### 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. AttorneyGeneral,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, 1990Justice 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 thisyear. The District Courtheld thatArt. VII, Sec. 7 and Sec. 8,Mont. Const., requirethenominees currently filling the positions to stand for election at the general election preceding theexpiration of theterm towhichnominated even though the Senate had not yet been in session and therefore had not confirmed thenominations. We accept jurisdiction, issuethewrit 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. DoArt. VII, Sec. 7 and Sec. 8,Mont. Const., require the Secretary of State toplace Montana Supreme Court Justice Position Number One, Thirteenth Judicial District Department Four, and EighteenthJudicialDistrict DepartmentTwoon the 1990ballot when the Governor filled thepositionsby nominations and theSenatehadnot 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 forhis successor on June 5, 1990, see 5 13-1-107,MCA, and a filing deadline ofMarch 22, 1990,

see § 13-10-201(6), MCA. Governor Stephens nominated District Court Judge Diane Barz to fill thevacant 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, ithas 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 NumberOne. TheSecretary of StaterejectedMr. Huntleyls declaration stating he was bound by 42 Att1yGen. 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. Huntleylsdeclaration or to show cause why it had not been filed by thehearing date ofMarch 20, 1990. TheAttorney General

was granted permission to intervene. At the show cause hearing, the District Court orally granted Mr. Huntleylspetition andordered 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 controlasking that theDistrictCourt'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 filingdates,we reserved our written opinion until a laterdate. I. ShouldtheMontana Supreme Court accept jurisdictionand 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 jurisdictionunder 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 thewrit to further judicial economy and toprevent procedural entanglements. Inmany cases we have issued the writ toprevent an injustice to thepetitioner which would arise if theI. I petitioner were forcedtoawaitappeal. Often the particular facts of the case required immediate review toprevent a gross injustice

ortopreventdeprivationthepetitioner's fundamentalrightswhile 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 jurisdictionand issue the writ of supervisory control. 11. Do Art. VII, Sec. 7 and Sec. 8, Mont. Const.

### , require the Secretary of State toplace Montana Supreme Court Justice Position Number One, Thirteenth Judicial District Department Four, and Eighteenth JudicialDistrict DepartmentTwo on the 1990ballot when theGovernor filled thepositionsby nominationsand the Senatehad

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) Thegovernor shallnominatea replacement from nominees selected in themanner provided by law for any vacancy in the office of supreme court justiceordistrict court judge. If the governor fails to nominate within thirty days after receipt of nominees, the chief justice or acting chief justice shall make thenomination. Each nomination shall be confirmedby the senate,but a nominationmade 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, thename 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 isrejected,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, Ifandat the election before each succeeding term of officeI1Iis a subordinate clause referring to the phrase Ifatthe first electionafter senate~onfirmation.~~ Because thenominations have not been presented to the Senate,and thereforehave 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.~ Hepoints out that it is set off by commas, and,therefore, is independent of the second clause, requiringmidterm appointees confirmedby the Senate to run at the next general election for the unexpired term. The second situation is covered by the clause Ifatthe 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 shouldbe read as "or. Theclause, Iftheelectionbefore each succeeding term of officeInn refers to the eight-year and six-year terms of office set out inArt. VII, Sec. 7(2), Mont. Const. Therefore,he reasons,a judicial office is up forelection 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 thepresent case, theunconfirmed nomineesmust stand for election in 1990. Thebasic conflict inthepartiestinterpretationsarises from the phrase tnsucceeding term of office.I1 Does it refer to terms which aretobe succeeding terms afterthe firstelection 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 respectivepositions. We will consider each of these in turn. B. Holdovers 8Mr. 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 specificallyauthorizedby a statuteor 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: [Olnewho is appointed to fill avacancy 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. Morganv. Knight (1926),76Mont. 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 firstMonday 

### of January. Section 93-201,RCM (1947); 

### 5 93-307,RCM (1947).This statutory chronology virtually guaranteed that certain nominees could notbe confirmedby the Senateuntil 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 legislatureconvened 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 confirmationeven in thevery foreseeable event that the term would expirebefore the legislaturemet. 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 Constitutionby lengthening thepreceding term and shorteningthe succeeding term contrary toArt. 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 orsix years, and the successormust be elected to a term of less than eight or six years. This Court has already rejected this type of argumentbecause it confuses l1terml1 with I1tenure." I1Tenure"refers to the time an official actually spends in office, 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 succeedinggeneral election. The candidateelected 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), 130Mont. 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 Constitutionlsplain 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 excerptedportions of these transcripts can often be used to support almost any position. Keller v. Smith (1976), 170Mont. 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 filledby appointmentby thegovernorandwere effective only until the successor was elected and qualified. 1 Mont. Legislative CouncilandConstitutionalConvention Editing and Publishing Comm., Montana Constitutional Convention 1971-1972, at 506, (1979)

[hereinafter Convention]. The delegates were informed that the election systemhad 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]. Theminority 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,thegovernorwould select anominee tobe 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 appointmentmethod of systematically screening judicial candidates "ismore conducivetoattaininga qualified, capable judiciarythan the elective method whereby candidates are chosen more for political appeal thanmerit." 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. Thedelegatesspecifically rejected electionsastheprimary method of judicial selection, 4Convention, 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 appointmentand election. Itwas explained to thedelegates that, as amended, theminority proposal provided forthe selection of justices and judgesthroughboth 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 13Constitution had been appointed by the executive. Just prior to the Constitutional Convention, four of the five serving Supreme CourtJustices,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 CourtJudgesand threeof the seven currently servingSupremeCourt 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 fulfillademocratic societylsexpectation that its citizens will retain some degree of control over judicial officials and will have a remedy availablewhen 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 adoptingArt. 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 thenext 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 indicta that theword 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. Ifwe held that the first sentence applied only to appointed judges when it used the term incumbent, that would contradict KellerIs conclusionthat llincumbentll inthesecond sentence referred to both appointed and elected judges. Both 15sentences 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 electionwhenno candidatefiles 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 inArt. 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 Senatewas out of session and therefore had no opportunity to confirmtheappointment before thenext general election. InJones 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 thepresent 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, aperiod of thirty-eightmonths. ChiefJusticeHaswell took office onMarch 10, 1978,with the firstgeneral election after confirmation inNovember of 1980,

see 5 23-2604, RCM (1947), a period of thirty-two months. The actual time servedby these twoappointeesprior to facingelection would be substantially the same. As in Jones, we must resolve the present ambiguity by construing the Constitution as a wholewith eachprovisionbearing 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 thenext session. InJones thepetitioners 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. 

# . . . Becausethe lansuase isunambisuous there isnothinq 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 Jonesholding thatthenominationshere in question 'Ishall be effective as appointmentsuntil the end of the next session of theLegislature." Forconsiderationwehave theambiguous sentence in subsection (2) which indicates the possibility that a 1990 election may be required. In balancing these provision, we conclude that, consistent with ourholdings inKellerv. Smith and Jonesv. Judse, the unambiguousprovision contained in subsection

(1)controls so thata judicial nominee neednot stand forelection until the next election after the Senatelsconfirmation of the nominee. We hold thatunder the factsof this case, the Secretary of State is not required to place Montana Supreme Court Justice Position Number One, Thirteenth JudicialDistrictDepartment 4,and Eighteenth Judicial District Department 2, on the 1990ballot. 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 substancewe conclude that thegeneral 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 forunreasonable resultsand 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 McDonoughChief Justice J. A. Turnage, specially concurring: I concur in themajority opinion. I believe that the analysisconcerning ambiguity inArt. 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), I1relachnomination shall be confirmed by the senate,but a nominationmade while the senate is not in session shall be effective as an appointment until the end of the next sessiont1requires no interpretation or balancing.

(Emphasissupplied.) This Court applies the rules of statutory construction when interpreting the Constitution. Under those rules, the intent of the framers iscontrolling and that intent must firstbe determined from theplain languageof thewords 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), isplain and unambiguous. The words are clear and need no interpretation.