State Ex Rel. Angelini v. Hardberger

SPECTOR, Justice,

joined by GONZALEZ, Justice,

concurring.

I concur in the majority’s judgment, but I cannot join its holding that section 201.023 unconstitutionally infringes the Governor’s *496 appointment power. That conclusion is inconsistent with sound principles of construction and a recent decision of this Court. Without a constitutional amendment, the appointment power of the Governor does not trump the people’s right to elect their judges.

The majority holds that Justice Hardber-ger’s prospective resignation does not create a vacancy in his office for purposes of triggering an election, at least until November 1998. 932 S.W.2d at 495. That holding cannot be reconciled with this Court’s decision in Texas Democratic Executive Comm. v. Rains, 756 S.W.2d 306 (Tex.1988). Rains presented a set of facts virtually identical to this case. In Rains , a justice of the Fourth Court of Appeals submitted a prospective resignation on June 21st, more than four months before the November general election. Id. at 306 . Here, Justice Hardberger, also of the Fourth Court of Appeals, submitted his prospective resignation on June 20th, more than four months before the November general election. The resignation of the justice in Rains was to be effective January 1, 1989, following the November 1988 general election. Id. Likewise, Justice Hardber-ger’s resignation is to be effective January 1, following the general election. Our precise holding in Rains was that the Governor had no discretion to refuse to accept a resignation so “that for the limited purpose of triggering the electoral process, a vacancy in [the resigning justice’s] office exists as a matter of law.” Id. at 307 (emphasis added). The majority’s opinion today reaches exactly the opposite result — as a matter of law, no vacancy exists for purposes of triggering an election. See 932 S.W.2d at 495.

Even apart from Rains , I believe that today’s holding that section 201.023 is unconstitutional as applied in this case is unwarranted. An “exercise of legislative authority is entitled to great weight, and we cannot hold it without constitutional warrant unless it is plainly so beyond a reasonable doubt.” Great S. Life Ins. Co. v. City of Austin, 243 S.W. 778, 784 (Tex.1922). “[I]t is the duty of the courts to construe a statute in such a way as to avoid repugnancy to the Constitution.” Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11 , 350 S.W.2d 839, 849 (1961) (emphasis added). The majority’s opinion fails in that duty.

As we recognized in Rains , Title 12 of the Election Code, including section 201.023, “clearly was intended to protect the right of the voters of this state to choose their elective officers.” Rains, 756 S.W.2d at 307 . The source of that right, like the Governor’s appointment power, is our Constitution. See Tex. Const. art. V, §§ 2, 4, 6, 15, 18(b). While previous constitutions provided for the appointment of judges by the Governor, see Tex. Const. art. IV, § 5 (1861); art. V, §§ 2, 6, 19 (1869), our current constitution confers that power upon the people. See Tex. Const. art. V, §§ 2, 4, 6, 7, 15, 18(b); see 1 GEORGE D. BRADEN ET AL., THE CONSTITUTION OF THE State of Texas: An Annotated and Comparative Analysis 377 (1977). The majority acknowledges that the Constitution does not define vacancy and agrees that section 201.023 does not even speak to the Governor’s appointment power. Nevertheless, the majority holds the definition adopted by the Legislature for purposes of triggering an election unconstitutional because of its incidental effect.

As long as the method established by our Constitution for selecting judges remains unchanged, section 201.023 should be upheld as a legitimate effort by the Legislature to ensure that the people may exercise their most fundamental constitutional right at the earliest opportunity. It seems clear that our Constitution establishes the gubernatorial appointment as a stopgap measure; appointees serve only “until the next succeeding General Election.” Tex. Const, art. V, § 28 (emphasis added); see also Tex. Const, art. V, §§ 2, 4. The majority’s approach thwarts the preference in our current Constitution for the election of judicial officers. At a minimum, the incidental impact of section 201.023 on the Governor’s appointment power does not establish the unconstitutionality of the statute “plainly ... beyond a reasonable doubt.” Great S. Life Ins. Co., 243 S.W. at 784 .

The relief the State requested was a holding that Justice Hardberger’s delivery of his prospective resignation triggered the Governor’s power to appoint a successor to serve only until the November general election. Consequently, the contention that section 201.023 is unconstitutional under the circumstances of this case, although mentioned in *497 passing, was neither briefed nor argued. Both major political parties have nominated candidates to be placed on the November 1996 ballot. The majority’s decision makes that election a nullity and allows the Governor’s appointee to serve until the November 1998 election.

I would hold that Justice Hardberger’s prospective resignation triggered an election under section 201.023 of the Election Code. Because, however, I agree with the majority’s holding that it did not create a present vacancy for appointment purposes, I concur in the judgment of the Court and would deny the writ of quo warranto.