State ex rel. Racicot v. District Court of First Judicial Dist. In and For County of Lewis and Clark
| Decision Date | 17 May 1990 |
| Docket Number | No. 90-144,90-144 |
| Citation | 794 P.2d 1180,243 Mont. 379 |
| Parties | STATE of Montana ex rel. Marc RACICOT, Attorney General for the State of Montana, Relator v. The DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT of the State of Montana, in and for the COUNTY OF LEWIS AND CLARK, and the Honorable Thomas C. Honzel, District Judge, Respondent. |
| Court | Montana Supreme Court |
Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, for relator.
Garth B. Jacobson, Chief Counsel, Secretary of State, Patrick Melby, Luxan & Murfitt, Helena, for respondent.
The Montana Attorney General petitioned for a writ of supervisory control requesting immediate review of a writ of The Montana Attorney General's petition for writ of supervisory control raises the following issues:
mandamus issued by the First Judicial District Court, Lewis and Clark County. The District Court ordered the Secretary of State to accept filings for election to a Montana Supreme Court position and two district court positions with terms that will expire at the end of this year. The District Court held that Art. VII, Sec. 7 and Sec. 8, Mont.Const., require the nominees currently filling the positions to stand for election at the general election preceding the expiration of the term to which nominated even [243 Mont. 381] though the Senate had not yet been in session and therefore had not confirmed the nominations. We accept jurisdiction, issue the writ of supervisory control, and vacate the District Court's writ of mandamus
1. Should the Montana Supreme Court accept jurisdiction and issue a writ of supervisory control when the District Court's interpretation of Art. VII, Sec. 7 and Sec. 8, Mont.Const., required judicial elections with a filing deadline of March 30, 1990?
2. Do Art. VII, Sec. 7 and Sec. 8, Mont.Const., require the Secretary of State to place Montana Supreme Court Justice Position Number One, Thirteenth Judicial District Department Four, and Eighteenth Judicial District Department Two on the 1990 ballot when the Governor filled the positions by nominations and the Senate had not been in session and had no opportunity to confirm those nominations?
On August 31, 1989, Justice L.C. Gulbrandson retired from Montana Supreme Court Justice Position Number One. Had he completed the term, it would have expired on January 6, 1991, see § 3-2-103, MCA, with primary election for his successor on June 5, 1990, see § 13-1-107, MCA, and a filing deadline of March 22, 1990, see § 13-10-201(6), MCA. Governor Stephens nominated District Court Judge Diane Barz to fill the vacant seat. The Governor also nominated Maurice Colberg, Jr., to a similar vacancy in Department Four of the Thirteenth Judicial District and Larry W. Moran to a similar vacancy in Department Two of the Eighteenth Judicial District. Because the Senate has not been in session since the foregoing nominations, it has been unable to consider confirmation of the nominations.
On March 14, 1990, Gene Huntley attempted to file with the Secretary of State a Declaration for Nomination for Justice Position Number One. The Secretary of State rejected Mr. Huntley's declaration stating he was bound by 42 Att'y Gen. Op. 31. That opinion concluded that no election for a judicial position can occur until the Senate has confirmed a serving nominee.
Mr. Huntley then petitioned the District Court for a writ of mandamus. The Court ordered the Secretary of State to either file Mr. Huntley's declaration or to show cause why it had not been filed by the hearing date of March 20, 1990. The Attorney General was granted permission to intervene. At the show cause hearing, the District Court orally granted Mr. Huntley's petition and ordered the Secretary of State to accept the declaration. The Court also extended the filing date for election to the affected judicial offices from March 22, 1990, to March 30, 1990, but reserved the question of Mr. Huntley's request for costs and attorney fees for further consideration.
In response, the Attorney General petitioned this Court for a writ of supervisory control asking that the District Court's writ of mandamus be dissolved. Mr. Huntley filed a brief on behalf of the First Judicial District Court and counsel for Mr. Huntley argued. For convenience we will refer to the Respondent as Mr. Huntley. As custodian of the election process, the Secretary of State intervened on behalf of Montana voters. On March 29, 1990, this Court issued a writ of supervisory control reversing and vacating the District Court's ruling. Because of the impending filing dates, we reserved our written opinion until a later date.
Should the Montana Supreme Court accept jurisdiction and issue a writ of supervisory control when the District Court's In considering whether to accept jurisdiction under a writ of supervisory control, this Court has always proceeded on a case-by-case basis and has granted the writ in diverse circumstances. We have issued the writ to further judicial economy and to prevent procedural entanglements. In many cases we have issued the writ to prevent an injustice to the petitioner which would arise if the petitioner were forced to await appeal. Often the particular facts of the case required immediate review to prevent a gross injustice or to prevent deprivation the petitioner's fundamental rights while awaiting appeal. See State v. District Court of the Eighth Judicial Dist. (1985), 217 Mont. 106, 114, 703 P.2d 148, 153-54.
interpretation of Art. VII, Sec. 7 and Sec. 8, Mont. Const., required judicial elections with a filing deadline of March 30, 1990?
The present case does not fit squarely into any of the previous situations in which we have granted supervisory control. We do believe, however, that it is appropriate. The District Court's decision directly affects Montana voters' constitutional right to elect Supreme Court Justices and District Court Judges. It affects the right of judicial candidates to run for those offices and the right of the current nominees to occupy those offices. The impending filing deadline and the dates of the 1990 primary and general elections make appeal an inadequate remedy. Potential candidates for the offices must know whether they are required to file and whether they must begin their election campaigns. For these reasons, we accept appellate jurisdiction and issue the writ of supervisory control.
Do Art. VII, Sec. 7 and Sec. 8, Mont. Const., require the Secretary of State to place Montana Supreme Court Justice Position Number One, Thirteenth Judicial District Department Four, and Eighteenth Judicial District Department Two on the 1990 ballot when the Governor filled the positions by nominations and the Senate had no opportunity to confirm those nominations?
The following constitutional provisions are at issue in this case. Art. VII, Sec. 7(2), Mont. Const., provides in pertinent part:
Terms of office shall be eight years for supreme court justices [and] six years for district court judges....
Art. VII, Sec. 8, Mont. Const. provides as follows:
(1) The governor shall nominate a replacement from nominees selected in the manner provided by law for any vacancy in the office of supreme court justice or district court judge. If the governor fails to nominate within thirty days after receipt of nominees, the chief justice or acting chief justice shall make the nomination. Each nomination shall be confirmed by the senate, but a nomination made while the senate is not in session shall be effective as an appointment until the end of the next session. If the nomination is not confirmed, the office shall be vacant and another selection and nomination shall be made.
(2) If, at the first election after senate confirmation, and at the election before each succeeding term of office, any candidate other than the incumbent justice or district judge files for election to that office, the name of the incumbent shall be placed on the ballot. If there is no election contest for the office, the name of the incumbent shall nevertheless be placed on the general election ballot to allow voters of the state or district to approve or reject him. If an incumbent is rejected, another selection and nomination shall be made.
(3) If an incumbent does not run, there shall be an election for the office.
We first consider the meaning of the first sentence of subsection (2) of Art. VII, Sec. 8, Mont. Const. which states:
If, at the first election after senate confirmation, and at the election before each succeeding term of office, any candidate other than the incumbent justice or district judge files for election to that office The Attorney General argues that the plain language of the sentence requires elections for the judicial seats only after Senate confirmation of the nominees. In his interpretation, the language, "and at the election before each succeeding term of office," is a subordinate clause referring to the phrase "at the first election after senate confirmation." Because the nominations have not been presented to the Senate, and therefore have not been confirmed, he argues that there should be no election in 1990. Thus, if confirmation does not take place until the legislature meets in 1991, the plain language requires the first elections to take place in 1992.
the name of the incumbent shall be placed on the ballot.
In contrast, Mr. Huntley argues that the plain language mandates an election on the expiration of every judicial term. He understands the sentence to refer to two different situations. The first is covered by the clause "at the first election after senate confirmation." He points out that it is set off by commas, and, therefore, is independent of the second clause, requiring mid-term appointees confirmed by the Senate to run at the next general election for the unexpired term. The second situation is covered by the clause "at the election...
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