Marbut v. Secretary of State , 231 Mont. 131 ( 1988 )

No. 88-83
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
GARY S. MARBUT,
SECRETARY OF STATE, JIM WALTERMIRE,
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relator:
Gary S. Marbut, pro se, Missoula, Montana
For Respondent:
Gregory L. Curtis, Legal Counsel, Secretary of State's
Office, Helena, Montana
Luxan & Murfitt; Walter S. Murfitt, Helena, Montana
Hon. Mike Greely, Attorney General, Helena, Montana
Joe Roberts, Asst. Atty. General, Helena
Petitioners in Intervention:
James Goetz, Bozeman, Montana
Submitted: March 10, 1988
Decided: March 11, 1988
Clerk
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 88-083
GARY S. MARBUT, 1
Plaintiff/Relator, 1
1
v. 1 OPINION AND
1 ORDER OF
SECRETARY OF STATE, 1 DISMISSAL
JIM WALTERMIRE, 1
Defendant/Respondent. 1
On February 18, 1988, Gary S. Marbut, as relator filed
in this Court his application to commence an original
proceeding for declaratory judgment, writ of mandate, and
other appropriate relief.
Before accepting jurisdiction, we issued an Order dated
February 22, 1988, directing the Relator to serve a copy of
his application and proposed complaint upon the Attorney
General, and requiring the Attorney General to file in this
Court a response to Relator's application and proposed
complaint, including particularly whether the proposed
complaint "presents a justiciable controversy for this Court
to determine."
In our order of February 22, 1988, we stated the problem
presented by the Relator's application and proposed
complaint:
On examination, the application and complaint
appear to be in the nature of a "friendly suit."
The application recites in paragraph 4 that the
Secretary of State has advised local election
officials that the ballot for the upcoming primary
election to be held June 7, 1988 will include
initiatives CI-27 and CI-30. In his proposed
complaint and petition for declaratory judgment Mr.
Marbut prays in paragraph 3 of the prayer that we
issue an alternative writ of mandate requiring the
Secretary of State to commence the administrative
process for inclusion of CI-27 and CI-30 in the
next regular statewide election. The proposed
complaint seeks the same relief it is alleged the
Secretary of State is about to grant.
The Attorney General filed his written response in this
Court on March 7, 1988. In it, he pointed out as basic the
requirement that parties to the litigation be adverse,
relying on Moore v. Charlotte-Mecklenburg Board of Education
(1971), 402 U.S. 47, 47-48, 91 S. Ct. 1292, 1293, 28 L. Ed. 2d
590, 591. He also pointed out that Montana cases support the
requirement of adversarial parties in litigation, Chovanak v.
Matthews (1948), 120 Mont. 520, 188 P.2d 582; Stewart v.
Board of County Commissioners (1977), 175 Mont. 197, 573 p.2d
184. The Attorney General further stated that declaratory
judgment actions still require justiciability, citing
Chovanak, supra. The Attorney General concluded that
justiciability is not an idle requirement, that the presence
of adverse parties assures the Court that it will have the
benefit of full debate on the issues, and that the
requirement was of special importance for public issues of
statewide impact, such as are raised by CI-27 and CI-30.
On March 7, 1988, the several parties known collectively
as "Montanans for the Preservation of Citizens' Rights" (see
State of Montana ex rel. Montana Citizens for Preservation of
Citizens' Rights v. Waltermire (1987), 738 P.2d 1255, 44
St.Rep. 929A) filed a petition to intervene here for the
limited purpose of seeking dismissal of the action brought by
Relator together with Intervenor's proposed motion to
dismiss, answer and response to the Relator's complaint, and
memorandum in support.
On March 8, 1988, the Relator, Mr. Marbut, filed his
brief in response to the application to intervene. In his
response, Mr. Marbut contends the proposed Intervenors have
proceeded prematurely because the Court has not yet accepted
jurisdiction; that Mr. Marbut would not move to join the
Intervenors as an interested party in the action because he
would not want to impose attorney fees on Intervenors; that
if intervention were granted, no costs should be recoverable
from Mr. Marbut in case of a decision adverse to him; and
that in answer to the Intervenors, he cannot rely on the
"good intentions" of Secretary of State Waltermire to place
the initiatives on the ballot and therefore must have a writ
of mandate from this Court directed to the Secretary of
State.
Counsel for the Secretary of State (counsel has now been
deputized by the Attorney General to appear for the Secretary
of State) also filed a response on March 7, 1988. Counsel
contends for the Secretary that there are genuine existing
rights and interests involved, that a controversy exists upon
which the Court may effectively operate, and that the
judicial determination will have the effect of a final
judgment of law; that a question of law exists as to whether
the provisions of 13-35-107, MCA, offend the State
Constitution, Art. XIV, 9; and that the declaratory
judgment sought by relator limits his request to guidance in
this particular circumstance.
It is clear that no justiciable controvery is presented
by the application for a writ of mandate. In paragraph 9 of
the Secretary's answer and response to Mr. Marbut's petition,
the Secretary states that by letter dated February 5, 1988,
he advised the election officials in each county in the State
of Montana that he intended to submit the constitutional
initiatives, CI-27 and CI-30, to the qualified electors at
the next regular statewide election to be held on June 7,
1988 for acceptance or rejection. The response of the
Attorney General here includes an excerpt from the --
Great
Falls Tribune, Great Falls, Montana, dated February 5, 1988,
which carries an Associated Press story that the Secretary of
State had ordered a new election for the two ballot measures.
An applicant for a writ of mandate must establish a clear
legal right to the writ - a violation of duty by the person
and
or persons sought to be coerced. Renson v. School District
No. 1 of Silver Bow County (1959), 136 Mont. 77, 344 P.2d
117. The Secretary here is performing the duty for which Mr.
Marbut contends. Moreover, a writ of mandate will not lie to
correct or undo an action already taken. State ex rel.
Thompson v. Babcock (1966), 147 Mont. 46, 409 P.2d 808;
Melton v. Oleson (1974), 165 Mont. 424, 530 P.2d 466.
In like matter, there is here no justiciable controversy
for a declaratory judgment. In Muskrat v. United States
(1911), 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246, the United
States Supreme Court had before it a case in which Congress
had passed legislation, and had instructed in the legislation
that actions be brought before the Court of Claims and before
the United States Supreme Court to determine the validity of
the legislation. The Supreme Court found no actual
controversy before it saying:
This attempt to obtain a judicial declaration of
the validity of the act of Congress is not
presented in a "case" or "controversy" to which,
under the Constitution of the United States, the
judicial power alone extends. It is true the
United States is made a defendant in this action,
but it has no interest adverse to the claimants.
The object is not to assert a property right as
against the government, or to demand compensation
for alleged wrongs because of action upon its part.
The whole purpose of the law is to determine the
constitutional validity of this class of
legislation in a suit not arising between parties
concerning a property right necessarily involved in
the decision in question, but in a proceeding
against the government in its sovereign capacity,
and concerning which the only judgment required is
to settle the doubtful character of the legislation
in question. Such judgment will not conclude
private parties, when actual litigation brings to
the court the question of the constitutionality of
such legislation . . .
219 U.S. at 361-362, 31 S.Ct. at 255-256, 55 L.Ed. at 252.
In Montana, the requirement of justiciable controversy
likewise applies to declaratory judgment actions:
It has been held and we approve of the followina
statement of the principles applicable under the
Uniform Declaratory Judgment Act:
"The courts have no jurisdiction to determine
matters purely speculative, enter anticipatory
judgments, declare social status, deal with
theoretical problems, give advisory opinions,
answer moot questions, adjudicate academic matters,
provide for contingencies which may hereafter
arise, or give abstract opinions. (Citing cases. )
The Uniform Declaratory Judgment Act does not
license litigants to fish in judicial ponds for
legal advice." (Citing cases.)
Montana Department of Natural Resources v. Intake Water
Company (1976), 171 Mont. 416, 440, 558 P.2d 1110, 1123; See
Chovanak v. Matthews (1948), 120 Mont. at 525, 188 P.2d at
584.
The Relator contends that this Court has relaxed the
requirement of adverse parties in such cases as Grossman v.
State of Montana (Mont. 1984), 682 P.2d 1319, 41 St.Rep. 804
and 42nd Legislative Assembly v. Lennon (1971), 156 Mont.
416, 481 P.2d 330. In Grossman, however, we maintained that
the issues had to be "vigorously contended" and fully
explored. In Lennon, although the legislature directed the
filing of the declaratory judgment through the Attorney
General and the Secretary of State, the respondent, the Clerk
and Recorder of Cascade County, Montana, vigorously contended
both in oral argument and in brief, opposite positions to the
Attorney General and the Secretary of State on the legal
questions presented. There were no factual disputes.
While many cases support the rights of taxpayers,
citizens or electors to have standing to bring actions
against public officials for legal determinations of their
respective rights, we have found no case granting standing to
a complainant or applicant who shows no injury or threatened
injury to himself through the act of a public official.
We hold, therefore, because of a lack of justiciable
controversy, this Court has no jurisdiction of the relator's
application and proposed complaint.
The Secretary has now filed a motion that we grant
Intervenor's petition for intervention and that we denominate
Intervenor as a party defendant and real party in interest..
The motion is not well taken. Its effect would make the
Intervenor the respondent as against Mr. Marbut and expose
Mr. Marbut to costs in the event of a decision adverse to
him. The cause would then be reduced to an argument between
Mr. Marbut and the Intervenor as to the validity of the
Secretary's actions. The business of courts is to decide
cases, not arguments. 6A Moore's Federal Practice, p. 57-160
( 1 9 8 4 ) , Declaratory Judgments, 5 57.15.
The lack of controversy is not cured by the appearance
of the Intervenor. The Intervenor's appearance is for the
limited purpose of securing a dismissal, and it is
inconceivable that where the court has no jurisdiction of the
principal cause, the appearance of an intervenor creates
jurisdiction. Moreover, Mr. Marbut's response to the
petition for intervention precludes granting the petition for
intervention.
We hold that these proceedings must be dismissed and the
application for intervention denied. We express no opinion
whatsoever in this cause as to the validity of the actions
undertaken by the Secretary of State respecting CI-27 and
CI-30, nor as to whether the "next regular state-wide
election" (Art. XIV, § 9(2), 1972 Montana Constitution) is a
primary or general election.
IT IS THEREFORE ORDERED:
1. The application for intervention herein is DENIED.
2. Relator's application for an original proceeding
herein is DISMISSED.
3. Copies hereof to Relator and all counsel of record.
DATED this /.@ day
I
Mr. Justice Fred J. Weber dissents as follows:
We are concerned here with the extent of the initiative
rights of the citizens of Montana. In the 1972 Constitution,
the people of Montana reserved all political power to them-
selves. Mont. Const. art. 11, 5 1 states:
All political power is vested in and derived from
the people. All government of right originates
with the people, is founded upon their will only,
and is instituted solely for the good of the whole.
By the same Constitution, the people of Montana reserved the
right to amend the Constitution. Mont. Const. art. 11, S 2
states:
The people have the exclusive right of governing
themselves . . . They may alter or abolish the
constitution and form of government whenever they
deem it necessary.
By a provision newly inserted in the 1972 Constitution, the
people reserved the right to propose constitutional amend-
ments by initiative, stating in Mont. Const. art. XIV, 5 9 :
(1) The people may also propose constitution-
al amendments by initiative. Petitions including
the full text of the proposed amendment shall be
signed by at least ten percent of the qualified
electors of the state. . ..
(2) The petitions shall be filed with the
secretary of state. If the petitions are found to
have been signed by the required number of elec-
tors, the secretary of state shall cause the amend-
ment to be published as provided by law twice each
month for two months previous to the next regular
state-wide election.
(3) At that election, the proposed amendment
shall be submitted to the qualified electors for
approval or rejection. . . . (Emphasis supplied.)
These provisions emphasize the right of the people of
Montana to amend the Constitution by initiative without going
through any of the three branches of government. Our primary
issue here is the extent of that right of initiative. Both
CI-27 and CI-30 were certified by the Secretary of State to
have the required number of signatures entitling the initia-
tive to consideration at the "next regular state-wide elec-
tion". A basic question is whether the people of Montana
have a right to vote on these initiatives where the original
votes have been found to be invalid because of the type of
notice given by the office of the Secretary of State.
The majority opinion describes the application and
proposed complaint filed by the plaintiff. It also describes
the Secretary of State's response to which was attached a
proposed answer on his part. Next the opinion describes the
Attorney General's written response in which he concluded
that justiciability is required in a declaratory judgment
action and is not present in the current proceeding.
Reference is then made to the petition to intervene for
the limited purpose of seeking dismissal of the action. The
majority opinion points out that the petition to intervene
was filed for the limited purpose of seeking dismissal of the
action. I find it necessary to more carefully review the
papers filed by these Petitioners in Intervention and the
rules which apply in intervention. It is true that their
petition does indicate that a request is made for an order
granting them the status of intervening defendants limited at
this time to the right to raise issues relating to the dis-
missal of the application and reserving the question of
general participation. This is an interesting concept which
is not provided for in our rules of procedure. The Petition-
ers in Intervention carefully set forth a description of the
parties constituting that group, pointing out that the
"Montanans for the Preservation of Citizens' Rights" is an ad
hoc group of individual Montana citizens, voters, and taxpay-
ers formed to preserve and protect constitutional rights,
that CI-30 "threatens to take away and impair these existing
constitutional rights," and that "[ilndividual group members
are, therefore, individually directly adversely affected by
the proposed measure." The next paragraph refers to the
Montana State AFL-CIO and points out that their rights are
threatened or jeopardized by the initiative measure. In a
similar manner the Women's Law Caucus is described as a
unique group whose members are individually and collectively
adversely affected or threatened by CI-30. Next a number of
individual persons are named whose rights of suit are stated
to be adversely affected by CI-30. In summary, the petition
states that all of these Petitioners in Intervention were
plaintiffs/relators in the prior case before this Court and
as such "they have a keen and ongoing interest in the dispo-
sition of the present matter." By the wording of this peti-
tion, the Intervenors have met the requirements of Rule
24 (a), M.R.Civ.P. which grants a right to intervene as a
matter of right when an applicant claims an interest relating
to the subject of the action and is so situated that the
disposition of the action may as a practical matter impair or
impede the applicant's ability to protect that interest.
Further, the Petitioners in Intervention have followed the
procedure required under Rule 24 (c), M. R. Civ.P. which re-
quires the presentation of a motion to intervene accompanied
by a pleading setting forth their defense. Attached to their
petition, the Intervenors have set forth an answer which
responds to the complaint and petition on the part of plain-
tiff Marbut. This answer has been carefully drawn and demon-
strates a real and significant controversy between the
Petitioners in Intervention and Mr. Marbut.
In their petition for Intervention the petitioners state
they "do not wish to supply the requisite adversity to the
present collusive proceedings" and therefore ask that they be
allowed to raise the issues relating to dismissal without
being admitted as parties under the provisions of Rule 24.
Petitioners in Intervention cite no authority for such an
appearance under Rule 24. The parties seek a limited type of
appearance while claiming the benefit of an intervention as a
matter of right under Rule 24.
The Secretary of State has now filed a memorandum in
which he points out that Rule 24, M.R.Civ.P. provides that a
party who intervenes voluntarily is deemed to have appeared
before the Court for all purposes. The Secretary of State
requests that the motion to intervene by the Petitioners in
Intervention be granted and that such petitioners be given
"full party in interest" status. The Secretary of State does
not cite any specific case authority for that position.
I conclude that the wording of Rule 24, M.R.Civ.P.
clearly warrants the issuance of an order approving the
intervention of right by the Petitioners in Intervention. I
further am unable to find anything in the Rules which justi-
fies a petition to intervene for the limited purpose of
seeking dismissal. I conclude there is a reasonable basis to
enter an order of intervention.
The essence of the majority opinion is that there is no
justiciable controversy between plaintiff Marbut and the
Secretary of State and that the petition therefore should be
denied. I do not take issue with the general authority which
is quoted in the majority opinion defining the nature of the
justiciable controversy which is required in various types of
actions, including declaratory judgment proceedings. I do
dispute the application of those rules of law to the present
proceeding so far as CI-30 is concerned. I do agree with the
holding of the majority so far as CI-27 is concerned because
of the absence of real parties in interest in the issue
regarding CI-27.
Our question is whether we should allow the filing of
plaintiff Marbut's complaint and the answers by the Secretary
of State and the Petitioners in Intervention. The majority
concludes there is an absence of a justiciable controversy
and adverse parties. In Forty-Second Legislative Assembly v.
Lennon (1971), 156 Mont. 416, 481 P.2d 330, an original
proceeding was brought before this Court for declaratory
judgment. The proceeding sought a determination of whether
state and local officers could serve as delegates and whether
the legislature could provide for non-partisan nomination and
election of delegates to the Constitutional Convention. The
parties plaintiff in that case were the Legislature itself
and the Secretary of State. The sole defendant was the Clerk
and Recorder of Cascade County. This Court pointed out in
its decision granting a declaratory judgment:
Here we have a presently existing bona fide, justi-
ciable, legal controversy concerning the authority
of the legislative assembly . . . in enacting
mandatory enabling legislation for a constitutional
convention. Resolution of the issues presented
here is necessary to eliminate or reduce a multi-
plicity of future litigation; to prevent intermi-
nable delay . . . and to eliminate needless
expenditure of public funds .. . One of the basic
purposes of the Montana Declaratory Judgments Act
is to provide a procedure for advance determination
of such issues, thereby eliminating these otherwise
detrimental results.
Lennon, 481 P.2d at 332-33. That is the real basis on which
this Court reached its declaratory judgment. No reference
was made to the absence of any real parties in interest to
establish a controversy. Clearly the Clerk and Recorder of
Cascade County whose duties in the course of an election are
largely ministerial could hardly be expected to afford the
type of defense and the presentation of justiciable issues
required under the various cases cited in the majority opin-
ion. This Court concluded that because of the significant
issues in the formation of the Constitutional Convention, it
should take jurisdiction for declaratory judgment purposes
even though there was no justiciable controversy with the
named defendant and even in the absence of "real" parties in
interest. This broad statement of the powers of this Court
was established prior to the enactment of the 1972
Constitution.
Grossman v. State, Dept. of Natural Resources (Mont.
1984), 682 P.2d 1319, 41 St.Rep. 804, was an original pro-
ceeding brought by a single taxpayer seeking a declaration
that statutes allowing the issuance of coal severance bonds
were unconstitutional. The unanimous opinion of the Court
contains an extensive discussion of the rights of the citi-
zen, resident and registered elector to bring this original
declaratory judgment proceeding before the Supreme Court.
The Court concluded:
We therefore hold that this Court does have origi-
nal jurisdiction to accept declaratory judgment
proceedings where the issues have impact of major
importance on a state-wide basis, or upon a major
segment of the state, and where the purpose of the
declaratory judgment proceedings will serve the
office of a writ provided by law ...
Grossman, 682 P.2d at 1321. The Court discussed at some
length the questions raised as to whether or not a single
citizen had the right to bring such a proceeding and conclud-
ed that the Court had authority over both the subject matter
and the parties. In a key statement which I find directly
applicable to the present proceeding, the Court stated:
We should without hesitancy recognize this case for
what it appears to be: a test case designed to
obtain a final judgment on the validity of coal
severance tax revenue bonds so that if valid, the
bonds will be marketable. We will no longer be
qualmish about jurisdiction in a bond issuance
case. - - issues are fairly stated, fully
When the
explored and vigorously contended, as they appear
here, we have a justiciable controversy suitable
- --
for final resolution by this Court. Legal niceties
must bend on occasion - - reality - - market.
--- to the of the
- )
The living law moves - - times.
added.
with the (Emphasis
Grossman, 682 P.2d at 1326.
I would agree that our rules of procedure do allow the
dismissal of the petition as to CI-30 on the grounds of the
absence of a justiciable controversy and the absence of real
parties in interest. However, in reaching that conclusion, I
believe we are disregarding the broad principles set forth in
both Lennon and Grossman.
The people of Montana signed sufficient petitions to
qualify CI-30 for a state-wide election under art. XIV, S 9
of the Constitution. Next the people approved CI-30 in the
1986 general election. This Court concluded that the notices
were insufficient and voided the 1986 vote. A critical issue
remains: Is CI-30 still "alive" so that the people of Mon-
tana retain the right to vote on CI-30 at the "next regular
state-wide election?"
A companion issue of major importance is whether the
"next regular state-wide election" is the primary election of
June 7, 1988? If CI-30 is to be considered at that primary
election, then the various notices must commence in April
1988. Time is critically significant. If CI-30 must be
presented for a vote at the 1988 primary election, but there
is a failure for any reason to properly present the same for
vote, the issue may become moot without an opportunity on the
part of the people of Montana to cast their vote.
I conclude that the interest and involvement of many
citizens of Montana in the initiative process as it relates
to CI-30 justifies the conclusion that we are dealing with an
issue of major importance on a state-wide basis. I conclude
this meets the test of Grossman where this Court stated that
even though Grossman was a "test case1' designed to obtain a
judgment, this Court would accept jurisdiction. I would
apply the Grossman rationale to this case and conclude that
here the issues are fairly stated, can be fully explored and
vigorously contended, and we have a justiciable controversy
which requires that "legal niceties must bend on occasion to
the reality of the market."
Rather than denying the petition of the plaintiff, as
was done in the majority opinion, I would grant the petition
and make the following provisions: I would direct the Clerk
of this Court to immediately file the complaint of plaintiff
Marbut and also to immediately file the answers on the part
of the defendant Secretary of State and the Plaintiffs in
Intervention. I would further set an abbreviated schedule of
briefing and argument in order that an appropriate decision
could be made with regard to the placement of CI-30 on the
1988 primary election ballot.
Mr. Justice L. C. Gulbrandso
dissent.
/