No. 84-20 INTHE 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, eta1

# ., Petitioners,

STATE OF MONTANA, and JAiiS WALTERMIRE, Secretary of State, Respondent.

ORIGINAL PROCEEDITJG:

COUNSEL OF RECORD: For Petitioners: LarryId. ElisonsandJames Goetz argued, Missoula, Montana

ForRespondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana Judy Browningargued, Asst. Atty. General, Helena

-- Submitted: March 6, 1984 Decided: April 3, 1984

Filed: 

### APR

ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. Petitj-onersare 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 supremecourt 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-onerscontend 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 officeof chief justice, and the office of position number three (3)

### ,now occupied by the author of this opinion. The deadline for filing judicial nominations isApril 16, 1984. Because of the importance of the question and time exigences imposed by the nominating deadline, this Court assumed jurisdiction. In our orderassuming 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 existsbecause of: (1) thepresence of a district judge (ArthurB. 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 thatno standing exists regardless of the status of petitioners. We need not discuss each of the contentionsbecause 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 unconstitutionalbecause they are in direct conflict with Art. VII, S 10 of the Montana Constitution. I. STANDING

## - REGISTERED VOTERThe State argues that a registered voter is not sufficiently affectedby the statutes because the statutesdo 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 forwhom 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 justicemust declare that he would run for another judicialoffice; (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 registeredvoter is too speculative. Where the public and the electoratewere so clearly intended tobenefit bv a constitutional provision, we hold that a registered voter has standing to assert that public interest by contending that the constitutional pro~risionhas been the victim of legislativestrangulation. 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. 1972ConstitutionalConvention, 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 supremecourtand 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 firstversion 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 judgemay file for another judicial position without forfej-tureof the judicial position he holds." (Tr. 1972 Montana Constitutional Convention, Vol. IV at 1149.) With no debate thisversionwasvoted 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, changedas to form only, and with no further debate on the merits, the delegates voted to adopt this version,which isnowpart 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-icialposition 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~esto seek various levels of judicial office through the elective process without first suffering a forfeiture of their own office. Wemust, 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 standingtomake 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 thepublic 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 thatprivate parties should be granted standing to contest important public issues. The Court said: "[Tlhis court in itsdiscretion,may grant standing toprivate parties tovindicate thepublic 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-ahomaSupreme Court, relying in part on the Sego case, 1-ookedmostly to private citizen petitioners to grant standing to assert that a state commissionhad failed to complywith an Oklahoma statute. In Howard,the petitioners soughtand obtained aperemptorywrit 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-egalityof legislative action that allegedly flies in the face of our state constitution. That is particularly so where the constitutionalprovision is intended to benefit the public as a whole rather than classesof individuals--suchas judges. The constitutional provision invoked here was not intended to confer specialprivileges on the judiciary or on individual judges. Rather, it was intended to give the public a potentially hroader choice in exercising its constitutiona1 tovote for judicialcandidates.This Court has been keenly sensitive to. the constitutional rights ofvoters. Although the case is not in point factually or legally,we clearly recognized in Jonesv. 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." 176Mont. at 254,577 P.2d at 848. In Jones the right of registered voters to vote for judicial candidateswas completel-ydenied by operation of the challenged statutes. Here the registeredvoters would not be completely denied their right tovote for judicial candidates running for the offices that are open to the elective process this year. But the operationof the challenged statutes does deny the voters their right to vote for a class of judicial candidates that allegedly is expresslypermittedby Art. VII, S 10,of ourConstitution to be candidates forother judicial offices. Unlike Jones, the registered voters here, in addition to asserting their constitutionalright tovote,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 tovote 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 foranother judicialoffice.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 statuteshave not only chilled that process, they have essentially frozen that process by making it a virtual certainty that judgeswould 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 ashaving the standing to assert that the challenged statutes have diminished his constitutional right tovote. 11. UNCONSTITUTIONALITYOF 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 

### "Anyholder of a judicial.position forfeitsthatpositionby

# ..

# . filing for an elective office other than a judicialposition. 

# .." -- (Emphasisadded.) 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 draftingArt. VII, S 10,did not intend that a forfeiture of office would result if a judge filed for "other" judicial office. The State, however, interpretsArt. 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 districtiudges 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 judicialoffice without forfeiting their own offices. Forfeiture of office

was intended as the result only when a judge filed for a legislative or executiveposition. (SeePart I,supra.) The State concedes that the delegates had this intent, but nonetheless argues that the delegates somehow drafted a provision thatdid not reflect this intent. The State argues that this Court is bound by what was drafted rather than by whatwas intended. The State's interpretation ofArt. 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,doesnotdeclare 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 legislaturemay step into this vacuum and enact laws declaringwhat does happenwhen 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 "resignto run" constitutionalprovision.The question, of course, involves the interpretation to be givenArt. VII,S 10. The State argued in itsbriefs 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 reasonableone. Despite this concessionof twodiametrically 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 petitioners1interpretation 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" officeholding. It furtherprohibits amember 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.

### " (Emphasisadded.) The judicial article is clearly themost restrictive--it imposes severe sanctions on office-seekingby judicialoffice holders. Any judgeholding office in this state forfeitshis office if he files for any office--"other 

### -- than a judicialposition." (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 electionprocess. 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 officewithout incurring forfeiture of their own office, its intent is sufficiently clear. To say that a judge forfeitshis office if he files for a non-judicial office is but another way of saying that a sitting judge can file for other judicial officewithout forfeitinghis office. Sections 3-1-607 and 3-1-608,MCA, forbidwhatArt. VII, S 10, authorizes, and they are therefore in conflict with this constitutionalprovision. This opinion shall constitutea 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

APPENDIXA "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 timewhen hemust 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 resignationbecomes 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 reelectionto the identical office then occupiedby 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 1972Rontana Constitution." In sum, I dissent on the following grounds: (1)There isno actual case or controversy to invoke the judicialpower of this Court; (2)there is no injury or threatened injury to any of the petitioners by reason of the resign-to-run statutes thatpetitioners ask us todeclare unconstitutional;and

(3) the expansion of this Court's judici.al power is a dangerous precedent that violates constitutional and statutoryprovisions 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 cannotbe 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-a1power under this Act extends only to actual cases and controversies and not to abstract questions. Petitionershere seek to overturn this holding onthe grounds they are voters and tha.t the acts in question adversely affect the election processes under the 1972 Montana Constitution. We have previously construedMontana's Uniform Declara-- tory Judgments Act to prohibit the courts from determining speculative matters, entering anticipatory judgments, or providing for contingencies thatmay later arise: "Ithas been held and we approve of the following statement of the principles applicable under the Uniform Declaratory JudgmentAct: "'The courts have no jurisdiction to determine ma.tters purely speculative, enter anticipatory judgments, declare social status, dealwith theoretical problems,give advisory opinions, answer moot questions, adiudicateacademic matters,-~rovide for concinaencieswhich 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),171Mont. 416, 440, 558 P.2d 1110, 1123. The case at bar is amanufactured or contrived lawsuit. Petitioners admittedly are an ad hoc committee formed to prosecute this case. At oral argument counsel forpetitioner stated: "This committeewas 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 thatmay ormay 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-eyForge 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 irreducibleminimum, 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 judicialpower canbe invoked. In a 1977 case, we held: "From these caseswe synthesize that the issue presented forreviewmust 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 injuryneed 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 thisdistinction: "The concept of standing arises from two different doctrines: (1) Discretionary doctrines aimed at prudently managing judicial review of the legality ofpublic 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 thatmay ormay 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.notherjudicial 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, 92S.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 SchoolDistrict (5thCir. 1976), 526 F.2d 286. Although standingwas not at issue in these cases,each court found it significa.nttonote that one of the plaintiffs had expressed a desire to run for office. Iwould hold as the United States SupremeCourtheld 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 drivesa motor vehicle on the highways of this state, particularly Montana State Highway No. 200 and Interstate Highway No. 15between Fort Shaw and Great Falls, Montana; that the attorney general has issued the proclamation to which we haveadverted; 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 theproclamation

# ."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. Hewants to drive his motor vehicle as fa.stas the basic rule allows 

# .

# ..' 195 Mont. at 7, 635 P.2d at 1285. The majori-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-ahomaCorporation Commission (Okla. 1980)

## , 614 P.2d 45 to gra.ntstanding to aprivate party to contest importantpublic issues. Inmy view, this innot avoting rights case. Novoter has the right to vote for a potential candidatewho does not choose to run. Montana's resign-to-run statutesrestrictthe conductof judges,not the conduct ofvoters. 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 seta 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 interestas justification for granting standing to adjudicate this controversy. The policies that underlie this constitutional limitation of standing are of equal importance to thepublic.Petitionerswant 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 judgewho 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 isbeing gored. The contention that public interest creates standing can be made aqa.inst elmost any legislative act and effectively eliminates constitutional standing requirements. The issuepresented in this case ispurely hypothetical and aca.demic. The majority opinion today establishes a precedent thatwill compel thisCourt and thedistrict courts in future cases to file down this self-createdprimrose path like lemmings in theirMa-rch-to-the-Sea. I respectfully dissent. I would dismiss the petition for I.ackof standina. 

# %A&* Chief Justice We join in the foregoingdissent of the Chief Justice. 

### /" 

# J;yz\\\%

Ilon

# . IIenry Lob 'B, istrictJcldge

### , sitting inplace f Mr. ~ustice Franlc B.Mr. JusticeJohn C. Sheehy concurring:

I concur fullywith themajority opinion and want to add an observation respecting suitsof thisnatureby voters. This Court has long recognized the standing of an elector who challenges the validity of an election or the alleged misuse of the electiveprocess. From State ex rel. Clarkev. Moran (1900),24 Mont. 433, 633P. 390, through State ex rel. Steenv. Murray (1964),144Mont. 61, 394 P.2d 761,and down to the recent caseof Jonesand Herriottv. Judge (1978), 176Mont. 251, 577P.2d 846,this Courthas guarded and granted standing to avoterwhose personal and constitutional right to vote isdenied, affected or threatened, holding that every patriotic citizen interested in the enforcement of the election laws,or the selection of suitable candidateshas a direct personal interestwhich the courtswill enforceon an individualbasis.