No. 90-144 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA ex re1 MARC RACICOT, 

Attorney General for the State of Montana, 

Relator 

THE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and 

for the County of Lewis and Clark, and 

the Honorable Thomas C. Honzel, District 

Judge, 

Respondent. 

ORIGINAL PROCEEDING: supervisory control 

COUNSEL OF RECORD: 

For Relator: 

Marc Racicot, Attorney General, Helena, Montana 

Elizabeth S. Baker, Asst. Attorney General, Helena, 

Montana 

For Respondent: 

Garth B. Jacobson, Chief Counsel, Secretary of 

State, Helena, Montana 

Patrick Melby, Luxan & Murfitt, Helena, Montana 

Filed: 

Submitted: March 29, 1990 

Decided: May 17, 1990 
Justice Fred J. Weber delivered the opinion of the Court. 

The Montana Attorney General petitioned for a writ of supervisory control requesting immediate review of a writ of mandamus 

issued by the First Judicial District Court, Lewis and Clark 

County. The District Court ordered the Secretary of State to 

accept filings for election to a Montana Supreme Court position 

and two district court positions with terms that will expire at 

the end of this year. The District Court held that Art. VII, Sec. 

7 and Sec. 8, Mont. Const., require the nominees currently filling 

the positions to stand for election at the general election 

preceding the expiration of the term to which nominated even though 

the Senate had not yet been in session and therefore had not 

confirmed the nominations. We accept jurisdiction, issue the writ 

of supervisory control, and vacate the District Court's writ of 

mandamus. 

The Montana Attorney General's petition for writ of supervisory control raises the following issues: 

1. Should the Montana Supreme Court accept jurisdiction and 

issue a writ of supervisory control when the District Court's 

interpretation of Art. VII, Sec. 7 and Sec. 8, Mont. Const., 

required judicial elections with a filing deadline of March 30, 

1990? 

2. Do Art. VII, Sec. 7 and Sec. 8, Mont. Const., require the 

Secretary of State to place Montana Supreme Court Justice Position 

Number One, Thirteenth Judicial District Department Four, and 

Eighteenth Judicial District Department Two on the 1990 ballot when 

the Governor filled the positions by nominations and the Senate had 
not been in session and had no opportunity to confirm those 

nominations? 

On August 31, 1989, Justice L. C. Gulbrandson retired from 

Montana Supreme Court Justice Position Number One. Had he 

completed the term, it would have expired on January 6, 1991, see 

§ 3-2-103, MCA, with primary election for his successor on June 5, 

1990, see 5 13-1-107, MCA, and a filing deadline of March 22, 1990, 

see § 13-10-201(6), MCA. Governor Stephens nominated District 

Court Judge Diane Barz to fill the vacant seat. The Governor also 

nominated Maurice Colberg, Jr., to a similar vacancy in Department 

Four of the Thirteenth Judicial District and Larry W. Moran to a 

similar vacancy in Department Two of the Eighteenth Judicial 

District. Because the Senate has not been in session since the 

foregoing nominations, it has been unable to consider confirmation 

of the nominations. 

On March 14, 1990, Gene Huntley attempted to file with the 

Secretary of State a Declaration for Nomination for Justice 

Position Number One. The Secretary of State rejected Mr. Huntleyls 

declaration stating he was bound by 42 Att1y Gen. Op. 31. That 

opinion concluded that no election for a judicial position can 

occur until the Senate has confirmed a serving nominee. 

Mr. Huntley then petitioned the District Court for a writ of 

mandamus. The Court ordered the Secretary of State to either file 

Mr. Huntleyls declaration or to show cause why it had not been 

filed by the hearing date of March 20, 1990. The Attorney General 

was granted permission to intervene. At the show cause hearing, 

the District Court orally granted Mr. Huntleyls petition and 
ordered the Secretary of State to accept the declaration. The 

Court also extended the filing date for election to the affected 

judicial offices from March 22, 1990, to March 30, 1990, but 

reserved the question of Mr. Huntley's request for costs and 

attorney fees for further consideration. 

In response, the Attorney General petitioned this Court for 

a writ of supervisory control asking that the District Court's writ 

of mandamus be dissolved. Mr. Huntley filed a brief on behalf of 

the First Judicial District Court and counsel for Mr. Huntley 

argued. For convenience we will refer to the Respondent as Mr. 

Huntley. As custodian of the election process, the Secretary of 

State intervened on behalf of Montana voters. On March 29, 1990, 

this Court issued a writ of supervisory control reversing and 

vacating the District Court's ruling. Because of the impending 

filing dates, we reserved our written opinion until a later date. 

I. 

Should the Montana Supreme Court accept jurisdiction and issue 

a writ of supervisory control when the District Court's 

interpretation of Art. VII, Sec. 7 and Sec. 8, Mont. Const., 

required judicial elections with a filing deadline of March 30, 

1990? 

In considering whether to accept jurisdiction under a writ of 

supervisory control, this Court has always proceeded on a caseby-case basis and has granted the writ in diverse circumstances. 

We have issued the writ to further judicial economy and to prevent 

procedural entanglements. In many cases we have issued the writ 

to prevent an injustice to the petitioner which would arise if the 
I. 

I 

petitioner were forced to await appeal. Often the particular facts 

of the case required immediate review to prevent a gross injustice 

or to prevent deprivation the petitioner's fundamental rights while 

awaiting appeal. See State v. District Court of the Eighth 

Judicial Dist. (1985), 217 Mont. 106, 114, 703 P.2d 148, 153-54. 

The present case does not fit squarely into any of the 

previous situations in which we have granted supervisory control. 

We do believe, however, that it is appropriate. The District 

Court's decision directly affects Montana voters1 constitutional 

right to elect Supreme Court Justices and District Court Judges. 

It affects the right of judicial candidates to run for those 

offices and the right of the current nominees to occupy those 

offices. The impending filing deadline and the dates of the 1990 

primary and general elections make appeal an inadequate remedy. 

Potential candidates for the offices must know whether they are 

required to file and whether they must begin their election 

campaigns. For these reasons, we accept appellate jurisdiction and 

issue the writ of supervisory control. 

11. 

Do Art. VII, Sec. 7 and Sec. 8, Mont. Const. , require the 

Secretary of State to place Montana Supreme Court Justice Position 

Number One, Thirteenth Judicial District Department Four, and 

Eighteenth Judicial District Department Two on the 1990 ballot when 

the Governor filled the positions by nominations and the Senate had 

no opportunity to confirm those nominations? 
The following constitutional provisions are at issue in this 

case. Art. VII, Sec. 7 (2) , Mont. Const. , provides in pertinent 

part: 

Terms of office shall be eight years for 

supreme court justices [and] six years for 

district court judges . . . . 

Art. VII, Sec. 8, Mont. Const. provides as follows: 

(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. 

We first consider the meaning of the first sentence of 

subsection (2) of Art. VII, Sec. 8, Mont. Const. which states: 
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. 

The Attorney General argues that the plain language of the 

sentence requires elections for the judicial seats only after 

Senate confirmation of the nominees. In his interpretation, the 

language, Ifand at the election before each succeeding term of 

officeI1I is a subordinate clause referring to the phrase Ifat the 

first election after senate ~onfirmation.~~ Because the nominations 

have not been presented to the Senate, and therefore have not been 

confirmed, he argues that there should be no election in 1990. 

Thus, if confirmation does not take place until the legislature 

meets in 1991, the plain language requires the first elections to 

take place in 1992. 

In contrast, Mr. Huntley argues that the plain language 

mandates an election on the expiration of every judicial term. He 

understands the sentence to refer to two different situations. 

The first is covered by the clause "at the first election after 

senate c~nfirmation.~ He points out that it is set off by commas, 

and, therefore, is independent of the second clause, requiring midterm appointees confirmed by the Senate to run at the next general 

election for the unexpired term. The second situation is covered 

by the clause Ifat the election before each succeeding term of 

office. Mr. Huntley asserts that the "andv1 connecting the two 

clauses is a coordinating conjunction, not a subordinating 

conjunction, and should be read as "or. The clause, Ifthe election 
before each succeeding term of officeInn refers to the eight-year 

and six-year terms of office set out in Art. VII, Sec. 7(2), Mont. 

Const. Therefore, he reasons, a judicial office is up for election 

at the general election prior to the expiration of its term even 

if the office is filled by an unconfirmed nominee. He concludes 

that, in the present case, the unconfirmed nominees must stand for 

election in 1990. 

The basic conflict in the partiest interpretations arises from 

the phrase tnsucceeding term of office.I1 Does it refer to terms 

which are to be succeeding terms after the first election following 

Senate confirmation or does it refer back to the eight- and sixyear terms described in Art. VII, Sec. 7, Mont. Const.? In 

resolving disputes of constitutional construction, this Court 

applies the rules of statutory construction. Under those rules, 

the intent of the framers of the Constitution is controlling and 

that intent must first be determined from the plain language of 

the words used. Butte-Silver Bow Local Govtt. v. State (Mont. 

1989), 768 P.2d 327, 330, 46 St.Rep. 87, 90. From the plain 

language of Art. VII, Sec. 8(2), Mont. Const., the Attorney 

General's and Mr. Huntleyts interpretations both appear to be 

plausible. We therefore conclude that the sentence is ambiguous 

as to the present issue. 

The parties raise a number of well-argued contentions in 

support of their respective positions. We will consider each of 

these in turn. 

B. 

Holdovers 

8 
Mr. Huntley argues that under this Court's interpretations 

of the 1889 Constitution an appointee to a vacant judicial office 

may not holdover, remain in office, after the term expires unless 

specifically authorized by a statute or the Constitution. Because 

the Constitution does not authorize holdovers for either Supreme 

Court or ~istrict Court positions, he reasons that elections must 

be held to fill the succeeding terms of office. 

We agree with Mr. Huntley's first premise, but not with his 

second, and therefore, not with his conclusion. In Montana, the 

general rule for holdovers prior to enactment of the 1972 

Constitution was stated as: 

[Olne who is appointed to fill a vacancy in an 

elective office fills out the unexpired term 

only, unless by virtue of the express wording 

of the Constitution or statute he may hold 

over until his successor is elected and 

qualified. 

State ex rel. Morgan v. Knight (1926), 76 Mont. 71, 79, 245 P. 267, 

The Constitution expressly provides for the holding over of 

Supreme Court Justices and District Court Judges. Even under the 

annual legislative sessions envisioned by the 1972 Constitutional 

Convention delegates, see Art. V, Sec. 6, Mont. Const. (1972), 

holdovers would have occurred. The annual sessions began on the 

first Monday of January and ran sixty legislative days into the 

first week of March. Art. V, Sec. 6, Mont. Const.; 5 43-205, RCM 

(1947). The eight-year and six-year terms of Supreme Court and 

District Court offices expired on the day before the first Monday 

of January. Section 93-201, RCM (1947); 5 93-307, RCM (1947). 
This statutory chronology virtually guaranteed that certain 

nominees could not be confirmed by the Senate until after the terms 

had expired. With the terms expiring on the day before the 

legislative sessions began, any nomination made after the 

legislature adjourned in March to fill the final year of a term 

could not be confirmed until the legislature convened on the first 

Monday of the following January--the day after the term expired. 

The plain language of the 1972 Constitution speaks directly 

to this situation. Art. VII, Sec. 8 (1) , Mont. Const. provides that 

"a nomination made while the senate is not in session shall be 

effective as an appointment until the end of the next session.11 

By providing that such a nomination would be effective until the 

end of the next legislative session, the Convention delegates 

ensured that the Senate would have an opportunity to consider a 

nominee's confirmation even in the very foreseeable event that the 

term would expire before the legislature met. We, therefore cannot 

agree with Mr. Huntleyls position that judicial holdovers are not 

authorized. The present Constitution not only authorizes 

holdovers, it mandates them. 

Terms and Tenure 

The Secretary of State argues that a holdover in a judicial 

office violates the Constitution by lengthening the preceding term 

and shortening the succeeding term contrary to Art. VII, Sec. 7 (2), 

Mont. Const., which mandates eight-year terms for Supreme Court 

Justices and six-year terms for District Court Judges. In his 

interpretation, a holdover serves a term of greater than eight or 
six years, and the successor must be elected to a term of less than 

eight or six years. 

This Court has already rejected this type of argument because 

it confuses l1terml1 with I1tenure." I1Tenure" refers to the time an 

official actually spends in off ice, whereas lltermll refers to a 

fixed and definite period of time. The law governing judicial 

appointees states: 

An appointee confirmed by the senate serves until the 

next succeeding general election. The candidate elected 

at that election holds the office for the remainder of 

the unexpired term. 

Section 3-1-1014, MCA (Emphasis added. ) . The fact that an 

appointed officer's tenure necessarily extends beyond the end of 

a statutory term, or impinges on the following term, does not 

lengthen or shorten the term of office. State ex rel. Olsen v. 

Swanberg (1956), 130 Mont. 202, 211, 299 P.2d 446, 451. 

Public Policy 

The Secretary of State argues that since the first sentence 

of Art. VII, Sec. 8 (2), Mont. Const. is ambiguous, our 

interpretation should be controlled by the strong public policy 

favoring the election of judicial officials. He and Mr. Huntley 

cite the Constitutional Convention transcripts to support this 

policy. The rule is that when the framers1 intent cannot be 

determined from the Constitutionls plain words, recourse may be 

had to the proceedings of the Constitutional Convention. School 

Dist. No. 12 v. Hughes (1976), 170 Mont. 267, 272, 552 P.2d 328, 

331. On the other hand, this Court has warned that excerpted 
portions of these transcripts can often be used to support almost 

any position. Keller v. Smith (1976), 170 Mont. 399, 408-09, 553 

P.2d 1002, 1008. That appears to be the case here. 

A comprehensive reading of the Constitutional Convention 

transcripts indicate that the delegates supported judicial 

selection both by election and by appointment. The Judicial 

Committee presented the delegates with two radically different 

proposals. The majority proposal provided for the selection of 

justices and judges primarily through general elections prior to 

the end of each judicial term. Mid-term vacancies were to be 

filled by appointment by the governor and were effective only until 

the successor was elected and qualified. 1 Mont. Legislative 

Council and Constitutional Convention Editing and Publishing Comm., 

Montana Constitutional Convention 1971-1972, at 506, (1979) 

[hereinafter Convention]. The delegates were informed that the 

election system had one major advantage: 

Under a democratic form of government, the 

people must be given a direct voice in selecting of all important officials, including 

those of the judicial branch. Popular elections at periodic intervals prevent the judiciary from imposing political, social and 

economic policies which are contrary to the 

fundamental aims of the people. 

Mont. Constitutional Convention Cornm'n., Mont. Constitutional 

Convention Study No. 14: The Judiciary, at 137 [hereinafter The 

Judiciary]. 

The minority proposal provided for the selection of justices 

and judges through a system of appointment. The Judicial 

Nominating Committee would review the records of candidates and 
, 

present the governor with a list of the most qualified nominees. 

From this list, the governor would select a nominee to be confirmed 

or rejected by the Senate. A confirmed appointee could face a 

contested election in the first primary following Senate approval. 

Thereafter, the appointee would run in an approval-or-rejection 

contest in a general election for each succeeding term. 1 

Convention, supra, at 519. The delegates were informed that the 

appointment method of systematically screening judicial candidates 

"is more conducive to attaining a qualified, capable judiciary than 

the elective method whereby candidates are chosen more for 

political appeal than merit." The Judiciary, supra, at 141. 

The delegates voted to adopt the minority, appointment 

proposal, 4 Convention, supra, at 1034-35, and then, in a series 

of debates and amendments before the committee of the whole, 

broadened its election provisions, 4 Convention, supra, at 1084- 

1114. The delegates specifically rejected elections as the primary 

method of judicial selection, 4 Convention, supra, at 1097-99, but 

voted overwhelmingly to extend the contested election provision 

beyond the first election after Senate confirmation to all other 

elections an incumbent would face, 4 Convention, supra, at 1102- 

03. 

The result is a selection system which gives recognition to 

both appointment and election. It was explained to the delegates 

that, as amended, the minority proposal provided for the selection 

of justices and judges through both methods. 4 Convention, supra, 

at 1112. The delegates were also informed that most of the 

justices and judges who attained their positions under the 1889 

13 
Constitution had been appointed by the executive. Just prior to 

the Constitutional Convention, four of the five serving Supreme 

Court Justices, and at least twenty-one of the twenty-eight serving 

District Court Judges, had originally been appointed. The 

Judiciary, supra, at 136. The current makeup of the judiciary 

reflects the delegates1 recognition of both appointment and 

election. Eighteen of the thirty-six currently serving District 

Court Judges and three of the seven currently serving Supreme Court 

Justices began their offices as appointees. Furthermore, twentyeight states and the District of Columbia select their supreme 

court justices through some type of appointment. Another ten of 

the twenty-two states relying on partisan and nonpartisan 

elections, use appointments to fill supreme court vacancies. 

We cannot agree with the assertion that the framers1 intent 

and public policy overwhelmingly support judicial election over 

appointment, and, therefore, that elections should be imposed when 

the Constitution does not explicitly exclude them. The 

Constitutional Convention delegates extensively discussed and 

apparently fully understood the advantages of each system. 

Judicial elections fulfill a democratic societyls expectation that 

its citizens will retain some degree of control over judicial 

officials and will have a remedy available when judicial decisions 

depart from that society's political, economic, and social norms. 

The appointment system, on the other hand, is intended to ensure 

that the most qualified and capable judicial candidates reach 

office. In adopting Art. VII, Sec. 8, Mont. Const., the delegates 

recognized and adopted two valid methods of judicial selection. 
E. 

Art. VII, Sec. 8(21 Mont. Const. 

What interpretation is to be placed on the requirement of 

subsection (2) as to the election before each succeeding term of 

office? Is this provision to be limited to an appointee or does 

it also cover an elected justice or judge? 

In Keller v. Smith we held that the second sentence of 

subsection (2) required every unopposed, incumbent, Supreme Court 

Justice or District Court Judge to run on an approval or rejection 

ballot in the next general election prior to the expiration of the 

term, irrespective of whether he or she attained office through 

appointment or election. Keller, 170 Mont. at 408, 553 P. 2d at 

1008. The Court also stated in dicta that the word Itincumbentlt in 

the first sentence of subsection (2) refers only to appointees. 

Keller, 170 Mont. at 406, 553 P.2d at 1006-07. The Attorney 

General relies on that statement in support of his position that 

the first sentence of subsection (2) only mandates election for 

confirmed appointees. 

We have examined subsection (2) and subsection (3) and 

considered the use of the word nincumbentll in the five different 

places contained in those subsections. Our examination of the 

Constitutional Convention records does not indicate that the 

delegates intended different meanings for the same word in two 

succeeding sentences. If we held that the first sentence applied 

only to appointed judges when it used the term incumbent, that 

would contradict Keller I s conclusion that llincumbentll in the second 

sentence referred to both appointed and elected judges. Both 

15 
sentences are clearly meant to be read together. The first 

sentence of subsection (2) provides for contested elections when 

a candidate files against an incumbent. The second sentence 

provides for approval-or-rejection election when no candidate files 

against the incumbent. We conclude that the first sentence of 

subsection (2) refers to both appointed incumbents and elected 

incumbents, in a manner similar to the second sentence of 

subsection (2) as interpreted in Keller. However, that conclusion 

is not decisive of the issue before us. 

111. 

The language of Art. VII, Sec. 8 (I), Mont. Const. contains 

the key to the ambiguity in Art. VII, Sec. 8(2), Mont. Const. The 

holding of Jones v. Judse is controlling. In Jones the governor 

had appointed Justice Haswell to the Chief Justice position when 

the Senate was out of session and therefore had no opportunity to 

confirm the appointment before the next general election. In Jones 

this Court relied on the clear and unambiguous command of 

subsection (1) in holding that the Constitution does not require 

a nominee to stand for election until after the Senate 

confirmation. Jones (1978), 176 Mont. 251, 254-55, 577 P.2d 846, 

848. 

Jones differs from the present case only in that the present 

judicial terms will expire before the Senate would have an 

opportunity to consider confirmation in 1991. That difference is 

not significant. Justice Barz took office on September 11, 1989, 

with the first general election after confirmation scheduled for 

November of 1992, see 5 13-1-104(1), MCA, a period of thirty-eight 
months. Chief Justice Haswell took office on March 10, 1978, with 

the first general election after confirmation in November of 1980, 

see 5 23-2604, RCM (1947), a period of thirty-two months. The 

actual time served by these two appointees prior to facing election 

would be substantially the same. 

As in Jones, we must resolve the present ambiguity by 

construing the Constitution as a whole with each provision bearing 

upon the same subject matter receiving appropriate attention. 

Jones, 176 Mont. at 255-56, 577 P.2d at 849. 

We restate the relevant sentence of subsection (1) of Art. 

VII, Sec. 8, Mont. Const.: 

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. 

In Jones the petitioners argued that the above quoted portion 

of subsection (1) was ambiguous. This Court disagreed stating: 

There is nothing ambiguous 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. 

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. . . . 

Because the lansuase is unambisuous there is nothinq 

for the Court to construe. 
Jones, 176 Mont. at 254-55, 577 P.2d at 848 (Emphasis added, 

citation deleted). 

We therefore must balance our interpretation of these two 

sentences in subsections (1) and (2). Under subsection (I), we 

have the Jones holding that the nominations here in question 'Ishall 

be effective as appointments until the end of the next session of 

the Legislature." For consideration we have the ambiguous sentence 

in subsection (2) which indicates the possibility that a 1990 

election may be required. In balancing these provision, we 

conclude that, consistent with our holdings in Keller v. Smith and 

Jones v. Judse, the unambiguous provision contained in subsection 

(1) controls so that a judicial nominee need not stand for election 

until the next election after the Senatels confirmation of the 

nominee. We hold that under the facts of this case, the Secretary 

of State is not required to place Montana Supreme Court Justice 

Position Number One, Thirteenth Judicial District Department 4, and 

Eighteenth Judicial District Department 2, on the 1990 ballot. 

In reaching this holding, we have considered the language of 

subsection (1) and subsection (2) as well as the delegates1 

intention with reference to appointees and nonappointees. In 

substance we conclude that the general constitutional rule is that 

appointees and nonappointees shall stand for contested and 

uncontested elections at the general elections prior to the 

expiration of each judicial term. The exception to that general 

rule provides that when the Senate has not had an opportunity to 

confirm a nominee, the nominee must stand for election for the 

first time at the next election following Senate confirmation. 
We have been presented with extensive arguments as to the 

potential for unreasonable results and even abuses of the judicial 

selection system. We limit our decision to the facts and issues 

of the case before us. 

The hazards pointed out by the parties do suggest that it 

would be wise for the Legislature to consider amendment of the 

Constitution. The clarity of the process by which justices and 

judges are selected in Montana is of fundamental concern. The 

Legislature and the citizens of Montana have the power to amend 

the Constitution and to eliminate the ambiguities and hazards 

present at this time. 

The writ of mandamus issued by the District Court in Huntley 

v. Cooney, No. ADV-90-187, dated 

We Concur: 

r Chief Justice 

sitting for Justice Barz 

sitting for ~ustic6 McDonough 
Chief Justice J. A. Turnage, specially concurring: 

I concur in the majority opinion. 

I believe that the analysis concerning ambiguity in Art. VII, 

Sec. 8(2), Mont. Const., is correct under the existing precedents 

cited in the majority opinion; however, it would not have been 

necessary to discuss this question. 

There is no need to balance the interpretations of Art. VII, 

Sec. 8 (1) , and Art. VII, Sec. 8 (2) . The plain and unambiguous 

language of Art. VII, Sec. 8(1), I1relach 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 sessiont1 requires no interpretation or balancing. 

(Emphasis supplied.) 

This Court applies the rules of statutory construction when 

interpreting the Constitution. Under those rules, the intent of 

the framers is controlling and that intent must first be determined 

from the plain language of the words used. Butte-Silver Bow Local 

Govern. v. State (Mont. 1989), 768 P.2d 327, 330, 46 St-Rep. 87, 

90. 

The emphasized language of Art. VII, Sec. 8(1), is plain and 

unambiguous. The words are clear and need no interpretation.