Keller v. Smith
| Decision Date | 30 August 1976 |
| Docket Number | No. 13382,13382 |
| Citation | 553 P.2d 1002,33 St.Rep. 828,170 Mont. 399 |
| Parties | Robert S. KELLER, Plaintiff and Petitioner, v. Ethyl SMITH, in her capacity as Clerk and Recorder of Flathead County, Montana, Defendant and Respondent. |
| Court | Montana Supreme Court |
Robert S. Keller, pro se.
Robert Woodahl, Atty. Gen., William Anderson, Asst. Atty. Gen., argued, Helena, Patrick M. Springer, County Atty., Stewart A. Pearce, II, Deputy County Atty., appeared, Kalispell, for defendant and respondent.
Daniel J. Shea, argued, Missoula, amicus curiae.
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. Theses 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 8, 1972 Montana Constitution, is ambiguous; that the meaning of this constitutional provision can be ascertained from the proceedings at the Constitutional Convention; that these proceedings clearly show that a substantial majority of the delegates intended to give the voters an opportunity to measure all incumbent district court judges and supreme court justices against either a challenger or their own judicial record; that the presumption of constitutionality of sections 23-4510.1 and 23-4510.2 applies; and therefore these two statutes are constitutional as applied to all incumbent judges and justices whether originally elected or appointed.
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:
Article VII, Section 8, which provides:
'(3) If an incumbent does not run, there shall be an election for the office.'
Article IV, Section 5, provides:
The statutes attacked in this case were enacted by the 1973 Legislature and provide as follows:
'23-4510.1. Form of ballot on retention of incumbent supreme court justice. In the event there is no candidate for the office of supreme court justice or chief justice other than the incumbent, the name of the incumbent shall be placed on the official ballot for the general election as follows:
'Shall (chief) justice (here the name of the incumbent justice is inserted) of the supreme court of the state of Montana be retained in office for another term?
' YES
' NO
' '
'Shall judge (here the name of the incumbent judge of the district court is inserted) of the district court of the _ _ judicial district of the state of Montana be retained in office for another term in office?
' YES
' NO
' '
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:
'* * * If there is no election contest for the office, the name of the incumbent shall nevertheless be placed on the general election ballot to allow voters of the state or district to approve or reject him. * * *'
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...
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