No. 90-144 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, ex rel., MARC RACICOT, 

ATTORNEY GENERAL FOR THE STATE OF MONTANA, 

Relator, 

-vsTHE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and 

for the County of Lewis t Clark, and the 

HONORABLE THOMAS C. HONZEL, District ~udge, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Elizabeth S. Baker, Asst. Attorney General, Helena 

For Respondent: 

Garth B. Jacobson, chief Counsel for Secretary of 

State, Helena, Montana 

Patrick E. Melby, Helena, Montana 

Filed: 

Submitted: March 29, 1990 

I 

Clerk 
. . I 1 

OPINION 

Justice John C. Sheehy, dissenting: 

On March 29, 1990, this Court issued an order reversing a 

mandamus issued by District Judge Thomas C. Honzel, in cause no. 

ADV-90-187, in the First Judicial District, Lewis and Clark County, 

entitled "Gene Huntley, applicant v. Mike Cooney, Secretary of 

State of Montana, respondent and the State of Montana, intervenorrespondent." The reversal order of this Court is indefensible for 

the reasons set out below. 

It is difficult to speak in restrained language about the 

Courtls incomprehensible ruling. We had an opportunity to make 

sense out of Constitutional and statutory laws and to serve the 

public policy in support of the State Constitution. Instead, the 

majority have muddied the election process applying to appointees 

to judicial offices, and have created mischief that will take years 

to undo. 

The effect of the majority order is to change the State 

Constitution to make a ten-year term out of a justice's eight-year 

term; and eight-year terms out of two district court six-year 

terms. The majority have deprived the public from electing or 

rejecting the incumbents in those offices in this election year, 

1990, and instead have postponed the voters1 decision on these 

incumbents until 1992. 

The further affect of the majority order is that in 1992, a 

justice will be elected for a term of six years instead of eight 

years, and that two district court judges will be elected for a 

term of four years instead of six years. 

The majority have accomplished these eccentric results in 

spite of their duty to interpret the State Constitution and the 

statutes enacted thereunder in a workable and just fashion, and in 

conformance with the intention of the constitutional delegates. 

In State ex rel. Ronish v. School District No. 1, 136 Mont. 

453, 460, 348 P.2d 797 (1960), this Court said in interpreting the 

Constitution: 
We hold the latter to be the proper interpretation. It 

is immediately seen that the provision does not read Ifall 

children at any time upon reaching their sixth birthday. 

Other provisions of the constitution only require three 

months of school. The legislature has required six 

months. Obviously the framers of the Constitution could 

not have meant all children at anv time upon reaching 

their sixth birthday must be admitted. They must also 

have had in mind a thorouqh system. It would be very 

easv to cite examples of absurd results if such a liberal 

interpretation were made. Statutory or constitutional 

construction should not lead to absurd results if a 

reasonable construction could avoid it. (Emphasis in 

original and added.) 

It is not enough to state as Art. 111, 1 29 of the 

Constitution does: "The provisions of this Constitution 

are mandatory and prohibitory, unless by express words 

they are declared to be otherwise.ff The Constitution 

must receive a broad and liberal interpretation 

consistent with the purpose of the framers and people 

adopting it. (Citing authority.) 

The Constitutional delegates in 1971 spoke out loudly that 

holders of judicial office should be exposed to electoral review. 

Not only are such officers required to run for election at the 

expiration of their terms, but if they are unopposed by any 

candidate for further term of office, their names still must be on 

the ballot for retention or rejection. This extraordinary 

requirement focused on the delegatesf purpose that the exercise of 

judicial power was subject to the scrutiny of the voters and 

subject to their approval or rejection. The majority in this case 

have frustrated that purpose. 

FACTS 

Justice L. C. Gulbrandson resigned in August of 1989, the 

position he held as Justice, Seat No. 1, Montana Supreme Court. 

The Hon. Diane G. Barz of Billings was duly appointed by the 

Governor to fill the vacancy. The term of office for the seat 
began on the first Monday of January, 1983, and would ordinarily 

expire at midnight preceding the first Monday of January, 1991, 

eight years later. The legislature has not met in the interim 

between the appointment of ~iane G. Barz and the final date for 

election filing, March 22, 1990, for aspirants to the judicial 

position beginning the first Monday in January, 1991. Thus, the 

State Senate has not had an opportunity to confirm or reject the 

gubernatorial appointment of Justice Barz. 

On March 14, 1990, well before the closing date for filing, 

Gene Huntley, an attorney from Baker, Montana, submitted to the 

Secretary of State, ~ike Cooney, a declaration of nomination for 

the office of Associate Justice of the Supreme Court of the State 

of Montana, Seat No. 1, presently held by Justice Diane G. Barz. 

Relying on a 1987 opinion of the Attorney General, 42 Op. Att'y 

Gen. No. 31 (1987), the Secretary of State rejected Huntley's 

nomination petition on the ground that the position was not 

eligible to be placed on the ballot in 1990. 

On March 16, 1990, Huntley filed an application for a writ of 

mandamus in the District Court, First Judicial District, Lewis and 

Clark County, requesting that the court order the Secretary of 

State to place the position on the ballot. Huntley v. Cooney, ADV 

90-187, First Judicial District Court, Lewis and Clark County. The 

State of Montana sought and was granted leave to intervene without 

objection. The matter was briefed by all parties and argued before 

the District Court on March 20, 1990. The District Court issued 

its ruling from the bench following the hearing, ordering that the 
declaration of nomination from Huntley be accepted as filed by the 

Secretary of State and determining in effect that the position was 

open for election and eligible to be placed on the ballot in 1990. 

Because of the lateness of the decision, the District Court 

extended the filing deadline from March 22, 1990 to March 30, 1990 

at 5:00 p.m. Following the order of the District Court, the 

Secretary of State accepted the filings of both Gene Huntley and 

~iane G. Barz for the same Supreme Court seat. The oral mandamus 

order of the District Court encompassed not only the seat on the 

Supreme Court but the seats of District Court judges whose 

situations are similar to that of Diane G. Barz. 

Following the issuance of the oral mandamus order by the 

District Court, the Attorney General filed in this cause in this 

Court his petition for writ of supervisory control that the 

mandamus order be vacated. Briefs were supplied, oral argument 

occurred on March 29, 1990, and on the same date, this Court issued 

its order vacating the mandamus granted in the District Court. 

AMBIGUITY 

Art. VII, 5 8(1), 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 amointment 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. (Emphasis 

added. ) 
The Attorney General contends that the underlined sentence in 

the foregoing provision of the Montana Constitution is clear and 

unambiguous. It is indeed as far as it goes. If the subsection 

alone were the only consideration with respect to the term of 

office of the appointee, there should be no difficulty. The 

trouble is the Constitution itself becomes ambiguous on this 

sub j ect . The statutes enacted by the legislature become 

inoperable. This Court stated in Jones v. Judge, 176 Mont. 251, 

255, 256, 577 P.2d 846, 849 (1978), that: 

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. 

At least two provisions of the State Constitution raise an 

ambiguity when considered in connection with Art. VII, § 8 (1) . 

They are Art. VII, 5 7(2) and Art. VII, 5 8(2). 

Art. VII, § 7(2), provides: 

(2) Terms of office shall be eight years for supreme 

court justices, six years for district court judges, four 

years for justices of the peace, and as provided by law 

for other judges . 

Moreover, Art. VII, § 8(2), states: 

(2) If, at the first election after senate confirmation, 

and at the election before each succeedins 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 or nomination shall be made. (Emphasis 

added. ) 
In Keller v. smith, 170 Mont. 399, 553 P.2d 1002 (1976), the 

Court determined the validity of statutes which require the name 

of any unopposed incumbent justice or judge to be placed on the 

ballot for retention or rejection by the voters under the language 

of subsection (2) of Art. VII, 5 8, foregoing. In that case, the 

Supreme court determined that the second sentence of subdivision 

(2) was ambiguous and proceeded to construe it based on extrinsic 

rules of construction. Relying on convention notes from the 

constitutional convention, on the legislative determination of the 

meaning of the constitutional provision because it enacted the 

statutes, and on the principal of reasonableness, as well as on 

public policy, the Supreme Court decided that every incumbent 

holding a judicial office, whether by appointment or election, if 

at election time no other candidate for his or her judicial office 

appeared, had to face retention or rejection at an election by the 

voters. 

Let us first consider the effect of the language in the first 

sentence of subdivision 8(2). It states Itif, 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.I1 The Attorney 

General would have us concentrate only on the phrase Itat the first 

election after senate confirmation," and ignore the second phrase, 

"at the election before each succeeding term of office." The term 

of office which the appointee holds in this case will expire on 

7 
the first Monday of January, 1991 (5 3-2-103, MCA). The elections 

before the lnsucceeding term of office" are the primary and general 

elections of 1990. Properly construed, subdivision 8(2), requires 

an appointee to run at the first election after senate 

confirmation, and also at the election before each succeeding term 

of office, if he or she wishes to remain in office. The Attorney 

General in brief contends that the word 18succeeding11 can only refer 

to the phrase "after senate ~onfirmation,~~ butthat construction 

is grammatically strained. The word nsucceedingft is the present 

participle and verbal noun of the verb Ifsucceedn and hence is an 

adjective in this case. Websterl s International ~ictionary, (2d 

ed. 1934) . As an adjective, "succeeding" modifies the noun l1terrnl1 

which follows immediately. 

It is probable that the constitutional framers, in using the 

word wincumbentll throughout subdivision 8(2) intended that word to 

apply both to appointed and elected holders of judicial office. 

But even if we accept the dictum in Keller v. Smith, supra, 170 

Mont. 399, 553 P.2d 1002, that the first sentence of subdivision 

8(2) refers to an incumbent appointed by the governor to fill a 

vacancy, the first sentence clearly requires the appointed 

incumbent to face an election when two events occur: (1) "at the 

first election after senate confirmati~n~~ and (2) "at the election 

before each succeeding term of office. Under Art. VII, 5 7 (2) , 

a term of office is eight years for a supreme court justice, or six 

years for a district court judge. When a term of office expires, 

through the passage of time, the next term of office is a 
llsucceeding term of off ice. Quite obviously, an appointee, 

holding a judicial position, the term of office of which expires 

before the appointee's senate confirmation, meets the second event 

contained in the first sentence of subdivision 8(2) and must stand 

for election for the succeeding term of office. 

CASE CONSTRUING SUBDIVISION 8(2) 

Such a holding would not conflict with the holding of Jones, 

supra, because of the different factual situation that existed in 

Jones from that existing in the case at bar. Jones concerned the 

appointment of Justice Frank I. Haswell to the unexpired term of 

Chief Justice created by the appointment of then Chief Justice Paul 

G. Hatfield to the United States Senate. 

Chief Justice Hatfield was elected for an eight year term in 

1976, a term of office that would expire on the first Monday in 

January, 1985. To fill the judicial vacancy created by Hatfield's 

acceptance of appointment to the United States Senate, the governor 

appointed then Justice Frank I. Haswell to be Chief Justice of the 

Supreme Court in 1978. The appointment of Chief Justice Haswell 

was confirmed by the State Senate at its regular session in 1979, 

and in the elections of 1980, Chief Justice Haswell successfully 

ran and was elected to serve the balance of the unexpired term. 

He served until the first Monday of January, 1985 and did not seek 

re-election for the succeeding term. 

Jones also applied to the appointment of John C. Sheehy, as 

Associate Justice to fill the vacancy created when Justice Haswell 

accepted the office of Chief Justice. The Hon. Frank I. Haswell 
had been elected in 1974 to the office of Associate Justice of the 

Montana Supreme Court for an eight year term, which would expire 

on the first Monday, in January of 1983. On the appointment of 

Haswell as Chief Justice, John C. Sheehy was appointed on April 17, 

1978 to the vacant office of Associate Justice, and was confirmed 

by the State Senate at its regular session in 1979. In the 

elections of 1980, John C. Sheehy successfully ran for the balance 

of the unexpired term. Two years later, in 1982, in the elections 

before his succeeding term, ~ustice Sheehy was re-elected for a 

further eight year term. 

Thus, under Jones the appointments and subsequent elections 

of Chief Justice Haswell and Justice Sheehy fully complied with the 

mandate of the State Constitution. In each case, their 

appointments were effective until confirmed by the State Senate, 

and in each case, they faced election after Senate confirmation for 

the unexpired term of their offices. The vital factor which 

distinguishes the cases of Chief Justice Haswell and Justice Sheehy 

under Jones from the case at bar is that their terms of office did 

not expire before their confirmation by the State Senate. Thus 

Jones did not consider the full application of Art. VII, 8(2), 

because the problem presented in this case was not presented to the 

court in Jones. The second event of subdivision 8(2) was not an 

issue. 

We have cited foregoing, the case of Keller. It was in that 

case that the Montana Supreme Court determined that all incumbents 

in judicial office, appointed or elected, to which the constitution 
applied, must face election before the expiration of their term of 

office and, if no opponent appeared, the incumbent's name must 

still be submitted to the voters for retention or rejection. There 

would be no inconsistency between Keller and a holding by this 

Court that an appointee, though unconfirmed by the Senate, must 

face election immediately before the expiration of the term of 

office to which he or she has been appointed. The reason is again 

that in Keller, this Court was not faced with the precise problem 

presented here. 

TENURE AND TERM OF OFFICE 

The brief of the Attorney General contends that an appointee 

to a judicial term unconfirmed by the State Senate nevertheless 

continues to hold office until Senate confirmation can be obtained, 

regardless of the expiration of the term of office which the 

appointee holds. The effect, the Attorney General states, is that 

the holding over "merely shortens the tenure of the succe~sor.~~ 

Such a contention goes against express constitutional 

provisions and statutes enacted under those constitutional 

provisions. 

We would concede that the cases cited by the Attorney General 

in brief support his argument that an appointee holding over on an 

expired term of office, if constitutionally permitted, shortens the 

tenure of the successor of the same office. 

The key words foregoing are "if constitutionally permitted.I1 

Neither this Court nor the legislature can act to shorten the terms 

of office provided in the Constitution. In the case at bar, under 
the argument of the Attorney General, if the appointee is not 

confirmed until the regular session of the legislature in 1991, the 

appointee will hold office until the completion of the elections 

in 1992. Thus, the "succeeding term of officelf up for election in 

1992, will be for six years instead of eight years. This 

contravenes Art. VII, 5 7 (2) that terms of office for Supreme Court 

justices shall be for eight years. Further, Art. VII, 5 8 (2) 

requires election "before each succeeding term of officevt and not 

before a succeeding "tenure of office.I1 Art. 11, 5 1 of the 

Montana Constitution requires that all political power be vested 

in and derived from the people. 

There is no statutory support that a Justice of the Supreme 

Court may run for a shortened term. Our statutes provided: 

3-2-101. Number, election and term of office. The 

Supreme Court consists of a Chief Justice and six 

associate justices who are elected by the qualified 

electors of the state at large at the general state 

elections next preceding the expiration of the terms of 

office of their predecessors, respectively, and hold 

their offices for the term of eisht years from and after 

the first Monday in January next succeeding their 

election. (Emphasis added.) 

It is especially on this point that the principle of 

reasonableness in construction of the State Constitution applies, 

as this Court enunciated in Keller, supra: 

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 interpretation1 that 

the law favors rational and sensible constr~ction.~~ 

Sutherland, Statutory Construction, Vol. 2A, sec. 45.12, 

p. 37 at cases cited therein. 

Montana has adopted this principle by statute, section 

49-134, R.C.M. 1947 [§ 1-3-233, MCA]. 

Keller, 553 P.2d at 1007. 

The only reasonable construction of the constitutional 

provisions and the statutes enacted thereunder respecting judicial 

vacancies is that the appointment to fill the vacancy is effective 

if unconfirmed by the Senate, only to the expiration of the term 

of office where the vacancy occurred. 

What has been said foregoing, applies equally to vacancies 

which occur in the offices of District Court judge. There is, 

however, an additional qualification for a district court judge in 

Art. VII, 5 9(4). A district judge is required to reside in his 

district "during his term of off ice. l1 This requirement reinforces 

the argument that a judicial officer holds office for a set term 

of years and is not granted additional lltenurell to which his 

residency would not apply. 

Another factor not considered by the Attorney General is 

imminent and important. There is no doubt that the Governor will 

call the legislature into special session sometime during the month 

of May, 1990. At that session, the names of judicial appointees 

must be submitted to the Senate for confirmation, else the 

appointments fail, the offices become vacant, and additional 

vacancy appointments must be made. A. 1 , 8 (1) . Assuming 
that all the appointees are confirmed by the State Senate, they 

will be required to face election for their unexpired terms or 

their succeeding terms of off ice under subdivision 8 (2) . The 

ruling from this Court that prevents other candidates from placing 

their names in nomination violates Art. 11, 5 1, that all political 

power is vested in the people. 

The problem in this case arises out of this clause: 

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 foregoing quote is a clause because it contains a subject 

and a predicate. It is a dependent clause because it cannot stand 

alone. lvIfw is a subordinate conjunction introducing a condition. 

The condition is "if . . . any candidate . . . files for election 

to that office.11 When may the opponent file? "At the first 

election after senate c~nfirmation.~~ When else? "And at the 

election before each succeeding term of office." The last two 

quoted phrases are adverbial, in that they modify or explain the 

verb "files. 

The conditional clause, in whole, relates only to the opposing 

candidate. The action to be taken to create the condition can be 

taken only by an opposing candidate. The adverbial phrases modify 

only the action to be taken by an opposing candidate. The 

adverbial phrases fix the times when an opposing candidate may file 

for the judicial office. If at one or both of those times an 

opposing candidate does file, the conditional clause is satisfied. 

In the case at bar, the conditional clause has been met. Huntley 
has filed for election against an incumbent "at the election 

beforen the glsucceeding term of office." 

The "termv1 now held by Justice Barz expires on midnight 

preceding January 7, 1991. The Igsucceeding termtg begins on January 

7, 1991, following midnight. In 1990, the primary and general 

elections precede the glsucceeding term. 'I The Attorney General, and 

in effect this Court, acknowledge that the term of office now held 

by Justice Barz does expire at midnight preceding January 7, 1991. 

By some sort of "tenurew not provided for in the Constitution or 

in the statutes, the majority hold that Justice Barz continues in 

office for an additional two years, after the 1992 elections. 

Under the Montana Constitution, Art. VII, 3 7 (2) , and the 

applicable statute (5 3-2-101, MCA), the term of office for a 

justice on the Supreme Court is eight years. Section 3-2-101, MCA, 

provides that persons elected hold their offices for a term of 

eight years. Yet, in 1992, barring vacancies in the interim, the 

Chief Justice seat will be open for an eight year term, Seat No. 

3 will be open for an eight year term, but the candidates filing 

for Seat No. 1 will serve only six years. This is the odd result 

of the majority's refusal to harmonize the state constitutional and 

statutory provisions in the light of public policy, and the evident 

intent of the Constitutional framers. 

Another oddity: There will certainly be a special session of 

the legislature held in May of 1990, this year. That special 

session will precede both the primary and general elections of 

1990. Within ten days after the meeting of the legislature, the 
Governor must transmit to it a list of all appointments made by him 

during the recess of the legislature (5 5-5-301, MCA) . The 

appointments made by the Governor are only "effective as an 

appointment until the end of the next session.^^ (Art. VII, 9 

8 (1) ) . "At the first election after Senate confirmationt1 if a 

candidate files for election to that office, an election must occur 

for the succeeding term. Art. VII, 5 8 (2). Thus, the express 

intent of the legislature will be voided by the majority holding 

in this case because now no election will be held. 

The Attorney General contends that the word tlelectionn in the 

State Constitution means something else besides lfelection.tf He 

contends it means the process, that is the filing for nomination, 

the publication of the ballots and so on. Contra: State ex rel. 

Wulf v. McGrath (1940), 111 Mont. 96, 106 P.2d 183. Obviously, 

when it suits their purposes, the Attorney General and the majority 

find no trouble inserting additional words into the Constitution. 

Forgotten, of course, is that Gene Huntley filed in time for 

nomination to the office. Thus, the right of Gene Huntley, as a 

citizen and lawyer, to offer himself for election and to contest 

the office of Seat No. 1, in an election of the people is 

effectively denied until 1992. 

On the other hand, if Justice Barz were not confirmed by the 

legislature, in special session in May, the office she holds would 

become vacant and another selection and nomination must be made. 

(Art. VII, 5 8 (1) ) . Under the holding of the majority, Gene 

Huntley will still be frustrated in his effort to contest the 
office by election, for the new appointee, under the holding in the 

majority, would hold over l1by tenure" and not by term of office, 

until 1992. 

Another oddity: the seat on the Supreme Court now held by 

Justice John C. Sheehy will expire on January 7, 1991. He has 

announced his intention not to seek re-election, and has not filed 

for the office. Two state lawyers, each eminently qualified, have 

filed properly for election to that seat. Yet, if John C. Sheehy 

should resign on or about June 1, 1990, or for other reasons, the 

seat became vacant before the expiration of his term, a vacancy 

would occur which would be filled by the judicial selection process 

and appointment by the Governor. Because the legislature is not 

likely to meet after May, 1990, the appointee, under the contention 

of the Attorney General and the holding of the majority in this 

case, would hold office until 1992, in spite of the fact that two 

qualified lawyers have filed for election to the new term that 

should begin January 7. 1991. A holding that permits such a 

possible result is simply absurd. 

There are many cases, of course, that hold that an officer 

whose term has expired continues in office until his successor is 

qualified. In every case, this result occurs because of specific 

lansuaqe contained either in the Constitution or the empowering 

statute that the appointed person serves until the successor is 

elected or appointed and cmalified. It has always been the law in 

Montana that such specific language will be required in order to 

grant tenure beyond the expired term. For example, in Marcellus 
v. Wright, 61 Mont. 274, 285, 202 P. 381 (1921), the Montana court 

stated: 

From these authorities it is clear that the term for 

which Judge Briscoe was elected was definitely fixed, 

and as definitely limited to the last minute of the day 

next preceding the first Monday in January following the 

general election at which his successor was elected. 

This is so because the law will not tolerate the thought 

that the tenure of office can begin or end at a time 

other than that fixed by the authority creating the 

office, or in any manner other than that so provided. 

When the duration of the term is specified in the 

statute, and an officer is elected to serve out the term, 

his power and authority thereupon ips0 facto cease, 

unless he is authorized by some specific provision of 

orsanic law to hold over. (Citing authority.) 

Where the latter words are omitted, there is no right by 

which the incumbent can hold over the next general 

election, because the law favors the requirement that all 

officers, whenever possible, shall be elected by the 

people. (Citing authority. ) This is evinced by the care 

exercised by all legislative bodies to guard against 

lapses, where holding over is not deemed necessary or 

desirable for the public good. "Hence the provisions 

fixing the terms of judicial officers must be held to be 

exclusive, with the result that vacancies occur by 

operation of law upon the expiration of the terms 

designated. (Citing Montana authority.) If the 

language employed were of doubtful meaning, that 

interpretation which limits the term to the shortest time 

should be adopted. (Citing authority.) 

A careful reading of the entire Constitution reveals the 

remarkable fact that the declaration found in section 12 

of Article VIII [I889 Constitution], prescribing that 

"the terms of district judges shall be four years" is all 

that is said in that instrument upon the subject. To 

reach a conclusion which satisfies the judicial mind and 

responds directly to the will of the convention, the 

Constitution and the ordinances attached to the former 

must be carefully examined for words best fitted to 

furnish the needed light. The provisions of section 7 

of the same Article, fixing the terms of the members of 

this court, present an analogy of some service in solving 

the problem. It reads, "The term of office of the 

justices of the supreme court, except in this 

Constitution otherwise provided shall be six years." 

Then, in the next section, which provides the time to 

choose those first to be elected, will be found these 
words: IfAt [the] first election the Chief Justice shall 

be elected to hold his office until the general election 

in the year one thousand eight hundred and ninety-two 

(1892), and one of the associate justices to hold office 

until the general election in the year one thousand eight 

hundred and ninety-four (1894); and the other associate 

justice to hold his office until the general election in 

the year one thousand eight hundred and ninety-six 

(1896), and each shall hold until his successor is 

elected and qualified." 

It will be noted that in each of the instances above, the 

word lfuntilwl isused with the evident purpose of limiting 

each term to a definite period of time; and, bearing in 

mind the exigencies always to be apprehended from 

defective election machinery, and public inconvenience 

attending vacancies in public office, there was added the 

following: "And each shall hold until his successor is 

elected and qualified." In section 9 of the same 

Article, too, we find the same exactness of expression 

in fixing the term of the clerk of this court, and the 

point in time and circumstance to which he should hold 

office. As further evidence plainly visible, the terms 

for which all state officers, except judicial officers, 

shall hold are limited in section 1 of the same Article 

VIII to four years, "beginning on the first Monday in 

January next s~cceeding~~ thegeneral election following. 

While that section does not affect judicial officers, the 

language does serve to make all the other elective 

officers of the state begin their official duties at the 

same instant. So that, the words employed in section 6 

of Ordinance No. 2, that Itthe terms of officers so 

elected shall begin when the state is admitted into the 

Union, and shall end on the first Monday in January, 

1893,If affect neither the intent nor object apparent 

throughout the Constitution and the ordinances to bring 

to a close the terms of district judges at 12 ogclock 

midnight preceding the first Monday in January following 

the election in presidential years. This construction 

makes complete harmony in the matter of the beginning and 

ending of the terms of all the state officers, without 

in the least shading the meaning of any of the language 

contained in either enactment. 

The statute providing for an additional district judge 

in the tenth judicial district, and declaring that the 

appointee of the governor shall hold "until the first 

Monday in January, 1919," is entitled to respectful 

consideration by the courts. (Citing cases. ) And unless 

the time fixed by statute is so plainly at odds with that 

prescribed in the Constitution as to be wholly 

inconsistent with it, it is the duty of the court to give 
it such a construction as will enable it to have effect. 

Or to go a little further, when the conflict between the 

Act and the Constitution is not clear, the implication 

must always be that no excess of authority has been 

intended bv the leqislature, and that the seeming 

differences can be reconciled. The court will not go 

beyond the face of the law to seek grounds for holding 

it unconstitutional. (Emphasis added.) 

There are no specific provisions or exact words granting 

tenure beyond the term of off ice in the Constitution. The majority 

reversed this established tenet of the law, and now hold, because 

in their eyes, the plain language of the Constitution does not 

require an unconfirmed appointee to stand for election, tenure is 

granted. Thus does the majority stand on its head the longstanding 

rule that no excessive authority has been intended by the 

legislature or the constitutional framers. 

Finally, the majority in this decision acknowledge that their 

holding is not in conformance with public policy. They must so 

acknowledge, because in Yunker v. Murray, 170 Mont. 427, 434, 554 

P.2d 285 (1976), this Court relied on such public policy in 

interpreting the same provision of the Constitution: 

Additionally, public policy supports our construction. 

In Keller, we quoted a recognized authority: 

"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. (Citing authority.)" 

We apply this principal to Art. VII, B 8(2), 1972 Mont. 

Const., in the context of the issue before us in Keller. 

We apply it here for the same reasons and with the same 

result. 

It is divisive and disharmonious for this Court to oppose 

public policy in its decisions. In this case, the result is 
absurdity. The harm and error will not be undone until eight years 

from the elections in 1990, even should the constitution in the 

meantime be amended. 

What is said foregoing applies equally to the affected 

appointed district judges except that their term of office is 

usually for six years. 

Justice John C. 

I concur in the foregoing dissent. 

V Roy d. ~ode~Giero, 

sitting for Justice 

William E. Hunt, Sr.