No. 14206 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

LEWIS R. JONES, RALPH L. HERRIOTT et al., 

Plaintiffs and Petitioners, 

HON. THOMAS L. JUDGE, Governor of the 

State of Montana et al., 

Defendants and Respondents. 

Original Proceeding: 

Counsel of Record: 

For Petitioners: 

Ralph L. Herriott argued, Hysham, Montana 

John L. Adams, Jr. Billings, Montana 

Douglas Y. Freeman, Hardin, Montana 

Weymouth D. Symrnes, Billings, Montana 

Hon. Judge Charles B. Sande, argued, ~illinqs, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike NcGrath, Assistant Attorney General, argued, 

Helena, Montana 

Hon. Judge W. W. Lessley argued, Bozeman, Montana 

Submitted: 

Decided: - - . 41:3 'b?? Filed: 
Hon. Peter G. Meloy, District Judge, sitting, delivered the Opinion 

of the Court. 

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 

93-71 1. 

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 93-71 0 and 93-71 1. 

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 (I), 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 anbiguous 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, -28'2 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, (19241, 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. 873; 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 

of the 

adoption/judicial article in 1972, the legislature met in 

annual sessions and that subsequently the Constitution was 

amended to provide biennial sessions. From this event petitioners 

seem to contend the judicial article is not what the people 

desire at this time. To achieve the result that petitioners 

desire, this Court would have to insert language into subsection 

(1) of the judicial article. This Court has no such authority. 

Neither can this Court accept petitioners' 

contention that the judicial appointment process is violative of 
and repugnant to the following provisions of the 1972 

Montana Constitution: Article 11, Section 1; Article 111, 

Section 1; and Article V, Section 13. 

Article 11, Section 1, provides: 

"Popular Sovereignty. All pol i tical power 

is vested in and derived from the people. 

All government of right originates with 

the people, is founded upon their will 

only, and is instituted solely for the 

good of the whole." 

Article 111, Section 1, provides for the separation 

of the powers of the government into three distinct branches, 

and Article V, Section 13, governs the impeachment process. 

The Constitution must be considered as a whole. 

State ex rel. Livingstone v. Murray, (1960), 137 Mont. 557, 

354 P.2d 552. All of the provisions of the Constitution bearing 

upon the same subject matter are to receive appropriate 

attention and be construed together. Cottingham v. State 

Board of Examiners, (1958), 134 Mont. 1, 328 P.2d 907. 

The provisions contained in Article 11, Section 1; 

Article 111, Section 1; and, Article V, Section 13 apply 

only generally to the judicial nominating process as established 

in Montana, whereas the provision in Article VII, Section 8 

relates specifically to the filling of judicial vacancies. 

In the construction of constitutions, broad and 

general provisions which tend in some measure to conflict 

with the specific ones are controlled by the specific 

provision. British-American Oil Producing Co. v. State Board 

of Equalization, (1936), 101 Mont. 293, 54 P.2d 129, 

affirmed 299 U.S. 159, 57 S. Ct. 132, 81 L Ed 95; State ex re1 

Corry v. Cooney, (1924), 70 Mont. 355, 225 P. 1007. 

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