No. 84-20 

IN THE SUPREME COURT OF THE STATE OF MONTAPJA 

1984 

THE COMMITEE FOR AN EFFECTIVE JUDICIARY; 

ARTIiUR M. MARTIN, CARL 14. DAVIS, JEAN 

BOlQbIAId, ROBERT S . KELLCR, et a1 . , 

Petitioners, 

STATE OF MONTANA, and JAiiS 

WALTERMIRE, Secretary of State, 

Respondent. 

ORIGINAL PROCEEDITJG : 

COUNSEL OF RECORD: 

For Petitioners: 

Larry Id. Elisonsand James Goetz argued, Missoula, 

Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning argued, Asst. Atty. General, Helena 

-- 

Submitted: March 6, 1984 

Decided: April 3, 1984 

Filed: APR 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Petitj-oners are all registered voters in this state. 

This Court assumed jurisdiction of petitioners1 original. 

petition for declaratory judgment that we hold sections 

3-1-607 and 3-1-608, NCA, unconstitutional because they 

conflict with Art. VII, § 10 of the Montana Constitution. 

Unless a district judge or supreme court justice resigns his 

office, these statutes prevent a district iudge from running 

for any supreme court position, and they also prevent a 

justice of the supreme court from running for the position of 

chief justice. (See Appendices - A and - B for the full text of 

these statutes.) Art. VII, S 10 of our Constitution sets 

forth two circumstances in which judicial. office is 

forfeited. Lt provides: 

"Any holder of a judicial position forfeits that 

position by either filing for an elective office 

other than a judicial position or absenting himself 

from the state for more than sixty (60) consecutive 

days. " (Emphasis added) . 

Petiti-oners contend that this constitutional provision 

clearly authorizes a district judge to file for elective 

office to the supreme court and a iustice of the supreme 

court to file for the position of chief justice -- without 

resigning from office to do so. 

This is an election year and two supreme court positions 

must face the election process: the office of chief justice, 

and the office of position number three (3) , now occupied by 

the author of this opinion. The deadline for filing judicial 

nominations is April 16, 1984. Because of the importance of 

the question and time exigences imposed by the nominating 

deadline, this Court assumed jurisdiction. In our order 
assuming jurisdiction we asked that the parties file briefs 

not only on the constitutional questions raised, but also on 

the question of whether the petitioners have standing to 

challenge the constitutionality of the statutes. 

Although other constitutional issues are raised 

attacking the statutes, petitioners' primary contention is 

that sections 3-1-607 and 3-1-608, MCA, conflict with Art. 

VII, § 10 of our Constitution, and therefore must be voided. 

In addition to their alleged standing as registered voters, 

petitioners also allege that standing exists because of: (1) 

the presence of a district judge (Arthur B. Martin) as one of 

the petitioners; (2) the presence of seven lawyers as 

petitioners; and (3) the presence of three petitioners who 

were members of the 1972 Constitutional Convention that 

drafted and passed Art. VII, 5 10, later ratified by the 

people of this state as part of their adoption of a new 

constitution. 

Although the State conceded at oral argument that it 

would be in the public interest to decide the constitutional 

question on the merits, the State nonetheless steadfastly 

adhered to its position that no standing exists regardless of 

the status of petitioners. We need not discuss each of the 

contentions because we hold that standing, under the facts of 

this case, exists because the petitioners are registered 

voters and the statutes involved adversely affect the 

election process contemplated by the 1972 Montana 

Constitution. We hold also that sections 3-1-607 and 

3-1-608, MCA, are unconstitutional because they are in direct 

conflict with Art. VII, S 10 of the Montana Constitution. 

I. STANDING - REGISTERED VOTER 
The State argues that a registered voter is not 

sufficiently affected by the statutes because the statutes do 

not deprive the voter of his right to vote in the election 

but merely provide that a district judge or a supreme court 

justice cannot be one of those candidates for whom the voter 

can cast his ballot. To create standing in a registered 

voter, the State argues, three conditions must be met: (1) a 

sitting district judge or supreme court justice must declare 

that he would run for another judicial office; (2) the judge 

must decline to file because of the automatic resignation 

provisions of sections 3-1-607 and 3-1-608, MCA; and (3) the 

voter must declare his intent to vote for that particular 

person. Absent these conditions, the State argues that the 

injury to the registered voter is too speculative. Where the 

public and the electorate were so clearly intended to benefit 

bv a constitutional provision, we hold that a registered 

voter has standing to assert that public interest by 

contending that the constitutional pro~rision has been the 

victim of legislative strangulation. 

The 1972 constitutional delegates, in considering what 

is now Art. VII, 5 10, of the judicial article, were 

primarily motivated by the public interest to be served by 

permitting district judges to run for the Supreme Court and 

for a justice of the supreme court to run for chief justice 

-- without having to forfeit their judicial office. The 

concern of the delegates was not to confer benefits on the 

iudiciary nor on individual members of the judiciary. 

Rather, their concern was for the health of the judicial 

system itself -- for the public interest. 

At the time of the 1972 Constitutional Convention, 

section 3-1-607, MCA (formerly section 93-219, R.C.M. 1947) 
was in effect, and it appears that the delegates in charge of 

the judicial article favored a prohibition similar to the 

statute. The original proposal required district judges and 

supreme court justices to resign from office if they filed 

for any elective office other than their own. The original 

provision submitted to the full convention, provided in part: 

"Filing for another elective office results in forfeiture of 

judicial position . . ." (Tr. 1972 Constitutional Convention, 

Vol. I at 512.) However, several delegates immed-iately 

questioned the wisdom of this provision once they learned 

that it was intended to prevent district judges from running 

for the supreme court and supreme court justices from running 

for chief justice -- unless they resigned from office. (Tr. 

1972 Constitutional Convention, Vol. IV, at 1148-1158.) 

Several delegates aruued that the judicial system would 

benefit by enabling district court judges and supreme court 

justices to run for judicial office other than their own 

without forfeiting their own office. (Tr. 1972 

Constitutional Convention, Vol. IV at 1149.) Based on these 

arguments, the article was amended to reflect that thinking. 

The first version of the amendment that was voted on was 

more precise but longer than the version finally adopted. 

The first version provided in part that "Filing for another 

elective public office results in forfeiture of a judicial 

position, but a judge may file for another judicial position 

without forfej-ture of the judicial position he holds." (Tr. 

1972 Montana Constitutional Convention, Vol. IV at 1149.) 

With no debate this version was voted on and passed by a vote 

of 88 to 2. This version was then sent to the style and 

drafting committee for final revision as to form. The final 

version came out of the style and drafting committee, changed 
as to form only, and with no further debate on the merits, 

the delegates voted to adopt this version, which is now part 

of our 1972 Constitution. The integrity and supremacy of 

this provision is the basis for the case now before us. It 

reads : 

"Any holder of a jud-icial position forfeits that 

position by either filing for an elective office 

other than a judicial position or absenting himself 

from the state for more than sixty (60) consecutive 

days." (Art. VII, 5 lo.) 

This constitutional provision was motivated by the 

belief of the delegates that the public interest would be 

served by a provision that would permit jud~es to seek 

various levels of judicial office through the elective 

process without first suffering a forfeiture of their own 

office. We must, therefore, recognize that a public interest 

exists, apart from the desires of individual district judges 

or supreme court justices, to assert the integrity and 

supremacy of this constitutional provision voted on and 

passed by the delegates and later voted on and ratified by 

the people of this state. We hold that a registered voter 

has the standing to make this assertion. 

Standing questions cannot often be decided by hard and 

fast rules because of the varying complexity and importance 

of questions that come before the courts. We recognized in 

Stewart v. Board of County Commissioners of Big Horn County 

(1977), 175 Mont. 197, 573 P.2d 184, that standing questions 

must be viewed in part in light of "discretionary doctrines 

aimed at prudently managing judicial review of the legality 

of public acts . . . " 175 Mont. at 200, 573 P.2d at 186. 

Where discretion is involved hard and fast rules cannot be 

the decisive factors. The importance of the question to the 
public surely is an important factor, and this is why in 

State ex rel. Sego v. Kirkpatrick (N.M. 1974), 524 P.2d 975, 

the New Mexico Supreme Court recognized that private parties 

should be granted standing to contest important public 

issues. The Court said: 

"[Tlhis court in its discretion, may grant standing 

to private parties to vindicate the public interest 

in cases presenting issues of great public 

importance." Sego, supra, 524 P.2d at 979. 

The Sego case involved the validity of a partial veto 

exercised by the governor of New Mexico. The court granted 

standing to petitioner, as an elector and taxpayer, to 

contest the legality of the governor's action. See also 

State ex rel. Howard v. Oklahoma Corporation Commission 

(Okla. 1980) , 614 P. 2d 45, where the Okl-ahoma Supreme Court, 

relying in part on the Sego case, 1-ooked mostly to private 

citizen petitioners to grant standing to assert that a state 

commission had failed to comply with an Oklahoma statute. In 

Howard, the petitioners sought and obtained a peremptory writ 

of mandamus compelling the state commission to comply with 

the Oklahoma statute. Nor should we ignore the rights of 

citizens to assert the public interest in challenging the 

1-egality of legislative action that allegedly flies in the 

face of our state constitution. That is particularly so 

where the constitutional provision is intended to benefit the 

public as a whole rather than classes of individuals--such as 

judges. The constitutional provision invoked here was not 

intended to confer special privileges on the judiciary or on 

individual judges. Rather, it was intended to give the 

public a potentially hroader choice in exercising its 

constitutiona 1 to vote for judicial candidates. 
This Court has been keenly sensitive to. the 

constitutional rights of voters. Although the case is not in 

point factually or legally, we clearly recognized in Jones v. 

Judge (1978), 176 Mont. 251, 577 P.2d 846, that a special 

interest exists in a registered voter whose vote may be 

denied by legislation. We said: 

"The right to vote, however, is a personal and 

constitutional right. Although stature as an 

elector will generally not allow an individual to 

bring an action invoking the judicial power, an 

elector who is denied this right is sufficient]-y 

affected to invoke the judicial power to challenge 

the validity of the Act which denies him the 

right." 176 Mont. at 254, 577 P.2d at 848. 

In Jones the right of registered voters to vote for 

judicial candidates was completel-y denied by operation of the 

challenged statutes. Here the registered voters would not be 

completely denied their right to vote for judicial candidates 

running for the offices that are open to the elective process 

this year. But the operation of the challenged statutes does 

deny the voters their right to vote for a class of judicial 

candidates that allegedly is expressly permitted by Art. VII, 

S 10, of our Constitution to be candidates for other judicial 

off ices. Unlike Jones, the registered voters here, in 

addition to asserting their constitutional right to vote, are 

asserting the constitutional supremacy of a provision tha.t 

expressly opens the judicial elective process to all judges 

who would file for another office--without suffering 

forfeiture of their own office. At a minimum, the right of 

registered voters to vote for judicial candidates coming from 

the ranks of judges, would be diminished. Practicall-y 

speaking, the right would be effectively denied. Rare is the 

judicial candidate who would forfeit his judicial office by 

running for another judicial office. 
The constitutional delegates clearly intended the 

Montana electorate to be the beneficiaries of a judicial 

elective process permitting all judges to file for other 

judicial office provided they are otherwise qualified. The 

challenged statutes have not only chilled that process, they 

have essentially frozen that process by making it a virtual 

certainty that judges would not run for other judicial office 

at the risk of automatic forfeiture of their office by the 

mere act of filing for other iudicial office. The electorate 

has been effectively denied a right to a potentially broader 

selection of judicial candidates. Just as clearly, a 

registered voter must be recognized as having the standing to 

assert that the challenged statutes have diminished his 

constitutional right to vote. 

11. UNCONSTITUTIONALITY OF SECTIONS 3-1-607 and 3-1-608,MCA 

The parties differ in their interpretation of the key 

language of Art. VII, 5 10, which provides that "Any holder 

of a judicial. position forfeits that position by . . . filing 

for an elective office other -- than a judicial position. . ." 

(Emphasis added.) This provision applies to all judges in 

this state. The challenged statutes, however, (sections 

3-1-607 and 3-1-608, MCA) prevent only district judges and 

supreme court justices from seeking other judicial office 

without forfeiting their office. The constitutional 

delegates, in drafting Art. VII, S 10, did not intend that a 

forfeiture of office would result if a judge filed for 

"other" judicial office. The State, however, interprets Art. 

VII, § 10, as creating a vacuum into which the legislature 

was clearly empowered to move and to enact the statutes 

declaring a forfeiture of judicial office when district 
iudges and supreme court justices file for other judicial 

office. 

The petitioners rely not only on the language of Art. 

VII, S 10, but also on the record of the constitutional 

proceedings which clearly establishes the intent of the 

delegates to permit judges to file for other judicial office 

without forfeiting their own offices. Forfeiture of office 

was intended as the result only when a judge filed for a 

legislative or executive position. (See Part I, supra.) The 

State concedes that the delegates had this intent, but 

nonetheless argues that the delegates somehow drafted a 

provision that did not reflect this intent. The State argues 

that this Court is bound by what was drafted rather than by 

what was intended. The State's interpretation of Art. VII, 5 

10, would permit the legislature to enact the forfeiture 

sanctions imposed by the challenged statutes. 

According to the State, Art. VJI, S 10, does not declare 

what happens if a judge files for a judicial position--it 

only declares that a forfeiture results if a judge files for 

a nonjudicial office. Because the provision does not 

affirmatively declare that judges can file for "other" 

judicial office without suffering forfeiture of their own 

office, the State contends that the legislature may step into 

this vacuum and enact laws declaring what does happen when a 

judge files for "other" judicial office. With this as its 

premise, much of the State's brief is devoted to the 

theoretical basis on which it believes the legislature has 

the authority to enact so-called "resign to run" statutes. 

The cases cited in this analysis, however, do not apply to a 

situation where the question turns on the interpretation to 

be given to a "resign to run" constitutional provision. 
The question, of course, involves the interpretation to 

be given Art. VII, S 10. The State argued in its briefs that 

no ambiguity in the language exists and that its 

interpretation is the only reasonable one. Yet, j.n oral 

argument before this Court, the State conceded that 

petitioners1 interpretation of Art. VII, 10, is a 

reasonable one. Despite this concession of two diametrically 

opposed "reasonable" interpretations of the constitutional 

provision, the State refused to concede that an ambiguity 

exists that can be resolved only by reference to the record 

of the constitutional proceedings. The record, of course, 

supports the petitioners1 interpretation of the constitution. 

The constitutional prohibition against judges seeking 

nonjudicial offices while still holding judicial office is 

but part of a general constitutional scheme declaring 

directly or indirectly the rights of office holders in all 

branches of government to seek other office while still 

holding office. The legislative article (Art. V) does not 

expressly mention whether a legislator can file for another 

elective office without forfeiting his legislative office, 

but Art. V, S 9, indirectly places restrictions on "other" 

office holding. It further prohibits a member of congress or 

a public office holder i.n this state from simultaneously 

holding office as a legislator. The executive article (Art. 

VI, § 5 (2) ) expressly provides that executive office holders 

". . . mav be a candidate for any public office during his 

term. " (Emphasis added. ) 

The judicial article is clearly the most restrictive--it 

imposes severe sanctions on office-seeking by judicial office 

holders. Any judge holding office in this state forfeits his 

office if he files for any office--"other -- than a judicial 
position." (Art. VII, S 10, supra.) Though it does not 

mention filing for a legislative or an executive office, the 

crystal clear message of this provision requires a judge to 

forfeit his judicial office if he files for either a 

legislative or an executive office. It is equally clear, 

however, that the constitutional delegates did not intend a 

forfeiture of judicial office to result if a judge filed for 

"other" judicial office. The language, "other than a 

judicial positi.on," shows that the delegates intentionally 

left the door open for judicial office holders to file for 

other judicial office without forfeiting their offices as a 

condition to seeking other judicial office through the 

election process. 

The State's position would permit the legislature to 

close a door which the constitutional delegates intentionally 

left open. The door was left open because the delegates 

perceived a public benefit in opening up the judicial 

election process to judges who desired to move from lower 

courts to the district court and from district court to the 

supreme court, or from a justice on the supreme court to a 

chief justice on the supreme court. (See Part I, supra.) 

While Art. VII, S 10, does not affirmatively declare that 

judicial candidates can run for other judicial office without 

incurring forfeiture of their own office, its intent is 

sufficiently clear. To say that a judge forfeits his office 

if he files for a non-judicial office is but another way of 

saying that a sitting judge can file for other judicial 

office without forfeiting his office. 

Sections 3-1-607 and 3-1-608, MCA, forbid what Art. VII, 

S 10, authorizes, and they are therefore in conflict with 

this constitutional provision. This opinion shall constitute 
a declaratory judgment holding that sections 3-1-607 and 

3-1-608, MCA, are unconstitutional. 

The request for declaratory relief is granted. 

,/ 

Justice,,," i -- 

We Concur: 

Chief Justice 

Justices 

APPENDIX A 

"3-1-607. Supreme court justice or district court 

judge not to run for office--resignation required. 

(I) If a person occupying the office of chief 

justice or associate justice of the supreme court 

or judge of a district court of the state of 

Montana becomes a candidate for election to any 

elective office under the laws of the state of 

Montana, he shall immediately, and in any event at 

or before the time when he must file as a candidate 

for such office in any primary or special or 

qeneral election, resign from his office of chief 

iustice, associate justice, or district judge. 
"(2) The resignation becomes effective immediately 

upon its delivery to the proper officer or 

superior. 

" (3) The resignation requirement applies except 

when the person is a bona fide cand-idate for 

reelection to the identical office then occupied by 

him or for another nonpartisan judicial office the 

term of which does not commence earlier than the 

end of the term of the office then occupied by 

him. I' 

APPENDIX B 

"3-1-608. Forced vacancy. In the event of a 

failure to resign, the office of chief justice, 

associate justice, or district judge automatically 

becomes vacant and the former occupant has no 

further right, power, or authority therein for any 

purpose and no right to any emoluments thereof, 

notwithstanding the fact that a successor is not 

appointed or" elected. The vacancy becomes 

operative to deprive the person of the emoluments 

of the office in order to carry out the policy of 

this section and 3-1-607." 
Mr. Chief Justice Frank I. Haswell, dissenting. 

Today's majority opinion may arguably establish a good 

political policy, but it cannot be sustained under existing 

The essence of the majority opinion on the standing of 

petitioners to bring this action is contained in a single 

sentence: 

"We need not discuss each of the contentions because we hold that standing, 

under the facts of this case, exists 

because the petitioners are registered 

voters and the statutes involved adversely affect the election process contemplated by the 1972 Rontana Constitution." 

In sum, I dissent on the following grounds: (1) There 

is no actual case or controversy to invoke the judicial power 

of this Court; (2) there is no injury or threatened injury to 

any of the petitioners by reason of the resign-to-run statutes that petitioners ask us to declare unconstitutional; and 

(3) the expansion of this Court's judici.al power is a 

dangerous precedent that violates constitutional and 

statutory provisions of existing law. 

Essentially this is an original petition seeking a 

declaratory judgment that the resign-to-run statutes are 

unconstitutional. Montana adopted the Uniform Declaratory 

Judgments Act in 1935. Under that Act a decision on the 

constitutionality of a statute cannot be obtained by a person 

who has no interest in the question except that of a "resident, citizen, taxpayer and elector" Chovanak v. Matthews 

(1948), 120 Mont. 520, 526, 188 P.2d 582, 588. In Chovanak 

we held that the judicj-a1 power under this Act extends only 

to actual cases and controversies and not to abstract 

questions. Petitioners here seek to overturn this holding on 
the grounds they are voters and tha.t the acts in question 

adversely affect the election processes under the 1972 

Montana Constitution. 

We have previously construed Montana's Uniform Declara-- 

tory Judgments Act to prohibit the courts from determining 

speculative matters, entering anticipatory judgments, or 

providing for contingencies that may later arise: 

"It has been held and we approve of the 

following statement of the principles 

applicable under the Uniform Declaratory 

Judgment Act: 

"'The courts have no jurisdiction to 

determine ma.tters purely speculative, 

enter anticipatory judgments, declare 

social status, deal with theoretical 

problems, give advisory opinions, answer 

moot questions, adiudicate academic 

matters, -~rovide for concinaencies which 

may hereafter arise, or give abstract 

opinions. (Citinq cases) The Uniform 

~eclarator~ ~ud~ment Act does not 1-icense 

litigants to fish in judicial ponds for 

legal advice. ' " (Citing cases) (Emphasis 

added) Montana Department of Natural 

Resources and Conservation v. Intake 

Water Co. (1976), 171 Mont. 416, 440, 558 

P.2d 1110, 1123. 

The case at bar is a manufactured or contrived lawsuit. 

Petitioners admittedly are an ad hoc committee formed to 

prosecute this case. At oral argument counsel for petitioner 

stated: "This committee was formed for the express purpose of 

initiating this lawsuit to answer this question." 

No individual on the committee is alleged to have any 

interest in running for judicial office. No sitting judge 

has expressed a desire to run for another judicial office. 

Under such circumstances this Court has no jurisdiction to 

determine the purely theoretical, a.bstract and aca.demic 

question posed which owes its genesis to a hypothetical 

future contingency that may or may not arise. 
Secondly, there is no injury or threatened injury to 

petitioners apart from the general public. This is a. 

constitutional requirement of standing under both the United 

States and. Montana Constitutions. 

The Federal injury requirement has been found to stem 

from language in Art. I11 of the United States Constitution 

which limits judicial. power to "cases" and "controversies. " 

As recently summarized in Vall-ey Forge Christian College v. 

Americans United for Sepa.ra.tion of Church and State (1982), 

454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700, 709: 

" . . . at an irreducible minimum, Art. 

I11 requires the party who invokes the 

court's authority to 'show that he personally has suffered some actual or 

threatened injury as a result of the 

putatively illegal conduct of the 

defendant'. . . " 

In f4ontana we have also held that our state 

constitution requires an actual "case" or "controversy" 

before the judicial power can be invoked. In a 1977 case, we 

held: 

"From these cases we synthesize that the 

issue presented for review must represent 

a "case" or "controversy" within the 

judicial cognizance of the state 

sovereignty. Additionally, the following 

minimum criteria are necessary to 

establish standing to sue a governmental 

entity: (1) The complaining party must 

clearly allege past, present or 

threatened injury to a property or civil 

right; and (2) the alleged injury must be 

distinquishable from the injury to the 

public generally, but the injury need not 

be exclusive to the complaining party." 

Stewart v. Board of County Commissioners 

(1977), 175 Mont. 197, 201, 573 P.2d 184, 

186. 

Only those adversely affected by a statute can 

challenge its validity. Jones v. Judge (1978), 176 Mont. 
A constitutionally grounded requirement of injury is 

not a discretionary matter which the court may require or 

dispense with at its option. Constitutional standing 

requirements are distinguishable from discretionary 

prudential limitations which the courts have fashioned to 

limit the number of cases they hear. In Stewart we 

recognized this distinction: 

"The concept of standing arises from two 

different doctrines: (1) Discretionary 

doctrines aimed at prudently managing 

judicial review of the legality of public 

acts, (citations omitted) ; and (2) 

doctrines of constitutional limitation in 

the federal courts drawn from the 'cases 

and controversies' definition of federal 

judicial power in Article 111, United 

States Constitution and in the Montana 

courts drawn from the 'cases at law and 

in equity' definition of state judicial 

power in Article VII, 1972 Montana 

Constitution." 175 Mont. at 200, 573 

P.2d at 186. 

This distinction is crucial because courts are free to 

fashion exceptions to discretionary prudential limitations 

but not constitutional standing requirements which are 

mandatory. See generally, L. Tribe, American Constitutional 

- Law at 100 (1978). 

Here the flaw in petitioners' standing is that it 

presents only a hypothetical future contingency for 

determination which we have held insufficient to invoke the 

court's jurisdiction. Intake Water Co., supra. Petitioners 

here have alleged only that some judges may choose to run, 

i.e. that the statutes may be triggered by a hypothetical 

future event that may or may not occur. No past, present or 

future injury is alleged absent hypothetical future events or 

occurrences. There can be no injury to petitioners unless 

and until a sitting judge indicates a desire to run for 

a.nother judicial office but for the resign-to-run statutes. 
The following major cases in which resign-to-run statutes 

have been challenged reveal that in each case at least one of 

the petitioners alleged that he or she wanted to run for 

another office: Clements v. Fashing (1982), 457 U.S. 957, 

102 S.Ct. 2836, 73 I,.Ed,2d 508; Bullock v. Carter (1972), 405 

U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92; Joyner v. Moffard (9th 

Cir. 1983), 706 F.2d 1523; Morial v. Judiciary Commission of 

the State of Louisiana (5th Cir. 1977), 565 F.2d 295; 

Henderson v. Fort Worth Independent School District (5th Cir. 

1976), 526 F.2d 286. Although standing was not at issue in 

these cases, each court found it significa.nt to note that one 

of the plaintiffs had expressed a desire to run for office. 

I would hold as the United States Supreme Court held in 

Clements, supra, that to have a hona fide case or 

controversy, a plzintiff challenging a resign-to-run statute 

must allege that but for the sanctions of the statutes, he or 

she wou1.d engage in the very a.cts that would trigger 

enforcement of the statute 

We followed the above analysis in Lee v. State (1981) , 

195 Mont. 1, 5, 635 P.2d 1282, 1284, wherein our opinion 

summarized Lee's complaint in this language: 

". . . In his complaint, he alleges that 

he is a resident of Fort Shaw, Cascade 

County, Montana; that he frequently 

drives a motor vehicle on the highways of 

this state, particularly Montana State 

Highway No. 200 and Interstate Highway 

No. 15 between Fort Shaw and Great Falls, 

Montana; that the attorney general has 

issued the proclamation to which we have 

adverted; that except for such proclamation, he would be entitled to drive a 

motor vehicle under the provisions of 

section 61-8-303, MCA, (the basic speed 

rule) in excess of 55 miles per hour as 

he was accustomed to doing prior to the 

issuance of the proclamation ." 
This language of the complaint was followed by the 

Court's observation that: 

". . . Gary Lee is directly affected by 

the operatior, of the statute he attacks 

in this case. His right or privilege to 

drive a motor vehicle by the basic rule 

of safety under section 61-8-303, MCA, 

ha.s been adversely limited by the enforcement or threatened enforcement of 

section 61-8-304, MCA. He wants to drive 

his motor vehicle as fa.st as the basic 

rule allows . . . ' 195 Mont. at 7, 635 

P.2d at 1285. 

The ma jori-ty , ignoring the Montana Constitution and 

Montana cases to the contrary, rely on a New Mexico case, 

State ex re1 Sego v. Kirkpatrick (197d;), 86 N.M.. 359, 524 

P. 2d 975 and an Oklahoma case, State ex rel. Howard v. 

Okl-ahoma Corporation Commission (Okla. 1980) , 614 P. 2d 45 to 

gra.nt standing to a private party to contest important public 

issues. 

In my view, this in not a voting rights case. No voter 

has the right to vote for a potential candidate who does not 

choose to run. Montana's resign-to-run statutes restrict the 

conduct of judges, not the conduct of voters. These statutes 

no more affect the public interest or the rights of voters 

than statutes establishing qualifications for any elective 

office. 

Finally, the majority today have set a far reaching and 

dangerous precedent in expanding the judicial power of our 

courts beyond the constitutional ].imitation of actual cases 

and controversies. The majority speaks of the public 

interest as justification for granting standing to adjudicate 

this controversy. The policies that underlie this 

constitutional limitation of standing are of equal importance 

to the public. 
Petitioners want this Court to reach out and declare a 

legislative act unconstitutional simply because it allegedly 

affects the public interest and their constitutional rights 

as voters. Their constitutj.ona1 rights as voters are not 

infringed absent the presence of a sitting judge who wants to 

run for another judicial. office but for the statutes in 

question. The perceived. public interest is a nebulous 

concept dependent on whose ox is being gored. The contention 

that public interest creates standing can be made aqa.inst 

elmost any legislative act and effectively eliminates 

constitutional standing requirements. 

The issue presented in this case is purely hypothetical 

and aca.demic. The majority opinion today establishes a 

precedent that will compel this Court and the district courts 

in future cases to file down this self-created primrose path 

like lemmings in their Ma-rch-to-the-Sea. 

I respectfully dissent. I would dismiss the petition 

for I.ack of standina. 

%A&* 

Chief Justice 

We join in the foregoing dissent of the Chief Justice. 

/" 

J;yz\\\% 

Ilon . IIenry Lob 'B, istrict Jcldge , sitting in place f Mr. ~ustice 

Franlc B. 
Mr. Justice John C. Sheehy concurring: 

I concur fully with the majority opinion and want 

to add an observation respecting suits of this nature by 

voters. 

This Court has long recognized the standing of an 

elector who challenges the validity of an election or the 

alleged misuse of the elective process. From State ex rel. 

Clarke v. Moran (1900), 24 Mont. 433, 633 P. 390, through 

State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d 

761, and down to the recent case of Jones and Herriott v. 

Judge (1978), 176 Mont. 251, 577 P.2d 846, this Court has 

guarded and granted standing to a voter whose personal and 

constitutional right to vote is denied, affected or threatened, 

holding that every patriotic citizen interested in the 

enforcement of the election laws, or the selection of 

suitable candidates has a direct personal interest which the 

courts will enforce on an individual basis.