Jones v. Judge
| Decision Date | 17 April 1978 |
| Docket Number | No. 14206,14206 |
| Citation | 35 St.Rep. 460,176 Mont. 251,577 P.2d 846 |
| Parties | Lewis R. JONES and Ralph L. Herriott et al., Plaintiffs and Petitioners, v. Hon. Thomas L. JUDGE, Governor of the State of Montana et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Ralph L. Herriott, argued, Hysham, John L. Adams, Jr., Billings, Douglas Y. Freeman, Hardin, Weymouth D. Symmes, Billings, Judge Charles B. Sande, argued, Billings, for plaintiffs and petitioners.
Michael T. Greely, argued, Atty. Gen., Helena, Mike McGrath, argued, Asst. Atty. Gen., Helena, Judge W. W. Lessley, argued, Bozeman, for defendants and respondents.
This is an original proceeding seeking a declaratory judgment from this Court on the constitutionality of section 93-710, et seq., R.C.M.1947.
These statutes provide in part that individuals nominated for judicial vacancies be confirmed by the Senate, but that a nomination made while the Senate is not in session is effective as an appointment, until the end of the next session.
This controversy arose after the judicial vacancy created by the appointment of Chief Justice Paul Hatfield to the United States Senate. The Judicial Nominating Commission as authorized by section 93-710, presented the Governor with three nominees. Thomas L. Judge as Governor of the State of Montana selected one of three nominees, Frank I. Haswell, to fill the office of Chief Justice of the Supreme Court as authorized by Section 93-711.
The appointment of Justice Haswell as Chief Justice created a vacancy on the Supreme Court which requires the same procedures as used in filling the vacancy for Chief Justice.
Petitioners are Lewis R. Jones, Ralph R. Herriott and Charles B. Sande, registered voters in Treasure and Yellowstone Counties who desire and intend to vote in the next primary and next general elections in the State of Montana.
Respondents filed a motion to dismiss and the Court dismissed the action as to respondents Mike Greely, John C. Harrison, Larry Elison and "all other persons recently involved as candidates or aspirants to the appointment to the office of Chief Justice of the Supreme Court of the State of Montana and Associate Justice of the Supreme Court of Montana."
The motion to dismiss as to the other respondents was heard at the time of the hearing on the merits on March 31, 1978.
It is petitioners' contention that individuals appointed to fill judicial vacancies must run for office at the next succeeding primary.
The crux of petitioners' argument is that Article VII, Section 8, 1972 Montana Constitution, is ambiguous.
The thrust of the complaint is that sections 93-710 and 93-711 are unconstitutional. The basis for the contentions is considered later in this Opinion.
Respondents initially contend petitioners lack standing to invoke the judicial power of this Court. In addition, respondents contend the mandates of Article VII, Section 8, as to judicial vacancies are unambiguous and therefore not subject to any construction by this Court.
The first issue is whether petitioners have standing to invoke the Court's judicial power.
The rule is well-established in Montana that only those who are adversely affected by a statute will be heard to question its validity. Chovanak v. Matthews (1948), 120 Mont. 520, 188 P.2d 582.
Chovanak stated that as a general rule, private citizens may not restrain official acts when they fail to allege and prove damages to themselves differing in character from that sustained by the general public.
The right to vote, however, is a personal and constitutional right. Although stature as an elector will generally not allow an individual to bring an action invoking the judicial power, an elector who is denied this right is sufficiently affected to invoke the judicial power to challenge the validity of the Act which denies him the right.
The second issue is whether the judicial nominating process as established in Montana is constitutional. Article VII, Section 8, 1972 Montana Constitution, is divided into three subsections. Subsection (1) provides for the nomination and appointment to fill judicial vacancies and is the constitutional basis for sections 93-710 and 93-711. Subsections (2) and (3) provide the manner of the election to fill the vacancies. Petitioners rely on the language in Keller v. Smith (1976), Mont., 553 P.2d 1002, 33 St.Rep. 828, and Yunker v. Murray (1976), Mont., 554 P.2d 285, 33 St.Rep. 856, which deal with subsections (2) and (3) and the meaning of the word " incumbent". Petitioners argue that because of a so-called "ambiguity" in subsections (2) and (3) that subsection (1) is also ambiguous. We do not agree.
Article VII, Section 8, subsection (1), states in part: "Each nomination shall be confirmed by the senate, but a nomination made while the senate is not in session shall be effective as an appointment until the end of the next session."
There is nothing ambiguous about this language. When the words of a statute are plain, unambiguous, direct and certain, it speaks for itself and there is nothing for the court to construe. State ex rel. Public Service Comm. v. Brannon (1929), 86 Mont. 200, 283 P. 202, 209. The terms must be given the natural and popular meaning in which they are usually understood. State ex rel. Hinz v. Moody (1924), 71 Mont. 473, 230 P. 575; Cashman v. Vickers (1924), 69 Mont. 516, 223 P. 897.
These same principles apply in the interpretation of the Constitution. Cruse v. Fischl (1918), 55 Mont. 258, 175 P. 878; Martien v. Porter (1923), 68 Mont. 450, 219 P. 817.
The language of the Constitution is unequivocally clear so that when a judicial vacancy exists, a nomination made when the senate is not in session is effective as an appointment until the end of the next session. The holding in Keller v. Smith, supra, that the word "incumbent" in Article VII, Section 8 is ambiguous has no bearing on the clarity of any other language in this section. Petitioners' use of Yunker v. Murray, supra, is similarly inappropriate.
Because the language is unambiguous there is nothing for the Court to construe.
The statutes complained of are derived directly from the unambiguous language of the 1972 Montana Constitution.
Petitioners point out that at the time of the adoption of the judicial article in 1972, the legislature met in annual sessions and that...
To continue reading
Request your trial
-
Brown v. Gianforte
...violations of Article VII: Committee for an Effective Judiciary v. State , 209 Mont. 105, 679 P.2d 1223 (1984) ; Jones v. Judge , 176 Mont. 251, 577 P.2d 846 (1978) ; Keller v. Smith , 170 Mont. 399, 401, 553 P.2d 1002, 1004 (1976) ; Yunker v. Murray , 170 Mont. 427, 554 P.2d 285 (1976) ; R......
-
Pfost v. State
...attention and be construed together, and that specific provisions control broad and general provisions. See Jones v. Judge (1978), 176 Mont. 251, 255, 577 P.2d 846, 849. In construing the two constitutional provisions here, we note that the people of Montana properly adopted an exception. T......
-
State ex rel. Zander v. District Court of Fourth Judicial Dist., In and For Missoula County
...certain, the statute speaks for itself and there is nothing for the Court to construe. Dunphy v. Anaconda Company, supra; Jones v. Judge (1978), Mont., 577 P.2d 846. The function of the Court is simply to ascertain and declare what in terms or in substance is contained in the statute. Secti......
-
Grossman v. State Dept. of Natural Resources
...which tend in measure to conflict with specific ones, we are controlled by specific provisions, Jones and Herriott v. Judge (1978), 176 Mont. 251, 577 P.2d 846, and an interpretation that achieves a reasonable result is favored, State v. Gafford (1977), 172 Mont. 380, 563 P.2d 1129. Neither......