Scheibel v. Pavlak

282 N.W.2d 843, 1979 Minn. LEXIS 1500

• Court: Supreme Court of Minnesota
• Decided: May 11, 1979
• Docket: 49713
• Status: Published

Opinions

SHERAN, Chief Justice.

This is an appeal from an order of the District Court of Ramsey County dismissing proceedings instituted by voters residing in House of Representatives District 67A to contest the election of Robert Pavlak to the office of representative in that district on November 7, 1978. Contestants charged Mr. Pavlak with knowingly permitting the distribution of a campaign brochure on his behalf which contained false information with respect to the voting and attendance record of the incumbent, Arnold Kempe.

District 67A of the Minnesota House of Representatives consists of eight precincts in St. Paul proper, Ramsey County, and four precincts in West St. Paul, Dakota County. Mr. Pavlak was elected to that office in 1966, 1968, 1970 and 1972 as an Independent-Republican. In 1974 Mr. Kempe, running as a member of the Democratic Farmer Labor Party, defeated Mr. Pavlak by 200 votes and retained that office until the November 7, 1978, election when Mr. Pavlak was again his opponent. Early in October, 1978, Mr. Pavlak was invited to an interview by William G. Sumner, Editor of the St Paul Dispatch. Mr. Pavlak brought with him to that interview records which he had compiled of Mr. Kempe’s attendance and his roll call voting absences in the House of Representatives during the years 1977 and 1978. Those records showed that Mr. Kempe missed over 300 roll call votes during that period. Mr. Sumner was provided with a photostatic copy of the research done by Mr. Pavlak and was warned by Mr. Pavlak that there might be errors in his computation.

Several weeks later on Saturday, November 4, 1978, about 8:00 a. m. Mr. Pavlak read the editorial in the St. Paul Pioneer Press-Dispatch which stated in part: “We have seen nothing to dispute his [Mr. Pav-lak’s] research report that shows the incumbent voted four times in 1967-68 — this out of more than 300 opportunities.” Mr. Pav-lak immediately called the Dispatch, was unable to reach Mr. Sumner but advised the city desk that there was an error in the editorial.

The actual error in the editorial was the claim that Mr. Kempe participated in only four out of 329 roll call votes in two sessions, whereas he had cast 1,469 roll call votes and missed only 329. This, however, was not the error which Mr. Pavlak wished to call to Mr. Sumner’s attention. The error which he wished to call to Mr. Sumner’s attention was the fact that the editorial referred to the year 1967-68 rather than 1977-78. It was also his intention to secure an explanation of the editorial’s reference to Mr. Kempe’s four votes out of 300 opportunities which Mr. Pavlak stated he did not understand and no one at the paper was available to explain. He left his name and number so that Mr. Sumner could call him back.

Although Mr. Pavlak did not understand the editorial’s reference to four votes out of 300 opportunities, he testified that he accepted that information because he believed the newspaper “was privileged to know something” that he did not know. Although he had not furnished Mr. Sumner with that information he relied on the fact that the newspaper had a staff of editorial writers and reporters to do their own research.

Between 9:00 a. m. and 10:00 a. m. on Saturday, November 4, Mr. Pavlak’s campaign manager, James Aydt, called and, characterizing the editorial as an endorsement, asked Mr. Pavlak whether it should be reprinted. Mr. Pavlak referred him to Robert Larson who was handling the preparation of campaign literature, pointing out that there was an error with respect to the paper’s reference to the years 1967 and 1968. He did not discuss the editorial’s reference to four votes out of 300 opportunities. Mr. Aydt thereupon called Mr. Larson and discussed the editing, reprinting and distribution of the editorial. They agreed on the marginal statement “Even with the papers ‘typo’ the message about our opponent is clear!” The typographical mistake to which Mr. Aydt referred in that conversation was the wrong year. Mr. Larson, on the other hand, testified that the only mistake he was flagging was the fact that the editorial credited Mr. Kempe with four votes and Mr. Larson thought Mr. Sumner actually meant by that particular statement “No times, this out of more than 300 opportunities” because the whole thrust of the campaign, Mr. Larson stated, ultimately boiled down to the 300 missed votes. In short, there is no evidence that either Mr. Pavlak, Mr. Aydt or Mr. Larson intended to alert the public to the possibility that the statement concerning Mr. Kempe’s voting record might be false.

That afternoon Mr. Aydt took the editorial with the marginal comment and the relevant paragraph circled in ink for reprinting. He had 6,000 copies prepared and available by 5:30 p. m., at which time he delivered them to Mr. Pavlak.

Between 5:30 p. m. Saturday, November 4, and 8:00 p. m. on Monday, November 6, between 1,800 and 1,900 reprints and other materials were distributed in three St. Paul precincts and two West St. Paul precincts, including several hundred placed on the windshields of cars of those attending four area churches on Saturday afternoon and Sunday morning.

On Monday, November 6, a second editorial appeared in the St. Paul Dispatch stating—

“ * * * we erred in our endorsement of Robert Pavlak, IR, who is seeking to unseat Rep. Arnold Kempe in 67A. Pavlak’s research report stated Kempe voted four times during the years 1977-78, not, as incorrectly reported, 1967-68.”

Mr. Kempe testified that he read the November 6 editorial in the evening Dispatch, which prompted him to find and for the first time read the editorial in the November 4 Dispatch. At 5:30 p. m. Monday he called Mr. Tom Carlin, the publisher, and advised Carlin that the editorial was a fraud, that the reporters knew it was wrong and demanded an immediate retraction. That same evening, David Nitti, Mr. Kempe’s campaign manager, brought to Mr. Kempe’s home a package of Mr. Pavlak’s campaign material which included a copy of the edited November 4 editorial. Mr. Kempe testified that to the best of his recollection this was the first time he had seen it. Although Mr. Kempe could not recall having read the original editorial on November 4, and testified that he rarely read the editorial page, three of his campaign workers testified that they had called Mr. Kempe’s attention to the editorial on Saturday the 4th and Sunday the 5th. David Nitti stated that he met Mr. Kempe on the street on Saturday and Mr. Kempe had expressed the opinion that the endorsement of Mr. Pavlak was damaging. Mr. Nitti told Mr. Kempe that the paper misrepresented Mr. Kempe’s voting record.

James Scheibel, one of the contestants, was not sure what day he had spoken to Mr. Kempe about the November 4 editorial but was of the opinion it could have been on Sunday the 5th. Thomas Quinlan talked to Mr. Kempe Saturday morning the 4th, after seeing the endorsement in the morning edition of the Dispatch, and testified “We probably did discuss the error in the newspaper concerning the voting record, too.” It is the contention of the respondent that having knowledge of the November 4 editorial on the day it appeared, it was Mr. Kempe’s duty to mitigate the damage by immediately demanding a retraction. Not having done so, it is argued that Mr. Kempe himself regarded the editorial as being neither a serious nor a material violation of the election law.

On Tuesday, November 7, 1978, Mr. Pav-lak was elected by a margin of 321 votes, 4,454 to 4,133.

On November 24, 1978, a group of District 67A voters brought suit to vacate the election on the grounds that the reprint contained “false information” within the meaning of section 210A.04 of the Minnesota election law.¹ According to Minn.St. 209.02, any violation of an election law provision such as § 210A.04 is grounds for nullifying an election if it is “deliberate, serious, and material.” ²

From December 4 through December 7, the parties, acting pursuant to Minn.St. 209.02, subd. 4a,³ chose a mutually acceptable district judge to hear the case by striking off names of available judges until one remained. Judge Robert Breunig of the First Judicial District was selected.

Trial was held during the end of December, 1978, and the trial judge issued his dismissal of the contest on January 2, 1979. The contestants appealed on January 12, 1979, as provided for by Minn.St. 209.09.⁴ According this case the expedited consideration required by Minn.St. 209.09, this court heard oral argument on March 5,1979. The argument was primarily on the merits of the case; the parties did not brief nor argue directly the constitutional propriety of this court acting in this matter. However, research conducted by the court in its subsequent consideration of the case revealed a substantial issue of whether the court was free to take any action at all. Accordingly, the court issued its order of April 26, 1979, providing the parties an opportunity to present their views on the question. This hearing was held on May 3, 1979.

I. To begin with, there is no question of the Legislature’s final authority in this matter. The constitutional directive is explicit:

“Each house shall be the judge of the election returns and eligibility of its own members.” Minnesota Constitution, Article IV, Section 6.

The privilege of a legislature to judge the eligibility of its own members is longstanding, dating back to 1586, when the House of Commons resisted an attempt by the Crown to have the Lord Chancellor determine a member’s qualifications.⁵ This legislative prerogative has been universally adopted in America, and now every state constitution contains a provision similar to Minnesota’s Article IV, Section 6.⁶ There are good reasons for such widespread acceptance of the principle, often framed in terms of legislative self-protection. Judge Story’s comment is illustrative:

“It is obvious, that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members * * *. The only possible question on such a subject is, as to the body, in which such a power shall be lodged. If lodged in any other, than the legislative body itself, its independence, its purity * * * may be destroyed * * *. No other body, but itself, can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights, and sustain the free choice of its own constituents. Accordingly, the power has always been lodged in the legislative body by the uniform practice of England and America.” ⁷

Since the very justification for this legislative authority is to resist encroachment, a necessary implication is that it is an absolute grant of constitutional power which may not be delegated to or shared with the courts. So the authorities universally hold. Cases collected at Annotation, 107 A.L.R. 205.⁸

The statutes regulating election contests in Minnesota are predicated on this principle of legislative authority. Minn.St. 209.09 specifies what shall follow upon the rendering of a Supreme Court decision in a contest of a legislative election: “A copy of the decision shall be forwarded to the chief clerk of the house of representatives or the secretary of the senate, as appropriate.” Minn.St. 209.10, subd. 2 then establishes procedures to be followed by the Legislature in making the ultimate determination.⁹

In short, we have no jurisdiction to issue a final and binding decision in this matter, and our opinion by statute will be and by the Minnesota Constitution must only be advisory to the House of Representatives.

II. The preeminence of legislative authority in this matter raises the issue of whether this court may render any opinion on the merits of this dispute without contravening well-established constitutional principles. Courts have traditionally considered themselves foreclosed from offering opinions that were not binding upon the parties. In the United States this tradition dates back at least to 1790, when the justices of the United States Supreme Court declined to respond to President Washington’s request for their suggestions on the organization of the judicial system.¹⁰ Since then, a small minority of jurisdictions have provided for advisory opinions by express constitutional provision, and there are certain other deviations.¹¹ Minnesota has adhered to the majority tradition in a series of cases consistently declining invitations from various sources to issue less than ultimate decisions on a variety of issues. In the Matter of the Application of the Senate, 10 Minn. 78 (Gil. 56) (1865); Rice v. Austin, 19 Minn. 103 (Gil. 74) (1872); State v. Dike, 20 Minn. 363 (Gil. 314) (1874); State ex rel. Young v. Brill, 100 Minn. 499, 111 N.W. 294 (1907); Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 290 N.W. 802 (1940); Minnesota Civil Liberties Union v. State, 302 Minn. 216, 224 N.W.2d 344 (1974).

The initial case in this line, In the Matter of the Application of the Senate, supra, decided in 1865, actually declared unconstitutional on separation of powers principles a statute authorizing advisory opinions. To the extent that the statutes bringing the instant case before us do likewise, they may suffer from a similar infirmity. That these Minnesota decisions preclude out of hand our acting on this matter is not certain, however. For one thing, one of the major reasons courts have felt unable to issue advisory opinions is that often what is called for is speculative resolution of a hypothetical dispute which has not yet arisen in fact. Premature advice on the constitutionality of legislative proposals falls into this category.¹²

Lack of a concrete controversy is not a problem in this case — here are two strongly adversary parties involved in a far from hypothetical dispute. Present in this case is only the other disfavored aspect of advisory opinions — the lack of finality of the judicial resolution. It is often difficult to separate these two underlying justifications for judicial refusals to render advisory opinions, and the judicial language on the subject, including that of the Minnesota cases cited above, is imprecise. Nevertheless, we are convinced that lack of finality alone is a significant, if not dispositive, factor.¹³

Secondly, whether we are free to act in this matter is also affected by the role played by this court in prior contests for legislative office. We have found no case in which this court has rendered an advisory opinion of the type requested here to the Legislature. This is not reflective of a lengthy tradition, however; the current legislative scheme outlined above was enacted in 1971. Prior to that time the Legislature, perhaps in recognition of its ultimate decision-making power and of the fact that it was in this area treading close to the line of requesting advisory opinions, required of the courts only a conclusion on which candidate had received the greater number of legal votes, with other issues to be deferred until resolution by the Legislature.¹⁴ Even this limited judicial action, however, was subject to subsequent legislative reversal. It was possible, of course, for the merits of an election contest to involve which candidate had in fact received the greater number of votes, as, for example, when the outcome depended on whether certain ballots were legal and countable. This court has acted in such cases in spite of the fact that its decision was advisory only. E. g., Johnson v. Swenson, 264 Minn. 449, 119 N.W.2d 723 (1963); Fitzgerald v. Morlock, 264 Minn. 520, 120 N.W.2d 339 (1963). Though the court in those cases did not address the advisory opinion issue, it may have considered it less objectionable to offer advice on the narrow legal question of what constitutes a valid ballot than, as required here, to cast judgment upon the actions and state of mind of the elected official himself.¹⁵

Countervailing these two uncertainties is the fact that the applicability of the usual prohibition on advisory opinions to election contests has been faced squarely by other jurisdictions in decisions we find persuasive. In Dinan v. Swig, 223 Mass. 516, 112 N.E. 91 (1916), the court, after acknowledging the exclusive legislative authority to judge the eligibility of its own members, stated that therefore to require a judicial opinion in the case—

“ * * * would be imposing upon the judicial department of the government the investigation of a matter not resulting in a judgment, not finally fixing the rights of parties, and not ultimately determining a state of facts. It would subject a proceeding arising in a court to modification, suspension, annulment or affirmation by a part of the legislative department of government before it would possess any definitive force.

Manifestly, this is in contravention of art. 30 of the Declaration of Rights, which marks the entire separation of the legislative and judicial departments of the government.” 223 Mass. 520, 112 N.E. 94.

See, also, State ex rel. Smith v. District Court, 50 Mont. 134, 145 P. 721 (1914).¹⁶ Later decisions have reaffirmed the vitality of this earlier reasoning. Combs v. Groener, 256 Or. 336, 472 P.2d 281 (1970).

As with Article 30 of the Massachusetts Declaration of Rights cited in Dinan, Minnesota has an express constitutional provision mandating the separation of governmental powers:

“The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.” Article III, Section 1.

This structural principle is jeopardized by the case before us.¹⁷ The judicial branch is unconditionally restrained from asserting a constitutional role in such a case and is reduced to carrying out such ministerial functions as the Legislature may request by statute. Such subordinate status in the fulfillment of a constitutional responsibility emphatically assigned to another branch of government is not in keeping with the rendition of final decisions which is our own separate and co-equal constitutional responsibility.

The foregoing reasoning does not apply to a trial court acting pursuant to Minn.St. 209.10, subd. 1. The trial judge selected by the parties to the election contest acts, in effect, as an agent of the legislative body involved. He hears and directs the recording of the evidence; he makes findings and conclusions with respect to the contest; he submits the record and his recommendations to the legislative body involved. Since he is acting, in practical effect, as a legislative agent for the purposes of the case, the legislative body is absolutely free to accept or reject his findings and conclusions. Respect for his training and experience as an objective fact-finder chosen by the parties and deference to his views on the credibility of the witnesses whom he has observed under direct and cross-examination can be anticipated, but it is not required. So long as it acts within constitutional limits, the authority of the House of Representatives to determine the qualifications of Mr. Pav-lak to his seat is not subject to judicial control. We have in the past acceded to the process established by Minn.St. 209.10, and it seems to have served a useful purpose without disrupting the appropriate relationship between the Legislature and the courts. State ex rel. Haines v. Searle, 59 Minn. 489, 61 N.W. 553 (1894).

The Supreme Court of Minnesota, on the other hand, cannot and should not act as an agent for the Legislature. Its function is to act independently and with finality. In a case as this, we cannot act independently and with finality. To attempt to do so would be a clear violation of the constitutional directive that the House and Senate be the judges of the qualifications of their members.

In spite of the constitutional reservations expressed above, complete withdrawal from the dispute presented to us does not seem an option available to us at this time. We have heard the case and spent a great deal of time studying and deliberating on its merits before becoming acutely aware of the institutional considerations counselling dismissal. In the meantime the challenged legislator has been seated and voting, and his colleagues and ultimate judges anticipate that some assistance and guidance from us will be forthcoming. The unique necessities of the case move us to offer what we are able in the way of comment and analysis. This we do, reserving until the situation next presents itself a full decision on the propriety of any action in a case of this nature. Our remarks necessarily will be of limited scope and fall short of an opinion on the validity of Mr. Pavlak’s election. We can advise on those matters in which now we have some degree of particular competence; i. e., those issues susceptible to objective determination. We are unable to offer conclusions as to those matters not susceptible to objective determination, in a matter in which our decision be final. The constitutional prohibition on advisory opinions precludes a decision of such dubious permanence.

III. There are basic factual conclusions to be drawn from the record of this case about which certainty is possible and about which a majority of the court is in agreement. They are:

A. In the years 1977-78 Arnold Kempe voted 1,469 of 1,798 roll call votes in the Minnesota House of Representatives.

B. On November 4, 1978, the St. Paul Pioneer Press-Dispatch carried an editorial in which it was stated, in effect, that Mr. Kempe had voted “four times in 1967-68— this out of more than 300 opportunities.”

C. The reference to “1967-68” in the editorial was intended to be “1977-78” and was probably so understood by those who read it. (On Monday, November 6, this “correction” appeared in the St. Paul Dispatch : “Pavlak’s research report stated Kempe voted four times during the years 1977-78, not, as incorrectly reported, 1967— 68.”)

D. Over 6,000 copies of the paper in which this editorial appeared were sold to persons who were eligible to vote in the election district involved.

E. On November 4-6, 1,800-1,900 copies of the November 4 editorial were distributed in the election district by Mr. Pavlak’s campaign workers to prospective voters with this notation in the margin: “Even with the papers ‘typo’ the message about our opponent is clear!” The word “typo” referred to the figures “1967-68” used in the editorial when “1977-78” was intended.

F. By distributing the copies of the November 4 editorial Mr. Pavlak published a statement concerning Mr. Kempe which was false and material to the race for State Representative in District 67A to be decided at the November 7th election.

G. Mr. Pavlak received 4,454 votes at the November 7th election; Mr. Kempe received 4,138. If a net of 161 voters were caused to switch their votes from Mr. Kempe to Mr. Pavlak because of the distribution of the false statement on November 4-6, Mr. Pavlak’s action in publishing false statements produced his election.

In view of the above, it is our conclusion that Mr. Pavlak violated Minn.St. 210A.04 and that this violation was “deliberate, serious and material” within the meaning of Minn.St. 209.02. It was deliberate in the sense that the distribution of the statement as worded was intentional and was intended to affect the voting at the election. Effertz v. Schimelpfenig, 207 Minn. 324, 291 N.W. 286 (1940). It was serious because the distribution of 1,800-1,-900 reprints in a single legislative district is a far from trivial amount. Schmitt v. McLaughlin, 275 N.W.2d 587 (Minn.1979). It was material because voting is the essence of a representative’s position, and attacking voting performance is germane to one’s conduct in that position.

IV. However, conclusions A-G above do not resolve this case. Ultimately, this contest reduces to a question of Mr. Pavlak’s state of mind: did he act with “good faith”? This remaining and dispositive issue is not susceptible to scientific resolution and a consensus of the court thereon is not possible. As to it, we offer only the limited observations we are able to make with confidence.

Whether the standard is a constitutional one either mandated by or analogized from the New York Times v. Sullivan [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] line of cases, or a statutory one arising from Minn.St. 210A.38 and our decisions thereunder, especially Schmitt v. McLaughlin, supra,¹⁸ we are of the opinion that this election should not be set aside if Mr. Pavlak acted in good faith. If his purpose was to deceive or mislead the electorate and receive undeserved support thereby, the office should not be his. Conversely, if he thought the general message conveyed by the reprint was a truthful one which he had tried to communicate all along, his election should not be disturbed. This was a test emphasized in the findings by the trial judge. Mr. Pavlak testified that his intent in distributing the editorial was merely to corroborate his claim that Mr. Kempe has missed a significant number of roll call votes. The district judge, chosen by the parties themselves, who had the opportunity of hearing and observing this testimony as well as that of the other witnesses, accepted this explanation.

There is an additional factor which the Legislature may wish to consider. Mr. Pavlak’s false statement may or may not have influenced the election. We do not know and have no basis in the evidence for ascertaining the net effect of the circulation of the reprints by Mr. Pavlak or those who acted for him. We can assume, of course, that Mr. Pavlak thought that the distribution of the reprints would help his chances for election. Whether it did so in fact is nevertheless uncertain. The voters in District 67A were exposed to the same misinformation by reason of the circulation of the November 4 issue of the newspaper in which the editorial first appeared and the November 6 issue of the Dispatch which repeated the basic charge while correcting the errant date. Mr. Pavlak cannot be held responsible for this diffusion of false information. It can be fairly assumed that some prospective voters read the reprints who did not read the original editorial or the correction and that still others were more impressed with the misinformation by its repetition than would otherwise have been the case. But whether these facts account for a net shift of 161 votes — or any votes— from Mr. Kempe to Mr. Pavlak is something that we do not know and cannot ascertain from the record.

V. It is our hope that the constitutional responsibilities of the House of Representatives can more expeditiously be carried out in light of the considerations we have enumerated. We submit the opinion to that body with the understanding that whether the Supreme Court should henceforth decline jurisdiction in legislative election contests covered by Minn.St. 209.09 in light of Article IV, Section 6 and Article III, Section 1 of the Minnesota Constitution is a question reserved for future decision.

1 . Minn.St. 210A.04, subd. 1, provides: “Every person who writes, prints, posts, or distributes, or causes to be written, printed, posted, or distributed, except by broadcasting, any circular, poster, or other written or printed matter containing false information with respect to the personal or political character or acts of any candidate, which is designed or tends to elect, injure or defeat any candidate for nomination or election to a public office, shall be guilty of a gross misdemeanor.”

2 . Minn.St. 209.02, subd. 1, provides: “Any voter, including a candidate, may contest the nomination or election of any person for whom he had the right to vote, who is declared nominated or elected to the senate or the house of representatives of the United States, to a state, county, legislative, or municipal, or district court office, or the declared result of a constitutional amendment or other question voted upon at an election by proceeding as provided in this chapter. The contest may be brought over an irregularity in the conduct of an election or canvass of votes or on the grounds of deliberate, serious, and material violations of the provisions of the Minnesota election law.”

3 . Minn.St. 209.02, subd. 4a, provides: “In legislative contests, notice of contest shall be filed and served as provided in subdivisions 2 to 4, except that the clerk of district court with whom the notice, and answer, if any, has been filed shall, within three days of receipt of each, submit by certified mail one copy thereof to the chief justice of the supreme court. Upon receipt of the notice of contest, the chief justice shall, within five days, submit to the parties a list of all the district judges in the state, having stricken any judges involved in a trial with which serving as judge in the election contest would interfere and having stricken the name of any judge whose health precludes service as judge in the election contest. The parties shall within two days after receiving the list of judges meet together and, in cases where an unfair campaign practice is alleged, by alternating strikes remove the names of all judges until but one remains who shall then proceed to hear the contest in the manner provided in section 209.10. In cases where no unfair campaign practice is alleged, the parties shall follow the same procedure using only the names of judges of the judicial district or districts covering the area served by the contested office. The judge shall, within 15 days after notice has been filed, convene at an appropriate place within the county, or, if the district includes all or portions of more than one county, a county within the legislative district and hear testimony of the parties, under the ordinary rules of evidence for civil actions. If the contestant does not proceed within the time provided for herein his action shall be dismissed and the judge shall transmit a copy of his order for dismissal to the chief clerk of the house of representatives or the secretary of the senate, as appropriate.”

4 .Minn.St. 209.09 provides: “When an appeal is taken to the supreme court from the determination of the district court in any contest instituted under this chapter, the party appealing shall file in the district court a bond in such sum, not less than $500, and with such sureties, as shall be approved by the judge, conditioned for the payment of all costs incurred by the respondent in case appellant fails on his appeal. The notice of appeal shall be served and filed no later than ten days in case of a general election and no later than five days in case of a primary election after the entry of the determination of the district court in the contest. The return of such appeal shall be made, certified, and filed in the supreme court as soon as practicable and in any event within 15 days after service of notice of appeal. The appeal may be brought on for hearing in the court at any time when it is in session, upon such notice from either party, as the court may determine which notice may be served during term time or in vacation; and it may be heard and determined summarily by the court. The appeal from a determination of an election contest relating to the office of state senator or representative shall take precedence over all other business on the supreme court docket, and shall be disposed of with all convenient dispatch. A copy of the decision shall be forwarded to the chief clerk of the house of representatives or the secretary of the senate, as appropriate.”

5 . Kindregan, The Cases of Adam Clayton Powell, Jr. and Julien Bond: The Right of Legislative Bodies to Exclude Members-Elects, II Suffolk University L.Rev. 58, 63 (1968).

6 . The Legislature’s Power to Judge the Qualifications of Its Members, 19 Vanderbilt L.Rev. 1410 (1966).

7 . Id., at 1412.

8 . A general discussion of the problem can be found in 19 Vanderbilt L.Rev., Id.

9 . Minn.St. 209.10, subd. 2 provides: “In hearing the contest, the house or senate shall proceed as follows:

“(a) At the time appointed, the parties shall be called, and, if they appear, their appearance shall be recorded;

“(b) If the presiding officer be a party, a speaker pro tern shall be elected to preside;

“(c) The contestant’s evidence shall be submitted first, followed by that of the contestee, and the contestant shall open the argument, and close the same after the contestee has been heard;

“(d) The vote upon the contest shall be viva voce, any member may offer reasons for the vote he intends to give, and a majority of the votes given shall decide; but no party to the contest shall vote upon any question relative thereto; and

“(e) The clerk or secretary shall enter the proceedings in the journal.”

10 . Hudson, Advisory Opinions of National and International Courts, 37 Harvard L.Rev. 970, 975 (1924).

11 . Massachusetts, 1780; New Hampshire, 1784; Maine, 1820; Rhode Island, 1842; Missouri, 1865 (repealed 1875); Florida, 1868; Colorado, 1886; South Dakota, 1889; have constitutional provisions authorizing advisory opinions. A few state courts have given advisory opinions when authorized only by statute, and a few advisory opinions have been given without either constitutional or statutory support. Douglas Oil Co. v. State, 81 S.W.2d 1064, 1075 (Tex.Civ.App.1935).

12 . This is the point of view succinctly expressed by Felix Frankfurter in his “Note on Advisory Opinions,” 37 Harvard L.Rev. 1002 (1924).

13 . The Attorney General of the State of Minnesota, through his brief, has offered us a breakdown of the essential elements of a justiciable controversy, based on Seiz v. Citizens Pure Ice Co., supra. The point made is that in each of the cases cited above in which this court has declined to issue an advisory opinion, one of these elements was missing, whereas they are all present in the instant case. We agree that this may be a more difficult case than those cited. However, if constrained by the five Seiz elements, we would point to number 4 — -“the matter must admit of relief by decree or judgment” — as the one absent here. The instant case will not admit of relief by our opinion, but will merely proceed to the House of Representatives.

14 . E. g., Minn.St.1961, § 209.10.

15 . Counsel for contestants has cited to us additional cases in which this court has taken some role in an election contest. However, we find these more readily distinguishable than those cited in the text. In Moe v. Alsop, 288 Minn. 323, 180 N.W.2d 255 (1970), this court appointed a referee to determine the narrow question of length of residency. However, the issue was whether the candidate’s name should be placed on a primary ballot, not, as here, whether an elected official should be removed. In Phillips v. Ericson, 248 Minn. 452, 80 N.W.2d 513 (1957), this court reversed a trial court dismissal of an election contest. However, since trial had not yet been held, this court’s decision caused the case to go back to the trial court, not, as here, to the Legislature for possible reversal. Finally, in State ex rel. Goodwin v. Flahaven and State ex rel. Palmer v. Perpich, 289 Minn. 149, 182 N.W.2d 182 (1971), this court decided that the lieutenant governor could not refuse to seat a senator possessing a certificate of election. The decision was binding upon the lieutenant governor only and did not address the merits of the senator’s eligibility, the court specifically reserving that question for subsequent legislative determination without offering any opinion on it.

16 . Counsel for appellants effectively argues that Dinan and Smith find a trial court precluded from offering an advisory opinion. The rule in Minnesota regarding trial courts is different for reasons explained in the text below. See, also, footnote 17, infra. What is persuasive about Dinan and Smith in regard to the proper role of this court is the reasoning, quoted in the text, that the separation of powers is jeopardized by the kind of advisory opinion requested here. This danger is greater in the case of advisory decisions from a supreme court than from a trial court.

17 . It has been suggested to us that the caveat to Article III, Section 1 — “except in the instances expressly provided in this constitution”— may be applicable because Article IV, Section 6 specifically states: “The legislature shall prescribe by law the manner for taking evidence in cases of contested seats in either house.” The constitutions of Massachusetts and Montana do not contain the latter provision and it is suggested this distinguishes Minnesota cases from the decisions of those states. Though this may be true in the case of the trial court, we disagree as to this court. While the constitutional authority to prescribe the “taking of evidence” may legitimize the employment of a district judge for that purpose — essentially what has been done in this case — it speaks not at all to the task assigned this court, which has nothing to do with the taking of evidence.

18 . Schmitt v. McLaughlin declined to deprive an elected candidate of his office where he acted in good faith, even though his violation of the election law was “deliberate, serious, and material.” The court said:

“Violation of Minnesota election law does not necessarily mean that the candidate elected must be deprived of his office. Minn.St. 210A.38 provides that where the act ‘complained of arose from accidental miscalculation or from some other reasonable cause of like nature, and in any case did not arise from any want of good faith, and under the circumstances it seems to the court to be unjust that the candidate shall forfeit his * * * office,’ the penalty of removal need not be imposed. See Bank v. Egan, 240 Minn. 192, 200, 60 N.W.2d 257, 262 (1953). In this case, contestee believed that his use of the initials ‘DFL’ on his lawn signs and in his advertisements did not violate section 210A.02. It seems clear from the record that contestee intended only to indicate to the voters that he was a member of the DFL party. In fact, in response to a letter from contestant objecting to his use of the initials ‘DFL’, contestee suggested that contestant could also indicate his own political party affiliation. Contestant has indicated that he too would have identified himself with the DFL party. In light of these circumstances, where it appears that contestee’s conduct did not arise from any lack of good faith, it would be unjust to require him to forfeit his office.” 275 N.W.2d 591.