*1
KELLER,
Petitioner,
v. ETHYL
ROBERT S.
Plaintiff
capacity
SMITH,
Flat
and Recorder
in her
Clerk
Respondent.
County, Montana,
head
Defendant
No. 13382.
Argued Aug.
1976.
Aug.
Decided
1976.
Robert S. pro Anderson, Gen., Woodahl, Atty. William Asst. Atty. Robert Helena, Gen,, Stew- County M. Springer, Atty., Patrick argued, Pearce, II, art A. for Deputy County Atty., appeared, Kalispell, defendant and respondent. Shea, Missoula,
Daniel amicus curiae. argued, J. MR. HASWELL delivered the of the court. opinion JUSTICE This is an a original proceeding seeking declaratory judgment from this Court on the of sections 23-4510.1 constitutionality 23-4510.2, R.C.M.1947. These a statutes provide gener- al election ballot on retention or of all in- cumbent district court justices seeking election. Keller, voter,
Petitioner is Robert S. a resident and taxpayer Flathead Montana. Defendants who County, have entered Governor, here appearances are the of State Secretary and Clerk and Recorder of Flathead in their County official capacities.
Ex parte presentation was made petition and this Court set the matter for adversary hearing. We leave to granted Shea, Daniel voter and registered of Missoula taxpayer J. *3 curiae; County, Montana to as appear amicus ordered the defendants; Governor and of State Secretary joined as additional and ordered notice to be to the given General and the Attorney 56 in county attorneys Montana. Briefs were filed and oral ar- heard.
guments Thereafter this Court of this accepted original jurisdiction amended; proceeding; ordered the ordered petition all unopposed incumbent district ordered service on the judges joined; all above and ordered persons; to be filed responsive pleadings by all defendants. were Supplemental briefs filed and additional oral on behalf of the and argument presented amicus parties curiae. At the conclusion of the final on hearing August 1976, the case was taken under advisement.
The issue is whether sections 23-4510.1 and 23-4510.2 are un- constitutional as to incumbent district court applied unopposed and judges justices the running who were not originally Governor to fill appointed by vacancies and confirmed the state senate. by VII,
The crux of is that Article Section petitioner’s argument Constitution, 1972 Montana for retention or rejec- providing tion of voters is by incumbent and unopposed judges justices it clear and that incum- unambiguous; applies only unopposed bent and justices selected Governor judges originally by senate; fill vacancies and confirmed subsequently by and that and are uncon- sections 23-4510.1 23-4510.2 therefore stitutional as incumbent and jus- applied judges tices not selected the Governor and confirmed by by originally IV, the state senate to fill vacancies reason of Article Section Constitution, 1972 Montana that the receiv- person providing number of votes shall be declared elected. ing largest hand, Defendants, on the that the language contend VII, Constitution, is am- Article Section 1972 Montana this can be that the constitutional biguous; meaning provision at the Constitutional Conven- ascertained from proceedings tion; that a ma- show substantial clearly that these proceedings voters an give opportunity mtended jority district court and judges all incumbent measure or their own judicial either a challenger court justices against record; 23- of sections of constitutionality presumption and these two statutes therefore 4510.1 and 23-4510.2 applies; justices to all and judges are as incumbent constitutional applied whether originally appointed. elected additionally defendants’ position
Amicus supports determining difficulty had no out that points legislature Montana Constitu- tion, and 23- 23-4510.1 as enactment sections indicated 4510.2; be- rational basis for distinguishing that there is no elected initially tween are insofar elections subsequent and those initially appointed *4 concerned. are:
The relevant constitutional provisions 8, which provides: Article Section (1) shall nominate replacement The Governor “Selection. from nominees selected in the manner lawby for provided any of office court or district vacancy justice court supreme judge. If fails governor to nominate within after thirty days nominees, of the chief receipt justice justice or chief shall acting make the nomination. Each nomination shall be confirmed by senate, but a nomination made while the is senate not session shall be effective as an until the end appointment of confirmed, next session. If the nomination is not the office shall be vacant and another selection and nomination shall be made. If, confirmation,
“(2) at the first election after senate and at office, the election before each of succeeding term candidate any other than the incumbent or files justice district for elec- office, tion to that the name of the be on incumbent shall placed office, the ballot. If is no there election contest for the the name of the incumbent shall nevertheless placed be on the general election ballot to allow voters of the or district to approve him. If an is reject incumbent another selection and rejected, nomination shall be made.
“(3) run, If an incumbent does not there shall be an election for the office.” IV, provides:
“Result In held elections. all elections people, person persons receiving number of votes shall be largest declared elected.”
The statutes attacked in this case were enacted the 1973 Legislature follows: provide ballot,
“23-4510.1. Form on su- retention In the event there is no preme justice. court candidate for office of chief other than in- justice justice cumbent, the name the incumbent shall be on official ballot for the as follows: (here (chief)
“Shall the incumbent justice the name of justice inserted) of Montana be retain- court of the state ed in office another term?
404
“ n YES
“ n NO
“(Mark the justice “x” word “YES” if wish you an before the “x” word “NO” if remain in office. Mark an before the you office.)” to remain in justice do not wish incumbent district “23-4510.2. ballot on retention Form of of is for the office of In the event there no candidate court judge. than in a of the state other district court district judicial judge incumbent, be name of the incumbent shall official ballot for the follows: general (here of the dis- the name the incumbent judge “Shall judge inserted) the_judicial of the district court of trict court is for another of Montana be retained in office district of term in office?
“ n YES
“ n NO
“(Mark word the judge an “x” before the “YES” if wish you if Mark an “x” before the word “NO” you to remain in office. office.)” do not wish remain us of the second meaning issue before crux 8, (2) 1972 Mon- of Article of subdivision sentence does it mean all tana Constitution. Specifically, who are court justices district in the elec- an ballot must run on appointed it mean that those incumbents initially tion? Or does state senate confirmed subsequently the Governor and this must run on basis? determining of construction
The same rules
to statutory
as apply
of constitutional
meaning
provisions
Anderson,
175,
rel. Cashmore v.
60 Mont.
ex
struction State
1372,
921,
931,
35 L.Ed.
93
den. 410 U.S.
S.Ct.
500 P.2d
cert.
593;
109
Board
&
Co. v. State
Equal.,
2d
Vaughn Ragsdale
Leslie,
420;
v.
100
96
State ex rel.
P.2d
Mont.
Dufresne
Stewart,
959;
v.
57
ex rel. Gleason
50 P.2d
State
Mont.
Mont.
P.2d and cases cited therein. *6 Can the intent of the be provision determined the by plain meaning the words used? The second sentence of subdivision (2) reads:
“* * * office, If there is no election contest for the the name the incumbent shall nevertheless be placed elec- general tion ballot to allow voters the state or district to or approve * * *” him. reject word is key “incumbent”. Is it used in the same sense that it is used in the sentence of the preceding subdivision to a refer to or judge justice the Governor fill appointed by a — facancy confirmed subsequently the state senate by at “If, election senate confirmation, and at the election first after each term candidate succeeding office, any other than before the incumbent justice or district files for election to that office, the name of the incumbent shall be on the ballot * * *” “* * *— and in the sentence of the following subdivision If an incumbent is rejected, another selection and nomination Or, hand, shall be made.” on the other is it used to refer to any (Em- incumbent of initial irrespective election or appointment? added.) phasis In common usage, word “incumbent” means “a person * *
who is in of an present possession office *.” Black’s Law limited, 4th Ed. Rev. It Dictionary is not qualified restricted Thus, the method by which one attained the by office. if the second sentence of the subdivision is isolated from the first and subdivision, third sentences of the could mean that language all incumbent district court who are judges justices must, run on an ballot in rejection approval election.
general hand, the context On the other if we construe the in language a can be reached. The contrary of the entire subdivision result word in the first or sentence the sub- preceding “incumbent” .to an incumbent Gover- clearly appointed by division refers (1) a because such nor fill as subdivision vacancy provided incumbent is the incumbent confirmation only subject Likewise the third and final sentence of subdivision state senate. (2) can refer to an incumbent Governor only appointed (1) incum- a as in subdivision because such fill vacancy provided is the for which another selection rejected bent only Thus the word “incumbent” in and nomination possible. (2) as sentence of subdivision has same second {he subdivision, in the two sentences of the word “incumbent” incumbent district and the means language appointed by originally (1) must subsection vacancy Governor fill provided on an ballot. in the run of the second sen we hold that Accordingly, language (2), 1972 Montana subdivision tence of *7 clear, Constitution, not itself is ambiguous. is As language rules of construction. we must resort to extrinsic of is of the intent the framers the best indication Perhaps Constitutional notes prepared by found in explanatory part, following in provide pertinent These Convention. 8, 1972 Montana Constitution: *8 unopposed judges justices while exempting view, to such a construction leads from this In our requirement. result, while the alternative construction simply an unreasonable of the framers to all district subject the desire promotes the voters justices and court supreme whenever run they unopposed. A recognized favors a like construction. Policy
Public has used this language: on construction authority statutory great to vote are of citizens regulating rights “Statutes and, therefore, a view to are with interpreted interest public and to insure the election for citizens their vote securing right Sutherland, choice.” Statu- of these officers who are people’s Ed., 71.15, Construction, and 4th Vol. cases tory p. Sec. therein cited. in favor of has heretofore this public policy
This Court applied a statute to vote right construing providing citizen’s Canvassers, 116 v. Board State absentee ballots. Maddox with 112. This same public policy applies Mont. P.2d (2), VII, Section force in subsection equal construing 1972 Montana Constitution. reasons, we the intent of hold that
For the foregoing the word “in the constitutional collectively using (2), Article the second sentence of subdivision cumbent” in all district judges was that it at of how they originally court justices irrespective We therefore construe tained their offices. judicial district judges all require of that subdivision to be or reelection for election justices running voters of the ballot to allow be, him. Ac district, or reject case may approve as the 23-4510.2, providing sections 23-4510.1 we hold cordingly, constitutional. or judges of such or rejection for retention relied on the we have not in passing We remark as in Convention proceedings Constitutional minutes re- We have purposely the delegates. the intent of dicative of *9 frained from this basis of from using interpretation excerpts minutes, various of these portions, can be among things, used to either support even third i. e. that position, position, did not delegates address the simply in- specific problem volved in this case. In the final the collective analysis, intent can best be determined by application pre- rules of ceding construction to the used in ambiguous language (2), subsection 1972 Montana Constitu- tion, and approved by delegates.
We have considered the other of relator and arguments other rules of construction cited. We have determined that none would our change decision herein. To set each forth in detail herein would serve no useful purpose. applicable rules and reasons for our decision are set forth above.
This constitutes a opinion that declaratory judgment sections 23-4510.2, R.C.M.1947, 23-4510.1 and are constitutional and every district court justice for election running or re-election. HARRISON,
MR. C. and The HONORABLE JUSTICE JOHN DUSSAULT, EDWARD T. District for Mr. Judge, sitting Chief Harrison, concur. Justice
MR. CASTLES (concurring). JUSTICE I concur with the majority I do not view the except Legislative determination of constitutional intent as being per- suasive. Other than to indulge of constitu- presumption tionality legislation, I do not to that give great weight principle.
MR. DALY dissents and will file a written dissent at JUSTICE a later date. Notes “Convention * * * of judges Contested 1889 constitution “Revises have an does not if a in office judge however changed, is not ballot any- put his name will be in an election opponent * * *.” or him reject to approve asked people and way to the Constitutional the intent This expresses constitu- to the new attached the meaning they Convention that the It shows appro- and adopted. plainly framed tion they val was to to any ballot intended rejection in office. of intent determination constitutional leads Legislative not us to the same While such construction. determination is Court, it on this is entitled to consideration. Here binding had no in that intent of legislature difficulty determining framers of the 1972 Montana was that all unop Constitution were to posed incumbent judges subject approval rejection by voters. The enacted im legislature subsequently effect, to that 23- plementing legislation sections 23-4510.1 and acted, 4510.2, It R.C.M.1947. is that the presumed legislature with an con with honest within integrity purpose keep Sutherland, Ed., Construction, limits. stitutional 4th Statutory 2A, 45.11, Vol. Sec. and cases cited therein. p. of of principle reasonableness construction an am- constitutional aids biguous provision also us in determining intent of the framers here. This con- principle applies equally constitutional struing provisions or statutes and has de- been fined and these explained in words: “It a has been called golden rule statutory interpretation that unreasonableness the result produced by one among alternative statute is for possible interpretations reason rejecting favor another which would interpretation a reasonable result. It said to produce be a ‘well established that the law favors principle statutory interpretation rational ” Sutherland, and sensible construction.’ Statutory Construc- tion, Ed., 2A, 45.12, 4th Vol. Sec. and cases cited therein. p. statute, 49-134, Montana has this section adopted principle by R.C.M.1947. While we do not consider contended construction petitioner’s will lead “absurd results” within of State ex rel. Ronish v. Sch. Dist. No. Mont. 348 P.2d no rational nor basis reason has been us and suggested per- we ceive none run requiring appointees election, on an in each basis succeeding