Zettler v. Ventura , 2002 Minn. LEXIS 610 ( 2002 )

OPINION

BLATZ, Chief Justice.

This is an original action under Minn. Stat. § 204B.44 (2000) in which the petitioner seeks relief from an alleged wrongful act by Secretary of State Mary Kiff-meyer, in her refusal to accept affidavits of candidacy for a judicial seat in the First Judicial District and her anticipated failure to place the seat on the ballot. Petitioner is an attorney residing in Scott County who had planned to run for the seat, which was scheduled for election in fall 2002. An expedited hearing was held and, so as not to impede the orderly administration of the election, we issued an order on July 3, 2002, granting the petition with this opinion to follow. In the order, we directed the secretary of state to accept affidavits of candidacy for the First Judicial District seat and to place the seat on the 2002 ballot.

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 Minn.Stat. § 204B.44, asking this court to order the secretary of state to accept affidavits of candidacy and hold an election for Judge Atkins’ seat. On July 1, 2002, the governor ordered and directed the retirement of Judge Atkins effective January 2, 2003, and directed that the order be filed with the secretary of state. The candidate filing period for judicial and other elected state offices ran from July 2, 2002 to July 16, 2002.

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 fifing 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, Minn. Stat. § 204B.44(a), (b), (c) (2000), but also includes a broad category: “Any wrongful act, omission, or error of any election judge, municipal clerk, county auditor, canvassing board or any of its members, the secretary of state, or any other individual charged with any duty concerning an election.” Minn.Stat. § 204B.44(d) (2000). Thus, we address the question of whether the secretary of state’s initial² failure to accept affidavits of candidacy for and place on the ballot for election Judge Atkins’ seat in the First Judicial District constituted a “wrongful act, omission, or error” of the secretary of state. Id.³

We begin our analysis with the Minnesota Constitution, and specifically Article VI, §§ 7-8, which provide:

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. Minn. Const, art. VI, § 8. To determine whether there is a vacancy, we must be cognizant of the electoral process and how allowing that process to run its course would affect the operation of the judiciary in our state. In other words, there is a necessary interplay between the electoral process and the appointment authority, and we must give effect to each as appropriate.

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’sterm 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 Minn.Stat. § 490.126, subd. 2 (2000) (providing that a written order for retirement, when filed with the secretary of state, effects a vacancy in the office to be filled). On May 17, 1996, the governor noticed the appointment of Rex Stacey effective September 3, 1996. The secretary of state then notified the court that she did not intend to designate the office on the ballot in 1996.

Charles Diemer, a lawyer living in the First Judicial District, petitioned this court under section 204B.44 to declare that the appointment of a successor to Judge Kali-na was invalid and to direct the secretary of state to place the Kalina seat on the ballot in 1996. Diemer, 550 N.W.2d at 876. In denying Diemer’s petition, this court referenced section 490.126, subdivision 2, which provides that a vacancy is effected when the order for retirement is filed with the secretary of state, and explained that once the vacancy is created, Article VI, Section 8 of the constitution “does not merely authorize, but mandates the governor to appoint a qualified person • to fill the vacancy ⅜ * 550 N.W.2d at 877. Thus, we concluded, the governor was within his authority in appointing a successor to fill the vacancy occurring on the retirement of Judge Kalina.

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.

550 N.W.2d at 877-78.

Therefore, there were two bases for the result in Diemer. First, under Minn.Stat. § 490.126, subd. 2, a vacancy exists when the governor orders a retirement, and under the constitution the governor must fill vacancies by appointment. Second, the constitutional provision authorizing an appointment serves the important purpose of avoiding a gap in service, so as not to leave a judicial seat open awaiting the taking of office the following January.

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 Wol-ner’s retirement or filed the order for retirement with the secretary of state.

The situation presented by Judge Atkins’ retirement is both different from these situations and unprecedented. Shortly before the start of the filing period, Judge Atkins announced his intention to retire and, while the governor’s order for retirement issued before the start of the election process, there has been no announcement of a successor. Moreover, Judge Atkins- will serve in office through Thursday, January 2, 2003. The end of Judge Atkins’ full term is Monday, January 6, 2003. Thus, the, gap in judicial service' that would have resulted if Judge Atkins’ successor were chosen by election is minimal, and occurs long after the election. Under these particular facts, an election to fill this position is entirely feasible and use of the appointment process would serve no logical purpose. As such, an appointment would interfere with Article VI, Section 7 of the Minnesota Constitution.

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 fine 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 two processes to ensure that one process does not annul the constitutional provision for the other. The dissent would allow the electoral process to be usurped by appointment through blind reliance on section 490.126, subd. 2, a statutory provision that ignores the necessary interplay between the constitutionally-rooted election and appointment processes.

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 Diem-er 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, 560 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. Minn.Stat. § 204B.44(d).

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

1 . On June 28, 2002, Judge Atkins clarified that his resignation was intended to signal his retirement.

2 . Subsequent to this court’s July 3, 2002 order, the secretary certified Judge Atkins' seat as subject to election in 2002.

3 . Petitioner also named the governor in his petition and asked the court to enjoin the governor from appointing a successor to Judge Atkins. In the court’s July 3, 2002 order, the petition was dismissed with respect to the governor because the petition did not allege that the governor in the context at issue was charged with a “duty concerning an election.” Minn.Stat. § 204B.44(d).