State Ex Rel. Racicot v. Dist. Cour ( 1990 )

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,
-vs-
THE 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 ~ u d g e ,
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
Submitted: March 29, 1990
Filed:
I
Clerk
1
. .
I
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, intervenor-
respondent." 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 ~ i a n eG. 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, ~ i k e
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
~ i a n e Barz for the same Supreme Court seat.
G. 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
subject . 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 Itatthe 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 only refer
can
to the phrase "after senate ~onfirmation,`` that construction
but
is grammatically strained. The word nsucceedingft the present
is
participle and verbal noun of the verb Ifsucceednand hence is an
adjective in this case. Websterl International ~ictionary,(2d
s
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
and
first election after senate confirmati~n`` (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
llsucceedingterm of office. 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, ~usticeSheehy 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 officevtand 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 office. l1 This requirement reinforces
the argument that a judicial officer holds office for a set term
of years and is not granted additional lltenurell which his
to
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 office 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. lvIfwis 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 "termv1now held by Justice Barz expires on midnight
preceding January 7, 1991. The Igsucceedingtermtg
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 confirmationt1if 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 the
in
State Constitution means something else besides lfelection.tfHe
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 used with the evident purpose of limiting
is
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`` general election following.
the
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 office 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.