Emery v. State

No 1 4 2 7 6

I N THE SUPREME COURT OF THE STATE O F MONTANA

1 97 8

JOHN E . EMERY,
Petitioner,
-vs-
STATE O F MONTANA e t a l . , ATTORNEY GENERAL MIKE GREELY,
Respondent.

O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

For P e t i t i o n e r :

John E. E m e r y , P r o S e , D e e r L o d g e , M o n t a n a

For R e s p o n d e n t :

Mike Greely, A t t o r n e y General, Helena, Montana

T h i s cause w a s s u b m i t t e d on b r i e f s .

Submitted: May 25, 1978

Decided: jun 1 1948

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

John E. Emery filed in this Court on April 27, 1978, his
written petition, pro se, praying for a writ of mandate out of
this Court to the respondent State of Montana and all other per-
sons having authority to act, or for any other kind of relief,
that would protect the claimed voting rights of petitioner to
vote personally or by absentee ballot in the upcoming primary
and general elections to be held in the State of Montana. .

Those elections pertain to the election of federal and
state officers as well as local county officers.
Petitioner alleges he is an American citizen, 27 years
of age, and sound physically and mentally. He alleges that he
is not now registered to vote; that he wishes to be registered
and to exercise his voting rights; but, that he has been denied
such registration by Bonnie Miller, County Clerk and Recorder of
Powell County, Montana, and ex officio County Registrar of that
county. His petition further reflects that the denial of regis-
tration by the County Registrar is the result of opinions given
by James Masar, County Attorney of Powell County, and by Mike
Greely, Attorney General of the State of Montana.
The salient allegation of his petition is that John E.
Emery is a convicted felon, serving a prison sentence in the

Montana State Prison at Deer Lodge, in Powell County, arising
out of a judgment of conviction and sentence of imprisonment im-
posed by the District Court, Thirteenth ~udicialDistrict, in
Yellowstone County, Montana.
The petition does not set forth the county of his resi-
dence, if in Montana, prior to Emery's incarceration, nor specify
the crime for which he is imprisoned, except to state he was con-

victed of a felony.
 Insofar as they impede or restrict his voting rights,
Emery attacks the constitutionality of Article IV, Section 2,
1972 Montana Constitution, and of sections 23-2701 and 23-3022,
R.C.M. 1947, set out more fully below, on the ground that these
state constitutional and statutory provisions deny him equal
protection of the law under the Fourteenth Amendment to the
United States Constitution.
Emery also contends he has not been disenfranchised, in
spite of his incarceration, because the sentencing judge in the
District Court didnottin sentencing, follow the provisions of
section 95-2227, R.C.M. 1947, which, again, we will explain more
fully below.
On receipt of the petition on April 28, 1978, this Court
directed the Attorney General to respond to the petition and
serve the same within 20 days, and provided for notice to be
given to the Attorney General, the Powell County attorney, and
the Powell County clerk and recorder, and further ordered an
abeyance until the response was served and filed.
The Attorney General filed herein his written response
to the petition on May 17, 1978, and his brief after an extension
granted on May 23, 1978, each instrument certifying service by
mail on the petitioner. On May 25, 1978, we ordered the matter
submitted and taken under advisement. We now decide the petition
on its merits, deny the petition for writ of mandamus or other
relief against any respondent, named or unnamed, and dismiss the
application for the reasons following.
The 1972 Kontana constitutional provision against which
Emery's objection is raised, Article IV, Section 2, provides in
full:
"Qualified elector. Any citizen of the United
States 18 years of age or older who meets the
registration and residence requirements provided
by law is a qualified elector unless he is serving
a sentence for a felony in a penal institution or
is of unsound mind, as determined by a court."
 The statutory qualifications of a voter in Montana are
provided in section 23-2701, R.C.M. 1947:
"Qualifications of voter. (1) No person may
be entitled to vote at elections unless he has
the following qualifications:
"(a) He must be registered as required by law;
" (b) He must be eighteen (18) years of age or
older;
" (c) He must be a resident of the state of
Montana and of the county in which he offers
to vote for at least thirty (30) days;
"(d) He must be a citizen of the United States.
"(2) No person convicted of a felony has the
right to vote while he is serving a sentence
in a penal institution.
"(3) No person adjudicated to be of unsound
mind has the right to vote unless he has been
restored to capacity as provided by law."
(Emphasis supplied.)
The pertinent portion of section 23-3022, R.C.M. 1947, to
which Emery objects, states:
"Residence, rules for determining. For registra-
tion or voting, the residence of any person shall
be determined by the following rules as far as
they are applicable.

"(2) A person may not gain or lose a residence
while kept involuntarily at any public institu-
tion not necessarily at public expense, while
confined in any public prison * * *."
Attached to Emery's petition is a memorandum of authorities,
in which he cites two decisions in support, namely Evers IJ. Davoren,
(Massachusetts Supreme Judicial Court Docket No. J74-118 CI), an
unreported decision for the Massachusetts Supreme Court dated
October 19, 1974, and O'Brien v. Skinner, (1974), 414 U.S. 524,

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

Journal on Prison Law 251 (1976). Massachusetts has a constitu-
tional provision that every citizen 18 years of age and upwards,
"excepting persons under guardianship and persons temporarily or
permanently disqualified by law because of corrupt practices in
respect to elections" shall have a right to vote. (Massachusetts
Constitution, Article 111.) Evers brought suit against the Massa-
chusetts Secretary of State, Davoren, as election officer, to
obtain a determination that inmates of a Massachusetts correctional
institution are entitled to vote by use of an absentee ballot. The
parties stipulated that these inmates in Massachusetts retain the
right to vote, but that their right could only be exercised in
the event of a furlough. By a 1925 statute, such inmates were
denied the right to an absentee ballot. The court in Evers held
the 1925 act unconstitutional, saying the legislature could not
distinguish among classes of persons who are absent or unable to
vote because of physical disability, and that all voters in each
category--"absentw or "physically disabledn--must be given equal
access to absentee ballots.
It is obvious that Evers gives no support to Emery's
petition. The Massachusetts Constitution does not exclude per-
sons from voting during incarceration in a penal institution.
Montana, as we have shown, does exclude such persons.
Similarly, O'Brien v. Skinner, supra, does not aid Emery's
petition. That case covers 72 New York persons who were, at the
time of the action, in confinement awaiting trial or pursuant
to misdemeanor convictions. No one was subject to any voting
disability, as the United States Supreme Court noted:
"It is important to note at the outset that the
New York election laws here in question do not
raise any question of disenfranchisement of a
person because of conviction for criminal con-
duct. As we noted earlier, these appellants
are not disabled from voting except by reason
of not being able physically--in the very literal
sense--to go to the polls on election day or to
 make the appropriate registration in advance
by mail. The New York statutes are silent
concerning registration or voting facilities
in jails and penal institutions, except as they
provide for absentee balloting. If a New York
resident eligible to vote is confined in a
county jail in a county in which he does not
reside, paradoxically, he may secure an absentee
ballot and vote and he may also register by
mail, presumably because he is 'unavoidably
absent from the county of his residence.' 1.:
JY:
.
Election Law S117 (1)(b) (1964)
"Thus, under the New York statutes, two citi-
zens awaiting trial--or even awaiting a deci-
sion whether they are to be charged--sitting
side by side in the same cell, may receive
different treatment as to voting rights. As
we have noted, if the citizen is confined in
the county of his legal residence he cannot
vote by absentee ballot as can his cellmate
whose residence is in the adjoining county.
Although neither is under any legal bar to
voting, one of them can vote by absentee bal-
lot and the other cannot." O'Brien, 414 U.S.
at 528-529.
The United States Supreme Court held that New York's re-
fusal to allow incarcerated persons awaiting trial or convicted
of misdemeanors to vote by absentee ballot or otherwise violated
the equal protection clause of the United States Constitution,
saying:
"New York's election statutes, as construed by
its highest court, discriminate between cate-
gories of qualified voters in a way that, as
applied to pretrial detainees and misdemeanants,
is wholly arbitrary. * * * The New York statutes,
as construed, operate as a restriction which is
'so severe as itself to constitute an unco.nsti-
tutionally onerous burden on the * * *. exercise
of the franchise.' Rosario v. Rockefeller, 410
U.S. 752, 760 (1973). Appellants and.others
similarly situated are, as we have noted, under
no legal disability impeding their legal right
to register or to vote; they are sinply not al-
lowed to use the absentee ballot and are denied
any alternative means of casting their vote
although they are legally qualified to vote."
O'Brien, 414 U.S. at 530.
Again, it is apparent that the voters in O'Brien were
entitled to vote under the laws of their state. This essential

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

was a case of impermissible discrimination among members of the
same class--some persons, incarcerated outside their county of
residence, could vote by absentee ballot, while those prisoners
in jail in their home counties were denied that privilege.
While Evers and O'Brien are not what Emery hoped they
were--that is, dispositive of his petition in his favor--we
cannot rest our examination of the problem posed by Emery's peti-
tion on our finding that these cases are not applicable. Emery's
petition poses a deeper question, not touched by either Evers
or O'Brien: Is it constitutional, under the equal protection
clause of the United States Constitution, for the 1972 Montana
Constitution to deny voting rights to incarcerated felons, as
Article IV, Section 2, of our Constitution now provides: If not,
then not only Article IV, Section 2 must fall, but also the
statutes implementing that clause, including section 23-2701,
R.C.M. 1947, which determines the qualifications of eligible
voters in Montana. Indeed, if Article IV, Section 2 offends the
United States Constitution, it also is invidious to Article 11,
Section 4, 1972 Montana Constitution, which also provides "no
person shall be denied the equal protection of the laws". The
similar provisions of the equal protection clause of the United
States Constitution and the equal protection clause of the 1972
Montana Constitution provide generally equivalent but independent
protection in their respective jurisdictions. See, Department
of Mental Hygiene v. Kirchner, (1965), 62 Cal.2d 586, 43 Cal.Rptr.
329, 400 P.2d 321.
By way of dictum, the United States Supreme Court has
said that states can, within limits, specify the qualifications
of voters in both state and federal elections, pointing out that
the United States Constitution, Article I, Section 2, includes a
provision that makes voter qualifications rest on state laws.
Gray v. Sanders, (1963), 372 U.S. 368, 83 S.Ct. 801, 9 L ~d 2d 821.
Minors, felons and other classes may be excluded. 372 u.S. at 380.
 In ~assiterv. Northampton Election Board, (1959), 360
U.S. 45, 51, 79 S.Ct. 985, 3 L Ed 2d 1072, the Supreme Court
said "* * * there is a wide scope for the exercise of its [the
state's] jurisdiction", and again in dictum said that "Residence
requirements, age, previous criminal record * * * are obvious
examples indicating factors which a State may take into considera-
tion in determining the qualifications of voters." See also,
Davis v. Beason, (1890), 133 U.S. 333, 348, 10 S.Ct. 299, 33
L.ed. 637, and Murphy v. Ramsey, (1885), 114 U.S. 15, 5 S.Ct. 747,
29 L.ed. 47.
But the more recent case of Richardson v. Ramirez, (1974),
418 U.S. 24, 94 S.Ct. 2655, 41 L Ed 2d 551, settles the power of
states to exclude felons from its voting lists. California has
state constitutional provisions which require that persons con-
victed of felonies be excluded from voting by law (Article XX,
Section 11, California Constitution), and that no person convicted
of an infamous crime shall ever exercise the privilege of an elec-
tor (former Article 11, Section 1). California implemented its
constitutional provisions with statutes that prevent a felon from
voting, even after release from incarceration, such disability to
continue until relieved by court order after probation was served

(California Penal Code (Supp. 1974), section 1203.4), or executive
pardon following imprisonment (California Penal Code (1970), sec-
tion 4852.01). Thus, California's exclusionary rules regarding
voting by felons are harsher than Montana's, which apply only
during imprisonment. The United States Supreme Court, albeit
by a divided court, upheld the California constitutional and
statutory provisions when tested against the language of the equal
protection clause of Section 1 of the Fourteenth Amendment. he
Court looked to Section 2 of the Fourteenth ~mendment,and because

that section permitted states to deny voting rights for "partici-
pation in rebellion or other crime", it found that Section 1 was
not intended to prohibit disenfranchisement where Section 2 sanc-
tioned it. 418 U.S. at 41-55. If the "more modern view" is to
rehabilitate the ex-felon by extending voting privileges, that was
up to the people of California, and not the Supreme Court. 418
U.S. at 55. We find, therefore, the provisions of Montana's Con-
stitution excluding incarcerated felons from sufferage are consti-
tutionally permissible under the equal protection clause, both in
the federal and state constitutional versions. Further, section
23-2701, R.C.M. 1947, defining the qualifications of electors also
passes constitutional muster.
Likewise, Emery's attack against section 23-3022, R.C.M.
1947, is without basis. Residency requirements for voting are a
proper constitutional function of state law. See, Lassiter v.
Northampton Election Board, supra. Moreover, section 23-3022 pro-
tects both prisoners and the state. Thus, a felon convicted and
imprisoned in Montana who is not a resident of our state at the
time of conviction does not gain residency for vcting purposes
during his jail term. A Montana resident will not lose his voting
residence because of incarceration, where his county of residence
is outside the county of the penal institution. Counties where
penal institutions are located will not have the impact of voting
residencies otherwise acquired by incarceration. There are salutary
reasons for the provisions of section 23-3022, one of which is that
the residency of a felon for voting purposes is not affected when
he returns to his county of residence after release. There is
nothing about the operation of section 23-3022 which is an onerous
restriction on Emery's right to vote. Rosario v. Rockefeller,
(1973), 410 U.S. 752, 93 S.Ct. 1245, 3 6 L Ed 23 1.
The final contention to be dealt with, arising out of this

petition, is the argument that Emery is entitled to vote because
the sentencing judge did not in Emery's sentence foilow the pro-
visions of section 95-2227. The pertinent part of that statute
is:
"Effect of conviction. (1) Conviction of any
offense shall not deprive the offender of any
civil or constitutional rights except as they
shall be specifically enu~neratedby the sen-
tencing judge as necessary conditions of the
sentence directed toward the objectives of
rehabilitation and the protection of society.
"(2) No person shall suffer any civil or con-
stitutional disability not specifically included
by the sentencing judge in his order of sentence."
We need not belabor this question very long. The constitu-
tional provisions of Article IV, Section 2 respecting incarcerated
felons are mandatory and prohibitory. See, State v. Toomey, (195;),
135 Mont. 35, 335 P.2d 1051. They are also self-executing, and
a statutory enactment neither adds to nor detracts from their fo~ae.
Colwell v. City of Great Falls, (1945), 117 Mont. 126, 157 P.2d
1013. The constitutional restrictions on Emery's sufferage rights
while he is in prison are effective regardless of whether the
court added or omitted such restrictions in the sentence given
Emery. Neither the court nor the legislature can alter the con-
stitutional restrictions thus imposed. No11 and Kenneady v. City
of Bozeman, (1975), 166 Mont. 504, 534 P.2d 880.
Petitioner's application for a writ or other relief is
dismissed in all respects. .A- -..
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