Yunker v. Murray, 13486
| Decision Date | 14 September 1976 |
| Docket Number | No. 13486,13486 |
| Citation | 33 St.Rep. 856,170 Mont. 427,554 P.2d 285 |
| Parties | Carey Matovich YUNKER, Plaintiff and Petitioner, v. Frank MURRAY, Secretary of State of the State of Montana, in his capacity as Secretary of State of the State of Montana, et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Daniel J. Shea (argued), Missoula, for petitioner.
Robert L. Woodahl, William J. Anderson (argued), Helena, for respondents.
This is an original proceeding seeking a declaratory judgment that each of the three district judges of the Thirteenth Judicial District of Montana is an 'incumbent' within the meaning of Article VII, section 8, 1972 Montana Constitution and must run on a 'retain or reject' ballot in the general election pursuant to section 23-4510.2, R.C.M.1947.
The petition was filed on behalf of Carey Matovich Yunker, a registered voter in precinct 59, Yellowstone County, Montana, within the Thirteenth Judicial District. A copy of the complaint for declaratory judgment was attached to the petition filed herein.
The matter was set for adversary hearing and notice given to the Hon. Frank Murray, Secretary of State, and to the three district judges of the Thirteenth Judicial District. Notice was not given to the clerk and recorder of each of the five counties comprising the Thirteenth Judicial District named as defendants. Briefs were filed by petitioner, the secretary of state, and two of the three district judges of the Thirteenth Judicial District.
At the time of adversary hearing counsel appeared and presented oral argument on behalf of petitioner and on behalf of the secretary of state. As we understand it, these attorneys stipulated that procedurally the secretary of state admitted the essential factual allegations of the petition and complaint but not the legal conclusions, agreed on the issue presented, and requested this Court to render forthwith a declaratory judgment, in view of the time element involved. This Court took the matter under advisement.
We accept jurisdiction of this declaratory judgment action on the basis set forth and under authority of Forty-Second Leg. Assembly v. Lennon, 156 Mont. 416, 481 P.2d 330.
We do not consider the clerks and recorders of the five counties of the Thirteenth Judicial District necessary parties to this action and order all stricken as defendants herein. The statutory duty of prescribing the form of ballot is vested in the secretary of state. Section 23-3517(3), R.C.M.1947. His presence as a party herein renders unnecessary the joining of county election officials.
Under the circumstances of this case, a bona fide justiciable controversy for declaratory judgment has been presented to us for determination. Here we have a complaint for declaratory judgment; a stipulation in open court that the essential facts are undisputed and that procedural irregularities are waived by the secretary of state; an admission by two of the three district judges in their brief that 'the facts, issues, and law are now squarely before this Court'; and an agreement on the specific issue to be decided under the facts. Under these circumstances we will treat the stipulation and admissions as responsive pleadings to the complaint and consider the case ready for adjudication.
The factual background will illuminate the issue presented for decision. Prior to 1961 district court judgeships in multijudge judicial districts were not designated or identified as separate offices. Each candidate, whether incumbent or challenger, ran against the field rather than against a particular individual for a designated judgeship. In a three judge district, for example, the three candidates receiving the highest number of votes in the general election were declared elected to the three judgeships to be filled.
In 1961 the legislature changed this system by amending section 23-2001 through 23-2003, R.C.M.1947, (later replaced by section 23-4501, R.C.M.1947). The new legislation provided that each district judgeship in a multi-judge judicial district was to be assigned a number and each became a separate judicial office. At that time the three district judgeships in the Thirteenth Judicial District were assigned numbers according to the seniority of the three district judges. Thus the judgeship held by Judge Derry became Department #1; that of Judge Fenton became Department #2; and that of Judge Sande became Department #3.
This situation continued until the retirement of Judge Derry in 1967. At that time by court rule in the Thirteenth Judicial District, Judge Fenton became the senior district judge in point of service and succeeded to Department #1; Judge Sande to Department #2; and Judge Luedke, appointed to succeed Judge Derry, to Department #3.
The secretary of state, however, retained the original department designation and so far as his election records were concerned Judge Fenton remained in Department #2, Judge Sande in Department #3, and Judge Luedke succeeded to Department #1.
In 1969 Judge Fenton died and Judge Wilson was appointed to succeed him. The local district court rule resulted in an order being entered assigning Judge Sande to Department #1, Judge Luedke to Department #2, and Judge Wilson to Department #3.
The secretary of state's election records retained the original designations and showed Judge Luedke in Department #1, Judge Wilson in Department #2, and Judge Sande in Department #3.
In the 1972 election the records in the secretary of state's office and in the court records of the Thirteenth Judicial District indicated this situation:
Thirteenth Judicial
Secretary of State District in Billings
------------------ --------------------
Dept. #1 Judge Luedke Judge Sande
Dept. #2 Judge Wilson Judge Luedke
Dept. #3 Judge Sande Judge Wilson
Confusion resulted in connection with filings by challengers. One challenger filed according to the Thirteen Judicial District department numbers, rather than according to the department numbers in the election records in the secretary of state's office. This resulted in his filing against the wrong judge. The error was discovered before the filing deadline and the filing was amended accordingly.
This election year, according to the Billings judges, they decided to file according to the department over which each presided as reflected in the court records of the Thirteenth Judicial District in Billings, to avoid the confusion that existed in 1972. The records in the secretary of state's office were conformed to those department numbers used in the Thirteenth Judicial District. Accordingly, Judge Sande filed for Department #1, Judge Luedke for Department #2 and Judge Wilson for Department #3.
However, prior to the election this year, the 1972 Montana Constitution had been adopted and the election laws pertaining to district judges changed. The 1972 Montana Constitution required all unopposed incumbent district judges to run on a 'retain or reject' basis. Article VII, Section 8(2), 1972 Montana Constitution; Keller v. Smith, 33 St.Rep. 828, Mont., 553 P.2d 1002. A form of ballot was provided to implement this constitutional provision by the 1973 legislature. Section 23-4510.2, R.C.M.1947; Keller v. Smith, supra.
The situation, in a nutshell is that each of the three judges in the Thirteenth Judicial District was elected in 1972 to a four year term in a different department or judgeship than that for which they are running unopposed in 1976. The question for determination is whether each is an 'incumben...
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