### 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: -

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. 41:3 

## 'b?? Filed:

### Hon. Peter G. 

### Meloy, District Judge, sitting, delivered the Opinion of the Court. This isan original proceeding seeking a declaratory judgment from this Court on the constitutionality of section 93-710, et seq., R.C.M. 

### 1947. These statutesprovide in part that individuals nominated forjudicial vacancies be confirmed by the Senate, but 

### that

### a nomination made while the Senate isnot 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 Stateof 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 Stateof Montana. Respondents filed a motion to dismiss and the Court dismissed the action asto 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 Stateof Montana and Associate Justice of the Supreme Court of Montana."The motiontodismiss as to the other respondents

was heard atthe time ofthe hearing on the merits on March 31, 1978. It ispetitioners' contention that individuals appointed to fill judicial vacancies must run for office atthe next succeeding primary. The' crux of petitioners' argument isthat Article VII, Section 8, 1972 Montana Constitution, isambiguous. The thrust of the complaint isthat sections 93-710 and 93-711 are unconstitutional. The basis for the contentions isconsidered later inthis Opinion. Respondents initiallycontend petitioners lack standing to invoke thejudicial power of this Court. Inaddition, respondents contend the mandates of Article VII, Section 8, as tojudicial vacancies are unambiguous and therefore not subject to any construction by this Court. The first issue iswhether petitioners have standing to invoke the Court's judicial power. The rule iswell-established inMontana that only those who are adversely affected by a statutewill be heard to question itsvalidity. Chovanak v. Matthews, (1948), 120 Mont. 520, 188 P.2d 582. Chovanak stated that as a general rule, private citizens may not restrainofficial acts when they fail to allegeand prove damages tothemselves differing incharacter from that sustained by the general public. The righttovote, however, isa personal and constitutional right. Although stature as an elector will generally not allow an individual to bring an action invokingthejudicial power, an elector who isdenied this right is sufficientlyaffected to invoke thejudicial power to challenge the validity ofthe Act which denies him the right. The second issue iswhether thejudicial nominating process as established inMontana isconstitutional. Article VII, Section 8, 1972 Montana Constitution, isdivided intothree 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 relyon the language inKeller

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". Petitionersargue that because of a so-called "ambiguity" insubsections (2) and (3) that subsection (1) isalso 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 isnot insession shall be effective as an appointment until the end of the next session." There isnothing anbiguous about this language. When the words ofa statute are plain, unambiguous, direct and certain, itspeaks for itselfand there isnothing for the court toconstrue. 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 inwhich they are usually

### understood. Stateex 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 isunequivocally clear so that when ajudicial 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 clarityof any other language in this 

### section. Petitioners use of Yunker 

### v. Murray, supra, issimilarly inappropriate. Because the language isunambiguous there 

### is nothing for the Court toconstrue. The statutescomplained of arederived directly from the unambiguous language of the 1972 Montana Constitution. Petitioners point out that atthe time of the of the adoption/judicial articlein 1972, the legislaturemet in annual sessions and that subsequently the Constitution was amended to provide biennial sessions. From this event petitioners

seem tocontend thejudicial article isnot what the people desireatthis time. To achieve theresult thatpetitioners desire, this Court would have to insert language into subsection (1) of thejudicial article. This Court has no such authority. Neither can this Court accept petitioners' contention that thejudicial appointment process is

### violativeofand 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 political power isvested 

### inand derived from the people. All government of 

### right originates with the people, isfounded upon their will only, and isinstituted 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 subjectmatter aretoreceive 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 

### inArticle 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 arecontrolled by the specific provision. British-American Oil Producing Co. v. StateBoard of Equalization, (1936), 101 Mont. 293, 54 P.2d 129, affirmed 299 U.S. 159, 57 S. 

### Ct. 132, 81 

### L Ed 95; Stateex re1 Corry 

### v. Cooney, (1924), 70 Mont. 355, 225 

### P. 1007.

vaca Comp The established procedur ncies in Montana areconstituti laint

### isdismissed. es for fillingjudicial 

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