No 14276 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 78 

JOHN E. EMERY, 

Petitioner, 

-vsSTATE OF MONTANA et al., ATTORNEY GENERAL MIKE GREELY, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

John E. Emery, Pro Se, Deer Lodge, Montana 

For Respondent : 

Mike Greely, Attorney General, Helena, Montana 

This cause was submitted on briefs. 

Submitted: May 25, 1978 

Decided: jun 1 1948 

Filed: . ??I8 .JUP A 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

John E. Emery filed in this Court on April 27, 1978, his 

written petition, pro se, praying for a writ of mandate out of 

this Court to the respondent State of Montana and all other persons having authority to act, or for any other kind of relief, 

that would protect the claimed voting rights of petitioner to 

vote personally or by absentee ballot in the upcoming primary 

and general elections to be held in the State of Montana. . 

Those elections pertain to the election of federal and 

state officers as well as local county officers. 

Petitioner alleges he is an American citizen, 27 years 

of age, and sound physically and mentally. He alleges that he 

is not now registered to vote; that he wishes to be registered 

and to exercise his voting rights; but, that he has been denied 

such registration by Bonnie Miller, County Clerk and Recorder of 

Powell County, Montana, and ex officio County Registrar of that 

county. His petition further reflects that the denial of registration by the County Registrar is the result of opinions given 

by James Masar, County Attorney of Powell County, and by Mike 

Greely, Attorney General of the State of Montana. 

The salient allegation of his petition is that John E. 

Emery is a convicted felon, serving a prison sentence in the 

Montana State Prison at Deer Lodge, in Powell County, arising 

out of a judgment of conviction and sentence of imprisonment imposed by the District Court, Thirteenth ~udicial District, in 

Yellowstone County, Montana. 

The petition does not set forth the county of his residence, if in Montana, prior to Emery's incarceration, nor specify 

the crime for which he is imprisoned, except to state he was convicted of a felony. 
Insofar as they impede or restrict his voting rights, 

Emery attacks the constitutionality of Article IV, Section 2, 

1972 Montana Constitution, and of sections 23-2701 and 23-3022, 

R.C.M. 1947, set out more fully below, on the ground that these 

state constitutional and statutory provisions deny him equal 

protection of the law under the Fourteenth Amendment to the 

United States Constitution. 

Emery also contends he has not been disenfranchised, in 

spite of his incarceration, because the sentencing judge in the 

District Court didnottin sentencing, follow the provisions of 

section 95-2227, R.C.M. 1947, which, again, we will explain more 

fully below. 

On receipt of the petition on April 28, 1978, this Court 

directed the Attorney General to respond to the petition and 

serve the same within 20 days, and provided for notice to be 

given to the Attorney General, the Powell County attorney, and 

the Powell County clerk and recorder, and further ordered an 

abeyance until the response was served and filed. 

The Attorney General filed herein his written response 

to the petition on May 17, 1978, and his brief after an extension 

granted on May 23, 1978, each instrument certifying service by 

mail on the petitioner. On May 25, 1978, we ordered the matter 

submitted and taken under advisement. We now decide the petition 

on its merits, deny the petition for writ of mandamus or other 

relief against any respondent, named or unnamed, and dismiss the 

application for the reasons following. 

The 1972 Kontana constitutional provision against which 

Emery's objection is raised, Article IV, Section 2, provides in 

full: 

"Qualified elector. Any citizen of the United 

States 18 years of age or older who meets the 

registration and residence requirements provided 

by law is a qualified elector unless he is serving 

a sentence for a felony in a penal institution or 

is of unsound mind, as determined by a court." 
The statutory qualifications of a voter in Montana are 

provided in section 23-2701, R.C.M. 1947: 

"Qualifications of voter. (1) No person may 

be entitled to vote at elections unless he has 

the following qualifications: 

"(a) He must be registered as required by law; 

" (b) He must be eighteen (18) years of age or 

older; 

" (c) He must be a resident of the state of 

Montana and of the county in which he offers 

to vote for at least thirty (30) days; 

"(d) He must be a citizen of the United States. 

"(2) No person convicted of a felony has the 

right to vote while he is serving a sentence 

in a penal institution. 

"(3) No person adjudicated to be of unsound 

mind has the right to vote unless he has been 

restored to capacity as provided by law." 

(Emphasis supplied. ) 

The pertinent portion of section 23-3022, R.C.M. 1947, to 

which Emery objects, states: 

"Residence, rules for determining. For registration or voting, the residence of any person shall 

be determined by the following rules as far as 

they are applicable. 

"(2) A person may not gain or lose a residence 

while kept involuntarily at any public institution not necessarily at public expense, while 

confined in any public prison * * *." 

Attached to Emery's petition is a memorandum of authorities, 

in which he cites two decisions in support, namely Evers IJ. Davoren, 

(Massachusetts Supreme Judicial Court Docket No. J74-118 CI), an 

unreported decision for the Massachusetts Supreme Court dated 

October 19, 1974, and O'Brien v. Skinner, (1974), 414 U.S. 524, 

While Evers is unreported, the Attorney General has located a law review article discussing the case in 3 Mew England 

Journal on Prison Law 251 (1976). Massachusetts has a constitu- 
tional provision that every citizen 18 years of age and upwards, 

"excepting persons under guardianship and persons temporarily or 

permanently disqualified by law because of corrupt practices in 

respect to elections" shall have a right to vote. (Massachusetts 

Constitution, Article 111.) Evers brought suit against the Massachusetts Secretary of State, Davoren, as election officer, to 

obtain a determination that inmates of a Massachusetts correctional 

institution are entitled to vote by use of an absentee ballot. The 

parties stipulated that these inmates in Massachusetts retain the 

right to vote, but that their right could only be exercised in 

the event of a furlough. By a 1925 statute, such inmates were 

denied the right to an absentee ballot. The court in Evers held 

the 1925 act unconstitutional, saying the legislature could not 

distinguish among classes of persons who are absent or unable to 

vote because of physical disability, and that all voters in each 

category--"absentw or "physically disabledn--must be given equal 

access to absentee ballots. 

It is obvious that Evers gives no support to Emery's 

petition. The Massachusetts Constitution does not exclude persons from voting during incarceration in a penal institution. 

Montana, as we have shown, does exclude such persons. 

Similarly, O'Brien v. Skinner, supra, does not aid Emery's 

petition. That case covers 72 New York persons who were, at the 

time of the action, in confinement awaiting trial or pursuant 

to misdemeanor convictions. No one was subject to any voting 

disability, as the United States Supreme Court noted: 

"It is important to note at the outset that the 

New York election laws here in question do not 

raise any question of disenfranchisement of a 

person because of conviction for criminal conduct. As we noted earlier, these appellants 

are not disabled from voting except by reason 

of not being able physically--in the very literal 

sense--to go to the polls on election day or to 
make the appropriate registration in advance 

by mail. The New York statutes are silent 

concerning registration or voting facilities 

in jails and penal institutions, except as they 

provide for absentee balloting. If a New York 

resident eligible to vote is confined in a 

county jail in a county in which he does not 

reside, paradoxically, he may secure an absentee 

ballot and vote and he may also register by 

mail, presumably because he is 'unavoidably 

absent from the county of his residence.' 1J.Y:: 

Election Law S117 (1) (b) (1964) . 

"Thus, under the New York statutes, two citizens awaiting trial--or even awaiting a decision whether they are to be charged--sitting 

side by side in the same cell, may receive 

different treatment as to voting rights. As 

we have noted, if the citizen is confined in 

the county of his legal residence he cannot 

vote by absentee ballot as can his cellmate 

whose residence is in the adjoining county. 

Although neither is under any legal bar to 

voting, one of them can vote by absentee ballot and the other cannot." O'Brien, 414 U.S. 

at 528-529. 

The United States Supreme Court held that New York's refusal to allow incarcerated persons awaiting trial or convicted 

of misdemeanors to vote by absentee ballot or otherwise violated 

the equal protection clause of the United States Constitution, 

saying: 

"New York's election statutes, as construed by 

its highest court, discriminate between categories of qualified voters in a way that, as 

applied to pretrial detainees and misdemeanants, 

is wholly arbitrary. * * * The New York statutes, 

as construed, operate as a restriction which is 

'so severe as itself to constitute an unco.nstitutionally onerous burden on the * * *. exercise 

of the franchise.' Rosario v. Rockefeller, 410 

U.S. 752, 760 (1973). Appellants and.others 

similarly situated are, as we have noted, under 

no legal disability impeding their legal right 

to register or to vote; they are sinply not allowed to use the absentee ballot and are denied 

any alternative means of casting their vote 

although they are legally qualified to vote." 

O'Brien, 414 U.S. at 530. 

Again, it is apparent that the voters in O'Brien were 

entitled to vote under the laws of their state. This essential 

difference distinguishes the case from that of Emery here. O'Brien 

was a case of impermissible discrimination among members of the 
same class--some persons, incarcerated outside their county of 

residence, could vote by absentee ballot, while those prisoners 

in jail in their home counties were denied that privilege. 

While Evers and O'Brien are not what Emery hoped they 

were--that is, dispositive of his petition in his favor--we 

cannot rest our examination of the problem posed by Emery's petition on our finding that these cases are not applicable. Emery's 

petition poses a deeper question, not touched by either Evers 

or O'Brien: Is it constitutional, under the equal protection 

clause of the United States Constitution, for the 1972 Montana 

Constitution to deny voting rights to incarcerated felons, as 

Article IV, Section 2, of our Constitution now provides: If not, 

then not only Article IV, Section 2 must fall, but also the 

statutes implementing that clause, including section 23-2701, 

R.C.M. 1947, which determines the qualifications of eligible 

voters in Montana. Indeed, if Article IV, Section 2 offends the 

United States Constitution, it also is invidious to Article 11, 

Section 4, 1972 Montana Constitution, which also provides "no 

person shall be denied the equal protection of the laws". The 

similar provisions of the equal protection clause of the United 

States Constitution and the equal protection clause of the 1972 

Montana Constitution provide generally equivalent but independent 

protection in their respective jurisdictions. See, Department 

of Mental Hygiene v. Kirchner, (1965), 62 Cal.2d 586, 43 Cal.Rptr. 

329, 400 P.2d 321. 

By way of dictum, the United States Supreme Court has 

said that states can, within limits, specify the qualifications 

of voters in both state and federal elections, pointing out that 

the United States Constitution, Article I, Section 2, includes a 

provision that makes voter qualifications rest on state laws. 

Gray v. Sanders, (1963), 372 U.S. 368, 83 S.Ct. 801, 9 L ~d 2d 821. 

Minors, felons and other classes may be excluded. 372 u.S. at 380. 
In ~assiter v. Northampton Election Board, (1959), 360 

U.S. 45, 51, 79 S.Ct. 985, 3 L Ed 2d 1072, the Supreme Court 

said "* * * there is a wide scope for the exercise of its [the 

state's] jurisdiction", and again in dictum said that "Residence 

requirements, age, previous criminal record * * * are obvious 

examples indicating factors which a State may take into consideration in determining the qualifications of voters." See also, 

Davis v. Beason, (1890), 133 U.S. 333, 348, 10 S.Ct. 299, 33 

L.ed. 637, and Murphy v. Ramsey, (1885), 114 U.S. 15, 5 S.Ct. 747, 

29 L.ed. 47. 

But the more recent case of Richardson v. Ramirez, (1974), 

418 U.S. 24, 94 S.Ct. 2655, 41 L Ed 2d 551, settles the power of 

states to exclude felons from its voting lists. California has 

state constitutional provisions which require that persons convicted of felonies be excluded from voting by law (Article XX, 

Section 11, California Constitution), and that no person convicted 

of an infamous crime shall ever exercise the privilege of an elector (former Article 11, Section 1). California implemented its 

constitutional provisions with statutes that prevent a felon from 

voting, even after release from incarceration, such disability to 

continue until relieved by court order after probation was served 

(California Penal Code (Supp. 1974), section 1203.4), or executive 

pardon following imprisonment (California Penal Code (1970), section 4852.01). Thus, California's exclusionary rules regarding 

voting by felons are harsher than Montana's, which apply only 

during imprisonment. The United States Supreme Court, albeit 

by a divided court, upheld the California constitutional and 

statutory provisions when tested against the language of the equal 

protection clause of Section 1 of the Fourteenth Amendment. he 

Court looked to Section 2 of the Fourteenth ~mendment, and because 

that section permitted states to deny voting rights for "partici- 
pation in rebellion or other crime", it found that Section 1 was 

not intended to prohibit disenfranchisement where Section 2 sanctioned it. 418 U.S. at 41-55. If the "more modern view" is to 

rehabilitate the ex-felon by extending voting privileges, that was 

up to the people of California, and not the Supreme Court. 418 

U.S. at 55. We find, therefore, the provisions of Montana's Constitution excluding incarcerated felons from sufferage are constitutionally permissible under the equal protection clause, both in 

the federal and state constitutional versions. Further, section 

23-2701, R.C.M. 1947, defining the qualifications of electors also 

passes constitutional muster. 

Likewise, Emery's attack against section 23-3022, R.C.M. 

1947, is without basis. Residency requirements for voting are a 

proper constitutional function of state law. See, Lassiter v. 

Northampton Election Board, supra. Moreover, section 23-3022 protects both prisoners and the state. Thus, a felon convicted and 

imprisoned in Montana who is not a resident of our state at the 

time of conviction does not gain residency for vcting purposes 

during his jail term. A Montana resident will not lose his voting 

residence because of incarceration, where his county of residence 

is outside the county of the penal institution. Counties where 

penal institutions are located will not have the impact of voting 

residencies otherwise acquired by incarceration. There are salutary 

reasons for the provisions of section 23-3022, one of which is that 

the residency of a felon for voting purposes is not affected when 

he returns to his county of residence after release. There is 

nothing about the operation of section 23-3022 which is an onerous 

restriction on Emery's right to vote. Rosario v. Rockefeller, 

(1973), 410 U.S. 752, 93 S.Ct. 1245, 36 L Ed 23 1. 

The final contention to be dealt with, arising out of this 

petition, is the argument that Emery is entitled to vote because 
the sentencing judge did not in Emery's sentence foilow the provisions of section 95-2227. The pertinent part of that statute 

is: 

"Effect of conviction. (1) Conviction of any 

offense shall not deprive the offender of any 

civil or constitutional rights except as they 

shall be specifically enu~nerated by the sentencing judge as necessary conditions of the 

sentence directed toward the objectives of 

rehabilitation and the protection of society. 

"(2) No person shall suffer any civil or constitutional disability not specifically included 

by the sentencing judge in his order of sentence." 

We need not belabor this question very long. The constitutional provisions of Article IV, Section 2 respecting incarcerated 

felons are mandatory and prohibitory. See, State v. Toomey, (195;), 

135 Mont. 35, 335 P.2d 1051. They are also self-executing, and 

a statutory enactment neither adds to nor detracts from their fo~ae. 

Colwell v. City of Great Falls, (1945), 117 Mont. 126, 157 P.2d 

1013. The constitutional restrictions on Emery's sufferage rights 

while he is in prison are effective regardless of whether the 

court added or omitted such restrictions in the sentence given 

Emery. Neither the court nor the legislature can alter the constitutional restrictions thus imposed. No11 and Kenneady v. City 

of Bozeman, (1975), 166 Mont. 504, 534 P.2d 880. 

Petitioner's application for a writ or other relief is 

dismissed in all respects. .A- --... A