No. 13382 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

ROBERT S . KETdLER, 

Plaintiff and Petitioner, 

ETHYL SMITH, in her capacity as Clerk 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 

William Anderson, Assistant Attorney General, 

argued, Helena, Montana 

Patrick Springer, County Attorney, Kalispell, 

Montana 

Stewart Pearce, Deputy County Attorney, appeared, 

Ka lispell, Montana 

For Amicus Curiae : 

Daniel J. Shea argued, Missoula, Montana 

Filed : 

s n 4rTf 

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

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 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 81 which provides: 

"Selection. (1) The Governor shall nominate a 

replacement from nominees selected in the manner 

provided by law for any vacancy in the office of 

supreme court justice or district court judge. 

If the governor fails to nominate within thirty 

days after receipt of nominees, the chief justice 

or acting chief justice shall make the nomination. 

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. If the nomination is not confirmed, the office shall be 

vacant and another selection and nomination shall 

be made. 

"(2) 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. 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. 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 all elections held by 

the people, the person or persons receiving the 

largest number of votes shall be declared elected." 

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 

I' (Mark an "x" before the word "YES" if you wish the 
justice to remain in office. Mark an "xu before 

the word "NO" if you do not wish the justice to 

remain in off ice. ) " 

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

no candidate for the office of 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 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 off ice? 

"/ YES "= NO 

"(Mark an "x" before the word "YES" if you wish 

the judge to remain in office. Mark an "xu before the word "NO" if you do not wish the judge 

to remain in office. ) " 

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. Anaconda 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 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 incumbent 
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 sentence 

of the subdivision clearly refers to an incumbent appointed by 

the Governor to fill a vacancy as provided in subdivision (1) 

because such incumbent is the only incumbent subject to confirmation by the state senate. Likewise the third and final 

sentence of subdivision (2) can only refer to an incumbent appointed by the Governor to fill a vacancy as provided in subdivision (1) because such incumbent is the only rejected incumbent for which another selection and nomination is possible. 

Thus the word "incumbent" in the second sentence of subdivision 

(2) has the same meaning as the word "incumbent" in the other two 

sentences of the subdivision, and the language means that unopposed incumbent district judges and supreme court justices 

originally appointed by the Governor to fill a vacancy as provided 

in subsection (1) must run in the general election on an approval 

or rejection 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 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: 

"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 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 

Montana 

of the framers of the 1972/C3onstitution 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: 

"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 construction will 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 we perceive none for requiring unopposed incumbent 

appointees to run on an approval or rejection basis in each 

succeeding election, while exempting other unopposed incumbent 

judges or justices from this requirement. In our view, such a 

construction leads to an unreasonable result, while the alternative construction simply promotes the desire of the framers to 

subject all district judges and supreme court justices to approval 

or rejection by the voters whenever they run unopposed. 

Public Policy favors a like construction. A recognized 

authority on statutory construction has used this language: 

"Statutes regulating the rights of citizens to 

vote are of great public interest and, therefore, 

are interpreted with a view to securing for 

citizens their right to vote and to insure 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 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 reelection 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. 

Justice 
We concur: 

Edward T. Dussault, District , sitting in place of Mr. 

Justice James T. Harrison. 

Mr. Justice Wesley Castles: 

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. 

Mr. Justice Gene B. Daly dissents and will file a written 

dissent at a later date.