Todd P. ZETTLER, Petitioner, v. Jesse VENTURA, Governor of the State of Minnesota, and Mary Kiffmeyer, Minnesota Secretary of State, Respondents.
No. C8-02-1048.
Supreme Court of Minnesota.
Aug. 30, 2002.
846
Todd P. Zettler, Savage, for petitioner.
Mike Hatch, Atty. Gen., Kenneth E. Raschke, Jr., Asst. Atty. Gen., and Alan I. Gilbert, Chief Deputy and Solicitor General, for respondent.
BLATZ, Chief Justice.
This is an original action under
Judge Eugene Atkins’ judicial seat in the First Judicial District was subject to election in 2002 in the regular course. Thus, unless reelected, Judge Atkins’ term of office would end on Monday, January 6, 2003. On June 20, 2002, Judge Atkins notified Governor Jesse Ventura that he intended to resign effective Thursday, January 2, 2003.1 In response, on June 24, 2002, John Hultquist, the Governor‘s Judicial Appointments Coordinator, sent a letter to the secretary of state notifying her that the governor intended to appoint someone to replace Judge Atkins.
On June 27, 2002, petitioner filed the petition at issue herein under
Petitioner, who intended to run for Judge Atkins’ seat, alleges that because Judge Atkins intends to remain in office for essentially the full term of his office and notified the governor of this fact before the filing period opened, the seat should be filled by election rather than appointment. Section 204B.44, which authorizes the filing of a petition for correction of errors, omissions, or wrongful acts related to the electoral process, describes several specific errors and omissions that may be the subject of a petition,
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.
Thus, the constitution provides for both the election and appointment of judges.
Petitioner argues that when an election is feasible, a judicial appointment should give way to an election. We need not decide whether election or appointment is the preferred vehicle for the seating of judges — the Minnesota Constitution determines which option is available under different circumstances. Specifically, the constitutional provision for the appointment of judges operates only when there is a vacancy.
Petitioner claims that if the election provision is to mean anything, Judge Atkins’ seat must be filled by election this year. Petitioner notes that the timing of Judge Atkins’ resignation allows sufficient time for the electoral process to run its course — notice to the governor was submitted before the opening of the filing period and over six months in advance of the effective date of Judge Atkins’ retirement. Moreover, petitioner notes that Judge Atkins will serve out the full term of his office, suggesting there will be no actual vacancy.
This court addressed the election versus appointment issue in Diemer v. Carlson, 550 N.W.2d 875 (Minn.1996). In that case First Judicial District Judge Gerald Kalina‘s term was set to expire on January 6, 1997. On February 20, 1996, Judge Kalina submitted his resignation to Governor Arne Carlson, effective August 31, 1996. On February 22, 1996, the governor issued an order directing the retirement of Judge Kalina and filed the order with the secretary of state. See
In the opinion, we also noted:
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 * * * [do] 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.
Therefore, there were two bases for the result in Diemer. First, under
This court also addressed a similar situation in Nelson v. Quie, 299 N.W.2d 119 (Minn.1980). In that case, Hennepin County Municipal Court Judge Herbert Wolner‘s retirement was to become effective October 31, 1980. On October 6, 1980, this court issued an order stating:
It is the unanimous opinion and judgment of this court that the retirement of Judge Wolner creates a “vacancy in the office of judge” within the meaning of
Minn. Const. Art. VI, § 8 as of October 31, 1980; that the appointment of a qualified person to fill the vacancy has become the constitutional duty of the Governor; and that the person so appointed will serve until a successor is elected and qualified following the general election in 1982.It follows that there is no occasion to vote for candidates for this office at the general election to be held on November 4, 1980.
Nelson, 299 N.W.2d at 120. In Nelson we did not reference section 490.126, subd. 2, nor is it apparent from the order when the governor received notice of Judge Wolner‘s retirement or filed the order for retirement with the secretary of state.
On the other hand, in Diemer there was no direct conflict with an impending election. Judge Kalina announced his retirement in February and the governor so ordered it within two days, well before filings opened for the seat. Diemer, 550 N.W.2d at 875. Governor Carlson announced a successor on May 17, 1996, also well before the election process began. Id. at 876. Finally, the effective date of Judge Kalina‘s retirement was August 31, 1996, which would have left a gap in service of approximately four months if the seat had been filled by election rather than appointment. Id. at 876, 878. Thus, in Diemer the use of the appointment process did not directly conflict with the electoral process and served the important purpose of preventing a gap in service.
In Diemer we recognized the importance of a gap in service to the appointment function. The potential for a delay in providing judicial services to the citizens of this state is an important consideration in whether the state constitution‘s appointment or election provision should apply. The simple truth is that even when all funded positions are filled, many of our judicial districts operate under significant resource limitations. Major case filings, which demand the vast majority of judges’ time, have increased significantly over the last decade. In rural areas, one judge may be the only judge for several counties. It is for this important reason that we have previously stated that it is “simply unthinkable” that we could tolerate a significant gap in service awaiting the results of an election. State ex rel. Hennepin County Bar Ass‘n v. Amdahl, 264 Minn. 350, 352, 119 N.W.2d 169, 170 (1962). Thus, where there would be a significant gap in service, use of the appointment process under Article VI, Section 8 of the Minnesota Constitution is appropriate. We need not establish a bright line for the effective date of a retirement that creates an unacceptable void in service. However, as the effective date in this case, January 2, 2003, leaves a clearly insignificant gap, the use of the appointment process is not required.
The dissent in effect claims that a gap in service simply cannot be considered when determining whether use of the appointment or elective process is appropriate. The dissent thereby allows the appointment process in Article VI, § 8 to trump the electoral process in Article VI, § 7. However, a preference for the appointment process is neither necessary nor legally dictated for several reasons. As noted above, neither election nor appointment of judges is preferred over the other — under the constitution each process has its place under different circumstances. Instead there must be interplay between the
A vacancy is significant, as the dissent asserts, but not in the formalistic and perhaps superficial sense of automatically triggering the appointment process. Instead we consider not only whether there is a vacancy under the statute but also whether there is a vacancy in the real sense of a potential for a gap in service that could leave citizens of the state without necessary judicial services. That is why the potential for a gap in service was an important part of our analysis in Diemer in determining whether an appointment was proper, rather than a single criterion such as the existence of a vacancy under section 490.126, subd. 2. See Diemer, 550 N.W.2d at 877-78. In Diemer, the notice of the appointment was made before filings opened for the position and a significant gap in service would have occurred if no appointment had been made. Id. Thus, where no notice of appointment had been made before filings opened and there would be no gap in service, allowing an election is consistent with our analysis in Diemer. In sum, the dissent does not explain why or how the Minnesota Constitution requires an appointment in this case despite the mandate of Article VI, Section 7 and the mandate of common sense for an election under these particular facts.
Accordingly, we conclude that where, as here, the effective date of the judge‘s retirement would thwart an otherwise possible election that would leave no significant gap in service, use of the election process in Article VI, Section 7 of the Minnesota Constitution is required. Therefore, as previously ordered, the secretary of state was required to accept affidavits of candidacy for the seat and place the seat on the ballot to avoid a “wrongful act, omission, or error” in the duties concerning an election.
Petition granted.
MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
DISSENT
ANDERSON, Russell A., Justice (dissenting).
The court‘s task in this case should have been an easy one, as rarely has the court been presented with language so explicit and so pervasive, in the Minnesota Constitution, the applicable statute, and our previous case law. That language expressly provides that a vacancy is effected when the governor files an order for a judge‘s retirement with the secretary of state, and that the governor must then appoint a successor. Despite the clarity of this rule of law, the court injects needless uncertainty into both the election and appointment process by requiring a determination of whether a gap in service is “significant” enough to warrant an appointment, where and when the “potential for delay” becomes important and whether an election is “feasible.” For this reason, and because I believe that respect for precedent requires use of the appointment process in this instance, I respectfully dissent.
The court‘s analysis properly begins with the Minnesota Constitution, but then ignores the explicit language in article VI, section 8 regarding a vacancy.
Sec. 8 Vacancy. Whenever there is a vacancy in the office of judge the governor1 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.
Following the constitutional directive to provide “by law” the appointment procedure, the legislature did just that in
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.
(Emphasis added.)
In Diemer v. Carlson, 550 N.W.2d 875 (Minn.1996), this court relied squarely on what we referred to as the “unambiguous provisions of the Minnesota Constitution as implemented by the legislature” and ruled: “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,” and once the vacancy exists, even if the resignation may be effective at a specified future date, the governor is mandated to appoint a qualified person to fill the vacancy. Id. at 876-77. In this case, the governor‘s order for retirement was filed on July 1, 2002, which effected a vacancy. Thus, Article VI, section 8 expressly requires an appointment.
We held in Diemer that a vacancy was effected when the order for retirement was filed with the secretary of state regardless of the effective date of the resignation. Id. at 876. The court today not only finds the effective date of the resignation significant, but seemingly dispositive of the question whether an appointment is appropriate. We considered the possibility of a gap in service in Diemer, but only to address the petitioner‘s argument that the outcome was controlled by Page v. Carlson, 488 N.W.2d 274 (Minn.1992), in which the court restated the constitutional requirement that judges be elected. Diemer, 550 N.W.2d at 877-78. A gap in judicial service was not a part of the analysis of whether a vacancy existed, and was clearly at most a secondary consideration — a “useful purpose” as we put it in Diemer.
Now, only six years later, to reach its conclusion, the court completely ignores our ruling in Diemer as to both the dispositive issue of when a vacancy occurs, and the force of the analysis in Diemer. While the doctrine of stare decisis is not inflexible, it is not to be abandoned on a whim; its purpose is to provide stability in the law, and we are “extremely reluctant” to overrule our previous cases. Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000). Yet Diemer is effectively overruled
The court‘s analysis is that whenever a vacancy arises and an election is “feasible,” without leaving a “significant” gap in service, an election should be held. The secretary of state regularly administers special elections for unanticipated vacancies in state offices. See
And what is a “significant” gap in service? Significance may depend on characteristics unique to the district affected, such as number of judges, workload, and geographic area. Determining whether a gap in service is significant will require a qualitative analysis that defies any bright line or predictability. The court by its decision invites a case by case analysis for every judicial retirement, and consequently seriatim petitions for relief under
Diemer established the rule of law to be applied here. Government by the rule of law:
is the main bulwark to our democratic form of government, demands a decent respect for the rule of stare decisis in order that citizens will be assured that decisions of the court are good for more than “one trip and one day only.”
State ex rel. Foster v. Naftalin, 246 Minn. 181, 205, 74 N.W.2d 249, 264 (1956). Because the court‘s ruling eviscerates the rule of law from Diemer for no apparent reason, I respectfully dissent.
STRINGER, Justice (dissenting).
I join in the dissent of Justice Russell A. Anderson.