State ex rel. Hennepin County Bar Ass'n v. Amdahl

Decision Date28 December 1962
Docket NumberNo. 38934,38934
Citation264 Minn. 350,119 N.W.2d 169
PartiesSTATE of Minnesota, ex rel. HENNEPIN COUNTY BAR ASSOCIATION and Sidney S. Feinberg, individually and as President of Hennepin County Bar Association, Relators, v. Honorable Douglas K. AMDAHL and Honorable Donald T. Barbeau, Respondents.
CourtMinnesota Supreme Court

Syllabus by the Court.

Where a vacancy occurs in the candidacy for a judicial office between the primary and general elections, a person appointed to fill such vacancy holds his office until the next general election held more than one year after such appointment under Minn.Const. art. 6, § 11.

Sidney S. Feinberg, Thomas E. Sands, Jean J. McVeety, Lowell F. Epple, Minneapolis, for relators.

Neville, Johnson & Thompson, Richard W. Johnson, Paul H. Klaverkamp, Benedict Deinard, Carl K. Lifson and Robert Kelber, Minneapolis, for respondents.

KNUTSON, Chief Justice.

Harold N. Rogers was elected Judge of the District Court of the Fourth Judicial District at the general election in 1956. His term of office normally would expire on the first Monday of January 1963. He filed for reelection in the 1962 primary election and was nominated without opposition. One week before the 1962 general election was to be held, on October 31, 1962, Judge Rogers died. On November 2, the governor appointed Douglas K. Amdahl to fill the vacancy created by the death of Judge Rogers. Purporting to act under Minn.St. 202.14, Donald T. Barbeau filed by petition for the office held by Judge Rogers for the term commencing on the first Monday of January 1963. No one else filed for the office. It is conceded that Amdahl's appointment is effective until the first Monday of January 1963. This is a proceeding in quo warranto to determine who shall be entitled to hold the office on and after January 7, 1963.

Prior to 1956, Minn.Const. art. 6, § 10, read:

'In case the office of any judge become vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor is elected and qualified. And Such successor shall be elected at the first annual election that occurs more than thirty days after the vacancy shall have happened.' (Italics supplied.)

An amendment to article 6 of our constitution was adopted by the people on November 6, 1956. Article 6, § 11, of the amendment reads:

'Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy, to hold office until his successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after such appointment.' (Italics supplied.)

Inasmuch as both claimants to the office appear here as respondents, we will refer to them by their surnames to avoid confusion.

Respondent Barbeau first contends that the language of art. 6, § 11, is not self-executing and that no vacancy in a judicial office can be filled by appointment until this constitutional provision is implemented by an act of the legislature. Ordinarily, language such as we have here might be so construed. However, the office of judge is of such vital importance that we cannot believe that the people of the state ever intended that a vacancy in such office should remain unfilled simply because the legislature has failed to act. Since the adoption of this constitutional amendment, three sessions of the legislature have been held. Numerous judicial appointments have been made during that time. Numerous opinions of the attorney general have been issued recognizing the appointive power of the governor, and up to this time no one has questioned the right of the governor to fill such vacancies by appointment. To permit such office to remain vacant until the legislature acts, or at least until there is an election, is simply unthinkable. A construction of our constitution must be given that will not defeat the obvious will of the people.

State ex rel. Lull v. Frizzell, 31 Minn. 460, 18 N.W. 316, involved the construction of amendments to our constitution providing, among other things, for biennial elections instead of annual elections and fixing the term of judges at 6 years instead of 7 years. In construing a provision relating to the election of judges, we said (31 Minn. 465, 18 N.W. 318):

'* * * There is no provision in the constitution for filling by appointment a vacancy in the office of a judge Caused by the expiration of the regular term for which he was elected. * * * Hence, if no judicial officer can be elected in 1884, the office of probate judge in about half of the counties in the state, and possibly that of at least one district judge, might remain vacant for the space of two years without their being any constitutional means of filling the vacancy. It is true that the present incumbents might resign before the expiration of the terms for which they were elected, and thus enable the governor to fill the vacancies by appointment. But as there is no law to compel them to resign, and they might either refuse or neglect to do so, It is not to be presumed that the legislature intended to leave the very existence of any part of the judicial branch of the government dependent on any such contingency. We might also add that if no judicial officer can be elected at the general election in 1884, it would almost seem to follow that none could be elected at any subsequent general election; for the fair inference from the whole clause is that only such classes of officers should be elected at subsequent general elections which can be elected at the first one. We must therefore reject this construction, both Because of its unreasonableness and The injury to the public which would result from it.' (Italics supplied in part.)

Maynard E. Pirsig, discussing the proposed judiciary article which was adopted in 1956, said, among other things:

'Vacancies in a judicial office are to be filled by appointment by the governor as under the present constitution.' 1

It is therefore essential that we hold that the controlling language of our constitution grants to the governor the power to fill vacancies by appointment and that the language 'in the manner provided by law' is permissive in that it grants to the legislature authority, if it sees fit, to provide the manner in which the appointment shall be made. Until the legislature takes some action to exercise the power so granted to it, the fundamental power of appointment exists as it did prior to the amendment.

The history of the adoption of the new judiciary article can lead to no other conclusion. The article finally proposed and adopted by the people was the result of agitation for judicial improvement running over many years. In 1941, the Judicial Council appointed a committee, headed by former Chief Justice Charles Loring, to make a study of needed revision in the judicial system of this state. It made a report in 1942 for sweeping changes in our whole judicial system. 2

No legislative action was taken on the proposals of this committee. In 1947, the legislature created a constitutional commission 3 to study and report on needed revisions to our whole constitution. The commission created several subcommittees to study and report on suggested changes in various articles of the constitution. One of such subcommittees dealt with the judiciary article. 4 Section 14 of its preliminary report dealt with the filling of vacancies and read:

'If the office of a judge becomes vacant, The governor shall appoint some qualified person to fill such vacancy, who shall hold office until his successor is elected and qualified. Such successor shall be elected at the first election occurring more than one year after the vacancy occurred for a term of six years and until his successor is qualified. * * *' (Italics supplied.) 5

As an alternative to this section, the committee recommended the adoption of the so-called American Bar Association merit plan for appointment and election of judges, sometimes called the 'Missouri Plan.' 6 The report further provided in § 14:

'* * * If the legislature provides for the appointment of such judge in the manner prescribed in section 11, subdivision (b), this section shall be inoperative.'

The report of the commission failed to receive legislative approval and was never submitted to the people. However, the Minnesota State Bar Association became interested in the proposal for an amendment to the judicial article alone. It was given wide publicity among the members of the bar and was approved by the association at its annual meeting in 1953. 7 Section 11, as approved by the State Bar Association, read:

'Appointment. Whenever there is a vacancy in the office of a judge, the governor shall appoint in the manner provided by law a qualified person to fill the vacancy to hold office until his successor is elected and qualified.'

It is apparent that the words 'in the manner provided by law' were inserted when the alternative proposal to adopt the American Bar Association plan was dropped in order that the legislature might provide some method whereby candidates for appointment could be controlled by some kind of selection. It was not intended to destroy the power of the governor to make the appointment.

After this approval of the judiciary article by the State Bar Association, a committee was appointed to conduct an active campaign for the adoption of the article. 8 Members of the bar were urged to work for its adoption. 9

The crucial question here is what the drafters and the legislature intended by the language of the amended constitution that '(t)he successor shall be elected for a six year term at the next general election Occurring more than one year after such appointment' (italics supplied), and what the people understood this language to mean when they adopted the proposed amendment.

In State ex rel....

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