 12 S.D. 16, 80 N.W. 137 (1899); Freiler v. Schuylkill County, 46 Pa.Super.Ct. 58 (1911). The matter does not merit further discussion.'

That definition was followed in State ex rel. Froehlich v. Ries, 168 Minn. 11, 209 N.W. 327 (1926), and State ex rel. Boedigheimer v. Welter, 208 Minn. 338, 293 N.W. 914 (1940). It is controlling as to Charles Thibodeau.

In our constitutional convention debates, an attempt was made to eliminate the qualification that members of the supreme court and the district court be learned in the law. In the report of F. H. Smith of the debates before the Democratic group, Minnesota Constitutional Debates, 1857, p. 513, we find the following:

'Mr. BROWN. I move to strike out in the first line of the following Section (the predecessor to art. 6, § 7) the words 'shall be men learned in the law and':

'If you are going to give the election of Judges to the people, I do not see why you should trammel the people by specifying what sort of men they are to select for Judges. They certainly should have the right to select such men as they see fit, whether learned in the law or not.

'Mr. FLANDRAU. * * * I suppose the meaning of the term which the gentleman proposes to strike out is that the candidate shall be a Counsellor or Attorney at Law. If he has been admitted to the bar, that is all which will be required.

'Mr. EMMETT. That is the legal construction of the term.

'The amendment was not agreed to.'

Prior to the amendment to the Constitution in 1956, the term 'learned in the law' applied only to members of the supreme court and the district court. That amendment added members of the probate court. At that time there were a number of judges of the probate court who were laymen.

They were permitted to remain in office under a schedule appended to Minn.Const. art. 6, which, so far as relevant, provides:

'(b) All probate judges in office at the time this Article takes effect shall be deemed learned in the law for the purpose of continuance in, and reelection to, any judicial office inferior to the district court.'

In an article by Charles B. Howard, who was chairman of the state bar association committee on consitutional revision, we find the following:

'The Supreme Court, district court and probate court judges are required to be learned in the law and the legislature is authorized to set up qualifications for other judicial officers. In the opinion of the sponsors, it is no longer necessary to use untrained people to sit as judges. It is believed that under the general power granted to the legislature to create courts, it will be possible to set up a court system where a sufficient number of qualified persons will be available to decide legal controversies.' Ho...