Diemer v. Carlson

550 N.W.2d 875, 1996 Minn. LEXIS 392, 1996 WL 355073

• Court: Supreme Court of Minnesota
• Decided: June 28, 1996
• Docket: C4-96-873
• Status: Published

Opinions

OPINION

KEITH, Chief Justice.

On petition of Charles Diemer filed pursuant to Minn.Stat. § 204B.44, we exercise our original jurisdiction to consider the recurring question of the authority of the governor to appoint a qualified person to fill a vacancy created by the retirement of a judge, in this case the Honorable Gerald W. Kalina. Petition denied.

Judge Gerald W. Kalina, having served as a judge of the Dakota County Court for the period from 1972 to 1983, was appointed as a district judge of the First Judicial District on April 25, 1983. He was thereafter elected to that position in the general election of 1984 and again in the 1990 general election. His current term will expire on January 6, 1997. By letter dated February 20, 1996, Judge Kalina submitted his resignation to Governor Arne H. Carlson, announcing his intention to retire from judicial office on August 31,1996. On February 22, 1996, the governor issued an order directing the retirement on the date specified by Judge Kalina and filed the order on that same date in the Office of the Secretary of State, Joan Anderson Growe.¹ Minn. , subd. 2. By notice of appointment also filed with the secretary of state on May 17, 1996, the governor appointed Rex D. Stacey as judge of the First Judicial District, effective September 3, 1996. The secretary of state has indicated that she does not intend to designate the office on the ballot in 1996.

The petitioner seeks an order of this court declaring that the appointment by the governor of a successor to Judge Kalina is invalid and directing the secretary of state to place the Kalina seat on the ballot in 1996. He contends that the action of the governor in appointing a successor to the Kalina seat is contrary to the clear constitutional mandate for the election to judicial office, relying upon Page v. Carlson, 488 N.W.2d 274 (Minn. 1992). He urges this court to adopt what he characterizes as a “bright line rule” to define and limit the circumstances in which the governor’s power of appointment may be exercised. For the reasons which follow, we decline the invitation to engage in expansive and gratuitous judicial construction of unambiguous provisions of the Minnesota Constitution as implemented by the legislature.

Implicated in these proceedings are two provisions of the Minnesota Constitution:

Sec. 7. Term, of office; election. The term of office of all judges shall be six years and until their successors are qualified. They shall be elected by the voters from the area which they are to serve in the manner provided by law.

Sec. 8. Vacancy. 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 until a 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 the appointment.

Minn. Const, art. VI, §§ 7, 8.

We had occasion to comment about the nature of the appointment authority conferred upon the governor by the constitution ² in State ex rel. Hennepin County Bar Assoc. v. Amdahl, 264 Minn. 350, 119 N.W.2d 169 (1962) as follows:

[W]e 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.

264 Minn. at 353, 119 N.W.2d at 171.

Minn.Stat. § 490.126, subd. 2, relating to the manner in which vacancies are effected, represents the legislative implementation of article VI, section 8 and provides:

Subd. 2. Vacancies. Any judge may make written application to the governor for retirement. The governor thereupon shall direct the judge’s retirement by written order which, when filed in the office of the secretary of state, shall effect a vacancy in the office to be filled as provided by law.

Minn.Stat. § 490.126, subd. 2.

By its terms, section 490.126, subd. 2 requires the governor to whom an application for retirement is made to direct that retirement by written order. The filing of that order with the secretary of state is designated by statute as the operative act by which a vacancy in judicial office is effected. While the resignation may be effective at a specified future date, the “vacancy” is identified upon the filing of the governor’s written order for retirement. In the matter at issue, the vacancy in the office, effective on August 31,1996, was identified on February 22,1996. Minn. Const. art. VI, § 8, in the event of a vacancy, does not merely authorize, but mandates the governor to appoint a qualified person to fill the vacancy until a successor is elected and qualified. The governor did so on May 17, 1996 and, as a result, a vacancy no longer exists. By operation of the same constitutional provision, the appointee is to serve until a successor is elected and qualified after a general election held more than one year after the appointment — the 1998 general election. This analysis comports with our opinion in Nelson v. Quie, 299 N.W.2d 119 (Minn.1980).³

To the extent petitioner contends that this court’s decision in Page v. Carlson, 488 N.W.2d 274 (1992) requires a different result, the argument misses the mark: that decision addressed an entirely different issue, namely, the propriety of a gubernatorial order extending a justice’s term of office pursuant to Minn.Stat. § 490.124, subd. 2 (1990). The court held that, under the circumstances unique to the retirement eligibility of the incumbent justice, the executive order conflicted with the clear and unambiguous language of Minn. Const, art. VI, § 9 which authorizes the “extension of the term of any judge who becomes eligible for retirement within three years after expiration of the term for which he is selected.” The question of whether a “vacancy” existed was not advanced by the parties or addressed by the court.

Moreover, to the extent the decision acknowledges our responsibility “to give effect to the clear, explicit, unambiguous and ordinary meaning of the language”⁴ of a constitutional provision, its dictates are directly contrary to the petitioner’s suggestion that we engage in judicial revision to establish the so-called “bright line rule.”

Finally, while the Page decision restates the constitutional requirement that judges be elected by the voters,⁵ article VI, section 7, the appointment process in the event of a vacancy neither frustrates nor eliminates that obligation — the appointed judge must still stand for election, albeit at a later time rather than immediately.⁶ The appointment in the event of a vacancy serves the useful purpose of maintaining continuity in office and availability of judicial services which might otherwise be severely curtailed by the delay occasioned by the election and qualification of a successor. Were this court to engage in the expansive rather than literal reading of the provisions at issue, as petitioner proposes, the result would be that the judicial office presently held by Judge Kalina would become and remain vacant for the period from September 1, 1996 to January 7, 1997, the date on which successful candidates at the 1996 election take office. No such intention is expressed or implied in the constitution or statutes — on the contrary, it is precisely that potential which the provisions are designed to avoid.

Because we conclude that the governor was within his authority in appointing a successor to fill the vacancy which would occur on the retirement of Judge Kalina, we deny the petition for relief.⁷ Petition denied.

1 . In addition, the governor gave notice to this court of the retirement, Minn.Stat. § 2.722, subd. 4 (1996). In response, the court certified the vacancy to the governor. On March 4, 1996, the governor provided notice of the retirement and certification of the vacancy to the Commission on Judicial Selection. Minn.Stat. § 480B.01, subd. 9 (1996).

2 . At the time the Amdahl matter was considered, the legislature had not exercised its prerogative to implement the constitutional provision of then article VI, section 11, amended in 1956, addressing the question of vacancy in judicial office. In Amdahl, the incumbent, the Honorable Harold N. Rogers, judge of the district court, had filed for reelection in the 1962 primary election and had been nominated without opposition. One week before the general election on October 31, 1962, the incumbent judge died and the governor appointed Douglas K. Amdahl on November 2, 1962 to fill the vacancy. However, in the time between Judge Rogers’ death and the election, Donald Barbeau filed by petition for the office. Because he was the only candidate on the ballot, Barbeau was "elected” to the office. Neither Amdahl nor Barbeau challenged the authority of the governor to appoint Judge Amdahl for the period from Judge Rogers’ death to the beginning of the new term, January 7, 1963 — the proceeding in quo warranto was commenced for the sole purpose of ascertaining entitlement to hold the office after January 7, 1963. We held that the appointee was entitled to hold the office until the next general election more than one year after his appointment. The election of Barbeau was declared a nullity.

3 .Judge Herbert Wolner had been elected to a term which was-to expire on January 6, 1981. However, because he reached his mandatory retirement age of 70 on October 21, 1980, Judge Wolner was required to retire on October 31, 1980, Minn.Stat. §§ 490.121, subd. 12 and 490.125 (1980). By letter of July 7, 1980, the judge submitted his written application for retirement to the governor. Qn July 18, 1980, the governor issued the written order directing Judge Wolner's retirement, effective on October 31, 1980, and filed it with the secretary of state. However, before the order was filed, 13 individuals filed as candidates for election to the office held by Judge Wolner. In a declaratory judgment action commenced in the district court, the court enjoined cancellation of the primary and general election, but, at the same time, refused to enjoin the gubernatorial appointment.

We held that the retirement of Judge Wolner created a "vacancy” within the meaning of Minn. Const. art. VI, § 8 as of October 31, 1980, that the appointment of a qualified person is the governor's constitutional duty and that the appointed person was to serve until a successor is elected and qualified after the 1982 general election. There was "no occasion to vote for candidates for this office at the general election to be held on November 4, 1980." Nelson v. Quie, 299 N.W.2d at 120.

The attorney general has issued two opinions of recent origin on this question which vary in their interpretation of the then existing constitutional and statutory provisions. Op.Att’y Gen. No. 184d (July 17, 1990); Op.Att’y Gen. 141d-2 (June 20, 1986). Although they are entitled to careful consideration, they are not binding on the court particularly where, as here, the issue presented was earlier decided in and is now governed by Nelson v. Quie. See Village of Blaine v. Independent School Dist. No. 12, 265 Minn. 9, 19, 121 N.W.2d 183, 191 (1963).

4 . See Rice v. Connolly, 488 N.W.2d 241, 247 (Minn.1992) (citing State ex rel. Gardner v. Holm, 241 Minn. 125, 129, 62 N.W.2d 52, 55 (1954)). See also State ex rel. Putnam v. Holm, 172 Minn. 162, 215 N.W. 200 (1927).

5 . Page v. Carlson, 488 N.W.2d at 278-79, citing State ex rel. LaJesse v. Meisinger, 258 Minn. 297, 299, 103 N.W.2d 864, 866 (1960) and Enger v. Holm, 213 Minn. 154, 157, 6 N.W.2d 101, 102 (1942).

6 . In State ex rel. Hennepin County Bar Assoc. v. Amdahl, we noted with approval the 1956 amendments to the judiciary article, among which was the extension of the length of time between the appointment and the election of a successor. Minn. Const. art. VI, § 10 (1955) provided that the "successor shall be elected at the first annual election that occurs more than thirty days after the vacancy shall have happened.” Minn. Const, art. VI, § 11 (1956) provided for, and continues to require, the election "at the next general election occurring more than one year after such appointment.” We stated as follows:

The complexity of modern society makes it imperative that ample opportunity be given the people to evaluate the qualifications of candidates for judicial positions. Clearly, that is what the new judiciary article intended to accomplish.

264 Minn. at 357, 119 N.W.2d at 173.

7 . The respondents have filed a motion to dismiss the petition with prejudice. There is no basis for a dismissal of the petition and we have addressed the merits of the arguments advanced.