stating this element as “whether a holding of retroactivity would cause substantial inequitable results, injustice or harm”
How later courts described this case
- stating this element as “whether a holding of retroactivity would cause substantial inequitable results, injustice or harm”
- plain meaning of “appoint” is to designate for office
- forfeiture of office was too harsh a remedy when the person failing to comply with an election requirement did so in part upon reliance on advice from officials involved in the judicial retention process
- discussing the date on which Judge Johnstone first took and oral oath of office
Written by the judges who cited it.
The opinion
BURKE, Chief Justice,
dissenting.
I respectfully disagree with the majority’s conclusion that Judge Johnstone was “appointed,” within the meaning of article IV, section 6, on October 8, 1979. In my view, the date of his appointment, for this purpose, was December 14, 1979, the date upon which he took his oath of office.
Governor Hammond’s letter of October 8 merely entitled Judge Johnstone to claim his office, Delahay v. State, 476 P.2d 908 (Alaska 1970), by taking a prescribed oath. Alaska Const, art. XII, § 5; AS 22.10.110. Otherwise, the letter had no particular significance. It did not immediately entitle Judge Johnstone to exercise the powers of a judge, nor did it entitle him to receive the salary and other emoluments of his new office. Between October 8, the date of the letter, and December 14, when he took the oath, Judge Johnstone remained a private citizen, free to decline the governor’s “appointment,” and free of the benefits and burdens of judicial office. See, e.g., AS 22.10.180 (restricted activities while in office); AS 22.10.10 (compensation); AS 22.-25.020 (retirement pay). His status remained the same until December 14, 1979; on that date he became a judge and Governor Hammond’s appointment became a reality.
This view, it seems to me, is also more consistent with Alaska’s system of judicial selection and tenure. That system was partly designed to avoid the evils of an elected judiciary. A judge runs for retention on the basis of his own record while in office, rather than against another candidate. Judge Johnstone’s performance as a judge began on December 14, 1979.
For the foregoing reasons I would affirm the judgment of the superior court. As I see it, Judge Johnstone was neither required nor entitled to appear on the 1982 general election ballot. The “first general election held more than three years after his appointment,” as I interpret article IV, section 6, is the election that will take place in 1984.