This is an original proceeding seeking a declaratory judgment from this Court on the constitutionality of sections 23-4510.1 and 23-4510.2, R.C.M. 1947. These statutes provide for a general election ballot on retention or rejection of all unopposed incumbent district court judges and supreme court justices seeking election.
Petitioner is Robert S. Keller, a voter, resident and taxpayer of Flathead County, Montana. Defendants who have entered appearances here are the Governor, Secretary of State and Clerk and Recorder of Flathead County in their official capacities.
Ex parte presentation of the petition was made and this Court set the matter for adversary hearing. We granted leave to Daniel J. Shea, a registered voter and taxpayer of Missoula County, Montana to appear as amicus curiae; ordered the Governor and Secretary of State joined as additional defendants; and ordered notice to be given to the Attorney General and the 56 county attorneys in Montana. Briefs were filed and oral arguments heard.
Thereafter this Court accepted original jurisdiction of this proceeding; ordered the petition amended; ordered all unopposed incumbent district judges joined; ordered service on all the above persons; and ordered responsive pleadings to be filed by all defendants. Supplemental briefs were filed and additional oral argument presented on behalf of the parties and amicus curiae. At the conclusion of the final hearing on August 10, 1976, the case was taken under advisement.
The issue is whether sections 23-4510.1 and 23-4510.2 are unconstitutional as applied to unopposed incumbent district court judges and supreme court justices running in the general election who were not originally appointed by the Governor to fill vacancies and confirmed by the state senate.
The crux of petitioner's argument is that Article VII, Section 8, 1972 Montana Constitution, providing for retention or rejection of unopposed incumbent judges and justices by the voters is clear and unambiguous; that it applies only to unopposed incumbent judges and justices originally selected by the Governor to fill vacancies and subsequently confirmed by the state senate; and that sections 23-4510.1 and 23-4510.2 are therefore unconstitutional as applied to unopposed incumbent judges and justices not originally selected by the Governor and confirmed by the state senate to fill vacancies by reason of Article IV, Section 5, 1972 Montana Constitution, providing that the person receiving the largest number of votes shall be declared elected.
Defendants, on the other hand, contend that the language of Article VII, Section
Amicus supports the defendants' position and additionally points out that the legislature had no difficulty in determining the meaning of Article VII, Section 8, 1972 Montana Constitution, as indicated by enactment of sections 23-4510.1 and 23-4510.2; and that there is no rational basis for distinguishing between unopposed incumbent judges and justices initially elected and those initially appointed insofar as subsequent elections are concerned.
The relevant constitutional provisions are:
The statutes attacked in this case were enacted by the 1973 Legislature and provide as follows:
The crux of the issue before us is the meaning of the second sentence of subdivision (2) of Article VII, Section 8, 1972 Montana Constitution. Specifically, does it mean that all incumbent district judges and supreme court justices who are unopposed must run on an approval or rejection ballot in the general election? Or does it mean that those incumbents initially appointed by the Governor and subsequently confirmed by the state senate must run on this basis?
The same rules of construction apply in determining the meaning of constitutional provisions as apply to statutory construction. State ex rel. Cashmore v. Anderson, 160 Mont. 175, 500 P.2d 921, cert. den. 410 U.S. 931, 93 S.Ct. 1372, 35 L.Ed.2d 593; Vaughn & Ragsdale Co. v. State Board of Equal., 109 Mont. 52, 96 P.2d 420; State ex rel. Dufresne v. Leslie, 100 Mont. 449, 50 P.2d 959; State ex rel. Gleason v. Stewart, 57 Mont. 397, 188 P. 904. In determining the meaning of a given provision, the intent of the framers is controlling. Section 93-401-16, R.C.M. 1947; State ex rel. Cashmore v. Anderson, supra. Such intent shall first be determined from the plain meaning of the words used, if possible, and if the intent can be so determined, the courts may not go further and apply any other means of interpretation. Dunphy v. Ananconda Co., 151 Mont. 76, 438 P.2d 660, and cases cited therein.
Can the intent of the provision be determined by the plain meaning of the words used? The second sentence of subdivision (2) reads:
The key word is "incumbent". Is it used in the same sense that it is used in the preceding sentence of the subdivision to refer to a judge or justice appointed by the Governor to fill a vacancy and subsequently confirmed by the state senate — "If, at the first election after senate confirmation, and at the election before each succeeding term of office, any candidate other than the incumbent justice or district judge files for election to that office, the name of the incumbent shall be placed on the ballot * * *" and in the following sentence of the subdivision — "* * * If an incumbent is rejected, another selection and nomination shall be made." Or, on the other hand, is it used to refer to any incumbent irrespective of initial election or appointment? (Emphasis added.)
In common usage, the word "incumbent" means "a person who is in present possession of an office * * *." Black's Law Dictionary 4th Ed. Rev. It is not limited, qualified or restricted by the method by which one attained the office. Thus, if the second sentence of the subdivision is isolated from the first and third sentences of the subdivision, the language could mean that all incombent district judges and supreme court justices who are unopposed must run on an approval or rejection ballot in the general election.
On the other hand, if we construe the language in the context of the entire subdivision a contrary result can be reached. The word "incumbent" in the first or preceding
Accordingly, we hold that the language of the second sentence of subdivision (2), Article VII, Section 8, 1972 Montana Constitution, is ambiguous. As the language itself is not clear, we must resort to extrinsic rules of construction.
Perhaps the best indication of the intent of the framers is found in the explanatory notes as prepared by the Constitutional Convention. These provide in pertinent part, following Article VII, Section 8, 1972 Montana Constitution:
This expresses the intent of the delegates to the Constitutional Convention and the meaning they attached to the new constitution they framed and adopted. It plainly shows that the approval or rejection ballot was intended to apply to any unopposed judge in office.
Legislative determination of constitutional intent leads us to the same construction. While such determination is not binding on this Court, it is entitled to consideration. Here the legislature had no difficulty in determining that the intent of the framers of the 1972 Montana Constitution was that all unopposed incumbent judges and justices were subject to approval or rejection by the voters. The legislature subsequently enacted implementing legislation to that effect, sections 23-4510.1 and 23-4510.2, R.C.M. 1947. It is presumed that the legislature acted with integrity and with an honest purpose to keep within constitutional limits. Sutherland, Statutory Construction, 4th Ed., Vol. 2A, Sec. 45.11, p. 33, and cases cited therein.
The principle of reasonableness in construction of an ambiguous constitutional provision also aids us in determining the intent of the framers here. This principle applies equally to construing constitutional provisions or statutes and has been defined and explained in these words:
Montana has adopted this principle by statute, section 49-134, R.C.M. 1947.
While we do not consider petitioner's contended construction will lead to "absurd results" within the meaning of State ex rel. Ronish v. Sch. Dist. No. 1, 136 Mont. 453, 348 P.2d 797, no rational basis nor reason has been suggested to us and we perceive none for requiring unopposed incumbent appointees to run on an approval or rejection basis in each succeeding election,
Public Policy favors a like construction. A recognized authority on statutory construction has used this language:
This Court has heretofore applied this public policy in favor of the citizen's right to vote in construing a statute providing for absentee ballots. Maddox v. Board of State Canvassers, 116 Mont. 217, 149 P.2d 112. This same public policy applies with equal force in construing subsection (2), Article VII, Section 8, 1972 Montana Constitution.
For the foregoing reasons, we hold that the intent of the constitutional delegates collectively in using the word "incumbent" in the second sentence of subdivision (2), Article VII, Section 8, was that it apply to all unopposed district judges and supreme court justices irrespective of how they originally attained their judicial offices. We therefore construe the meaning of that subdivision to require all unopposed district judges and supreme court justices running for election or re-election to be placed on the general election ballot to allow voters of the state or district, as the case may be, to approve or reject him. Accordingly, we hold sections 23-4510.1 and 23-4510.2, providing for retention or rejection of such justices or judges constitutional.
We remark in passing that we have not relied on the minutes of the Constitutional Convention proceedings as indicative of the intent of the delegates. We have purposely refrained from using this basis of interpretation as excerpts from various portions of these minutes, among other things, can be used to support either position, or even a third position, i.e. that the delegates simply did not address the specific problem involved in this case. In the final analysis, the collective intent of the delegates can best be determined by application of the preceding rules of construction to the ambiguous language used in subsection (2), Article VII, Section 8, 1972 Montana Constitution, and approved by the delegates.
We have considered the other arguments of relator and the other rules of construction cited. We have determined that none would change our decision herein. To set each forth in detail herein would serve no useful purpose. The applicable rules and reasons for our decision are set forth above.
This opinion constitutes a declaratory judgment that sections 23-4510.1 and 23-4510.2, R.C.M. 1947, are constitutional and apply to every unopposed incumbent district judge or supreme court justice running for election or re-election.
JOHN C. HARRISON, J., and EDWARD T. DUSSAULT,
CASTLES, Justice (concurring).
I concur with the majority except that I do not view the Legislative determination of constitutional intent as being persuasive. Other than to indulge in the presumption of constitutionality of legislation, I do not give great weight to that principle.
DALY, J., dissents and will file a written dissent at a later date.