### No. 13382 INTHE 

### SUPREME COURT OF 

### THE STATE OF MONTANA 1976

ROBERT S

# .KETdLER, Plaintiff and Petitioner,

ETHYL SMITH, inher capacityasClerk and Recorder of Flathead County, Montana, Defendant and Respondent.

ORIGINAL PROCEEDING:

Counsel of Record: For Petitioner: Robert S. Keller argued, Kalispell, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana WilliamAnderson, Assistant Attorney General,

argued, Helena, Montana Patrick Springer, County Attorney, Kalispell,

Montana Stewart Pearce, Deputy County Attorney, appeared,

Kalispell, Montana For Amicus Curiae: Daniel J. 

### Shea argued, Missoula, Montana

Filed: 

# sn 4rTf 

### Submitted: August 10, 1976Mr. Justice Frank I. Haswell delivered the Opinion of the Court. This 

### is an original proceeding seeking a declaratory judgment from this Court on the constitutionalityof sections 23-4510.1 and 23-4510.2, R.C.M. 1947. These statutesprovide for a general election ballot on retention or rejection of all unopposed incumbent districtcourt 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 intheir official capacities. Ex parte presentation of the petition was made and this Court setthematter for adversary hearing. We granted leave to Daniel J. Shea, a registered voter and taxpayer of Missoula County, Montana toappear asamicus curiae; ordered the Governor and Secretary of Statejoined as additional defendants; and ordered notice tobe given to theAttorney General and the 56 county attorneys inMontana. Briefs were filed and oral arguments heard. Thereafter this Court accepted original jurisdiction of thisproceeding; ordered the petition amended; ordered allunopposed incumbent districtjudges joined; ordered service on all the above persons; and ordered responsive pleadings tobe filed by alldefendants. Supplemental briefs 

### were filed and additional oral argument presented on behalf of the parties and amicus curiae. Atthe 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 tounopposed incumbent district court judges and supreme court justices running inthe general election who 

### were not originally appointed by the Governor to fillvacancies and confirmed by the state senate.The crux of petitioner's argument 

### is that ArticleVII, 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 tounopposed incumbent judges and justices originally selected by the Governor to fillvacancies and subsequently confirmed by the state senate; and that sections 23-4510.1 and 23-4510.2 are therefore unconstitutional.asapplied tounopposed incumbent judges and justices not originally selected by the Governor and confirmed by the 

### state senate to fillvacancies 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 themeaning of this constitutional provision can be ascertained from the proceedings atthe Constitutional Convention; that these proceedings clearly show that a substantial majority of the delegates intended togive the voters an opportunity to

measure allincumbent district court judges and supreme court justices against either 

### a challenger or their own judicial record; that the presumption of constitutionalityof sections 23-4510.1 and 23-4510.2 applies; and therefore these two statutes areconstitutional asapplied toallincumbent judges and justices whether originally elected or appointed. Amicus supports the defendants' position and additionally points out that the legislature had no difficulty indetermining themeaning of ArticleVII, Section 8, 1972 Montana Constitution,



### as indicated by enactment of sections 23-4510.1 and 23-4510.2; and that there 

### isno 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: ArticleVII, 

### Section 81

### which provides: "Selection. (1)

### The Governor shall nominate a replacement from nominees selected in the

### manner provided by law for any vacancy inthe office of supreme court justice ordistrictcourtjudge. If the governor failstonominate within thirty days after receipt of nominees, the chief justice or acting chief justice shallmake the nomination. Each nomination shall be confirmed by the senate, but a 

### nomination made while the senate is 

### not in session shallbe effectiveasan appointment until the end of the next session. If the nomination 

### isnot confirmed, the office shallbe vacant and another selection and nomination shall be made. "(2) If, atthe firstelection after senate confirmation, and atthe electionbefore each succeeding term of office, any candidate other than the incumbent justice or districtjudge files for election tothat office, the name of the incumbent shall be placed on the ballot. If there is 

### no electioncontest for the office, the name of the incumbent shall nevertheless be placed on the general electionballot to allow voters of the stateor districttoapprove or reject him. If 

### an incumbent is

### rejected, another selection and nomination shall be made. "(3) If an incumbent does not run, there shall be an election for the office." Article IV, 

### Section 5, 

### provides: "Result of elections. In allelections held by the people, theperson or persons receiving the largest number of votes shall be declared elected." The statutesattacked inthiscasewere 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 officeof 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 (herethe name of the incumbent justice is 

### inserted) of the supreme court of the stateof Montana be retained inoffice for another term? 

### "/ YES

I' 

### (Mark an "x" before the word "YES" if you wish thejustice to remain inoffice. Mark an "xubefore the word "NO" if you do not wish the justice to remain inoffice.)

## "

"23-4510.2. Form of ballot on retention of incumbent districtcourt judge. In the event there 

### is no candidate for the officeof district court judge in a judicial district of the 

### state other than the incumbent, the name of the incumbent shall be placed on the official ballot for the general election as follows: "Shall judge (here the name of the incumbent judge of the districtcourt is inserted) of the district court of the judicial districtof the 

### state of Montana be retained inoffice for another 

### term inoffice? 

## "/ YES 

# "= NO "(Mark an "x" before the word "YES" if you wish the judge toremain inoffice. Mark an "xubefore the word "NO" if you do not wish the judge toremain inoffice.)

### " The crux of the issuebefore us 

### is themeaning of the second sentence of subdivision (2) of ArticleVII, Section 8, 1972 Montana Constitution. Specifically, does 

### it mean that all 

### - incumbent districtjudges and supreme court justices who are unopposed must run on an approval or rejection ballot inthe 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, 160Mont. 175, 500 P.2d 921, cert.den. 410 U.S. 931, 93 S.Ct. 1372, 35 L Ed 2d 593; Vaughn & Ragsdale Co. v. StateBoard of Equal., 109 Mont. 52, 96 P.2d 420; Stateex 

### rel. Dufresne v. Leslie, 100Mont. 449, 50 P.2d 959; State ex rel. Gleason v. Stewart, 57 Mont. 397, 188 P. 904. In determining themeaning 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 firstbe determined from the plainmeaning of the words used, if possible, and if the intent can be sodetermined, the courtsmay not go further and apply any other means of interpretation. Dunphy v. Anaconda Co., 151Mont. 76, 438 

### P.2d 660, and cases cited therein. Can the intentof the provision be determined by the plainmeaning of the words used? The second sentence of subdivision (2) reads: 

## " 

## * 

# * * If there is

### no electioncontest for the office, the name of the incumbent shall nevertheless be placed on the general election ballot toallowvoters of the stateor district toapprove or reject him. 

## * * *" The key word is 

### "incumbent". Is it 

### used inthe same
sense that it 

### is 

### used inthepreceding sentence of the subdivision torefer to

### a judge orjustice appointed by the Governor tofill

a vacancy and subsequently confirmed by the state senate

## -- "If, atthe firstelection after senateconfirmation, and atthe 

## - electionbefore each succeeding 

### termof office, any candidate other than the incumbent justice or district judge filesfor election to that office, the name of the incumbent shall be placed

on the ballot

## * * *" and inthe following sentence of the subdivision

## -- " 

## * * 

## * If an incumbent is

### rejected, another selection and nomination shallbe made." Or, 

### on the other hand, is it 

### used torefer to any incumbent irrespective of initial election or 

## - appointment? (Emphasis added.) In common usage, the word "incumbent" means "a person who is 

### inpresent possession of an office

## * * 

## *." Black's Law 

### Dictionary 4th Ed. 

### Rev. It is

### not limited, qualified orrestricted by themethod by which one attained the office. Thus, if the second sentence of the subdivision 

### is isolated from the firstand third sentences of the subdivision, the language could mean that allincumbent

### districtjudges and supreme court justices who areunopposed must run on an approval or rejection ballot inthe general election. On the other hand, if we construe the language inthe context of the entire subdivision a contrary result can be reached. The word "incumbent" in the firstorpreceding sentence of the subdivision clearly refers toan incumbent appointed by the Governor tofilla vacancy asprovided in subdivision (1) 

### because such incumbent is 

### the only incumbent subject toconfirmationby the state senate. Likewise the third and final sentence of subdivision (2) can only refer toan incumbent appointed by the Governor tofilla vacancy asprovided insubdivision (1)

### because such incumbent is 

### the only rejected incumbent for which another selection and nomination is

### possible. Thus the word "incumbent" inthe second sentence of subdivision (2) has the 

### same meaning astheword "incumbent" in the other two sentences of the subdivision, and the language means that unopposed incumbent districtjudges and supreme court justices originally appointed by the Governor to filla vacancy asprovided insubsection (1)

### must run inthe general electionon an approval

orrejection ballot. 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 thebest indication of the intentof the framers is 

### found in the explanatory notes asprepared by the Constitutional Convention. These provide inpertinent part, following Article VII, 

### Section 8, 

### 1972 Montana Constitution: "Convention Notes "Revises 1889 constitution

# * * * Contested election

### of judges is not changed, however if a judge in office does not have an opponent in an election his name will be put on the ballot anyway and the people asked to approve or reject him 

## * 

## * 

## *." This expresses the intent of the delegates to the Constitutional Convention and themeaning 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 Montana of the framers of the 1972/C3onstitutionwas 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 constructionof 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: "It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. It is said to be a 'well established principle of statutory interpretation that the law favors rational and sensible construction.'" Sutherland, Statutory Construction, 4th Ed., Vol. 2A, Sec. 45.12, p. 37, and cases cited therein. Montana has adopted this principle by statute, section 49-134,R.C.M. 1947. While 

### we do not consider petitioner's contended constructionwill lead to "absurd results" within the meaning of State ex rel. Ronish v. Sch. 

### ~ist. No. 

### 1, 136 Mont. 453, 348 P.2d 797, no rational basis nor reason has been suggested to

us and 

### weperceive none for requiring unopposed incumbent appointees torun on an approval or rejection basis ineach succeeding election, while exempting other unopposed incumbent judges orjustices from this requirement. In our view, such a construction leads toan unreasonable result, while the alternative construction simply promotes the desireof the framers to subject alldistrictjudges and supreme court justices to approval

or rejection by the voters whenever they run unopposed. Public Policy favors a likeconstruction. A recognized authority on statutory construction has used this language: "Statutesregulating the rights of citizens to vote areof great public interest and, therefore, are interpreted with a view to securing for citizens their right tovote and toinsure the election of those officers who are the people's choice." Sutherland, Statutory Construction, 4th Ed., Vol. 3, Sec. 71.15, p. 366, and cases therein cited. This Court has heretofore applied this public policy in favor of the citizen's right tovote inconstruing 

### a statute providing for absentee ballots. Maddox v. Board of StateCanvassers, 116 Mont. 217, 149 P.2d 112. This same public policy applies with equal force inconstruing subsection (2),Article VII, Section 8, 1972 Montana Constitution. For the foregoing reasons, we hold that the intent of the constitutional delegates collectively inusing the word "incumbent" inthe second sentence of subdivision (2),Article VII, Section 8, was that 

### it apply to allunopposed district judges and supreme court justices irrespective of how they originally attained their judicial offices. We therefore construethemeaning of that subdivision torequire allunopposed district judges and supreme court justices running for election or reelection tobe placed on the general election ballot to allow voters of the state or district, 

### as the case may be, to approve

orreject him. Accordingly, 

### we hold sections 23-4510.1 and 23-4510.2, providing for retention orrejection of such justices

or judges constitutional. Weremark inpassing 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 thisbasis 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 inthis case. In the final analysis, the collective intent of the delegates can best be determined by application of the preceding rules of construction tothe ambiguous language used in subsection (2),ArticleVII, 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 districtjudge or supreme court justice running for election or re-election.

Justice

### We concur:

Edward T. Dussault, District



## , sitting in place of Mr.

Justice James T. 

### Harrison.

Mr. Justice Wesley Castles: I 

### concur with themajority except that I

### do not view the Legislative determination of constitutional intent as being persuasive. Other than to indulge in the presumption of constitutionalityof legislation, Ido not give great weight to that principle.

Mr. Justice Gene B. 

### Daly dissents and will file a written dissent at a later date.