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
Submitted: March 29, 1990
Decided: May 17, 1990
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
The Montana Attorney General petitioned for a writ of super-
visory 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 super-
visory 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 case-
by-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 of-
fice, the name of the incumbent shall never-
theless be placed on the general election
ballot to allow voters of the state or dis-
trict to approve or reject him. If an incum-
bent is rejected, another selection and nomin-
ation 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
officeI1Iis 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.~ points out that it is set off by commas,
He
and, therefore, is independent of the second clause, requiring mid-
term 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 "andv1connecting the two
clauses is a coordinating conjunction, not a subordinating
conjunction, and should be read as "or. The clause, Iftheelection
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 tnsucceedingterm 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 six-
year 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 ~istrictCourt 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. Huntleylsposition 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 l1terml1with 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 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 selec-
ting of all important officials, including
those of the judicial branch. Popular elec-
tions at periodic intervals prevent the judi-
ciary 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, twenty-
eight 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 societylsexpectation 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, 5 5 3 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, 5 5 3 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 the five different
in
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 the second
in
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 ~ustic6McDonough
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 sessiont1requires 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.