State Ex Rel. Montanans for the Preservation of Citizens' Rights v. Waltermire

No. 88-168
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA ex rel. MONTANANS FOR THE
PRESERVATION OF CITIZENS' RIGHTS; the
MONTANA STATE AFL-CIO; the WOMEN'S LAW
CAUCUS; TYNDALL COX; GARY HENRICKS and PAM
McCLAIN, individually and as next friend of
her minor daughter, FELICIA McCLAIN; and the
MONTANA TRIAL LAWYERS ASSOCIATION,
Plaintiffs and Relators,
-vs-
JIM WALTERMIRE, Secretary of State of the
State of Montana; GERALD WINE, Election
Administrator and Clerk and Recorder of
Gallatin County, Montana, individually and as
representative of the Class of All Election
Administrators and Clerk and Recorders of the
State of Montana; and the STATE OF MONTANA,
Defendants and Respondents.
ORIGINAL PROCEEDING
COUNSEL OF RECORD:
For Plaintiffs and Relators:
James H. Goetz and William L. Madden, Jr.; Goetz,
Madden and Dunn, P.C., Bozeman, Montana
For Defendants and Respondents:
Gregory L. Curtis, Chief Legal Counsel, Office of the
Secretary of State, Helena, Montana
Honorable Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Assistant Attorney General
Walter S. Murfitt, Special Assistant Attorney General; Luxan
and Murfitt, Helena, Montana
A. Michael Salvagni, Gallatin County Attorney, Bozeman, MT
Submitted: April 19, 1988
Decided: April 21, 1988
Filed: APR 2 2 1988 -
*#
-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion and Order of
the Court.
Based principally on the language of the state
constitution itself, we determine in this original
proceedings that proposed amendments to the state
constitution through ballot Initiatives CI-30 and CI-27 would
now be improper; and that state election officials charged
with duties relating to further dissemination or publication
of information relating to such initiatives, computing
election results thereon, or canvassing and certifying the
results thereof should be enjoined from so proceeding.
In the interim between the filing of the application in
this proceedings and this writing, Secretary of State Jim
Waltermire met an untimely death in a disastrous air
accident. The members of this Court joined in the general
outpouring of shock and grief at his death, and in the
deep-felt expressions of sympathy and condolence to his
aggrieved widow. We emphasize that by nothing here stated do
we slight in the smallest degree his devotion to his public
duty, nor his perception of those public duties.
The office of Secretary of State was being administered
by the acting Secretary of State, and a successor Secretary
to the late Mr. Waltermire has now been appointed. In usual
circumstances, we could, out of decent respect, await the
decision of the new Secretary to determine his stance in this
matter before deciding the issues. Exigencies of time and
expense compel us, however, to proceed quickly to a
disposition of the cause.
Constitutional Initiative 30 (CI-30) has been the
subject of earlier original proceedings before this Court.
State of Montana ex rel. Montana Citizens for the
Preservation of Citizens' Rights, et al. v. Jim Waltermire,
et al., No. 86-400 (Mont. 1986), 729 P.2d 1283, 43 St.Rep.
2192; State ex rel. Montana Citizens for the Preservation of
Citizens' Rights, et al. v. Jim Waltermire, et al. , Opinion
and Order on Reconsideration (Mont. 1987), 738 P.2d 1255, 44
St.Rep. 913. A more detailed explanation of the language of
CI-30 and the issues involved therein may be obtained from
those volumes. It is enough to say here that CI-30 would
amend Art. 11, § 16 of the Montana Constitution.
Following the state general election of November 4, 1986
and canvass by the Board of State Canvassers, (21-30 was
certified as having amended by initiative through passage by
the electorate Art. 11, S 16 of the state constitution. That
certification of the initiative, and the election thereon,
was voided by this Court on two principal grounds: (1) that
an error had been made in the voter information pamphlet
describing CI-30; and, (2) that the proposed amendment had
not been published prior to the election as required by law.
738 P.2d at 1258, 1262.
On September 15, 1987, Gary S. Marbut, a registered
elector of Montana, and the Secretary of State filed a joint
affidavit entitled, "Submission of Controversy Without
Action" in the District Court, Fourth Judicial District,
Missoula County (Cause No. 67691). The District Court made
findings of fact and conclusions of law dated November 6,
1987 refusing to order a further election on CI-30, and
holding that the issues presented had been decided by this
Court. See, 738 P.2d at 1271-1272. No appeal was taken from
the order of the Missoula County District Court in cause no.
67691.
We must now refer to (21-27. The applicants in this case
have not sought any relief relating to CI-27. We must
examine the purpose and history of CI-27, however, because it
is pertinent to this proceeding.
CI-27 was a proposed constitutional initiative amendment
which would add a new section to Art. VIII of the state
constitution to be designated as S 15. The proposal would
have provided that "no tax shall be imposed on any real or
personal property. The establishment of a sales tax, or the
increase in sales tax or personal income tax shall be
accomplished only by referendum of the legislature with the
approval of the majority of the qualified electors or
initiative of the people."
CI-27 was attacked for its constitutionality in State of
Montana ex rel. Montana School Board Association, et al. v.
Jim Waltermire, Secretary of State, et al., No. 86-411 (Mont.
1986), 729 P.2d 1297, 43 St.Rep. 2198. This Court declined
in that proceeding to consider the constitutionality of CI-27
and dismissed the action of the relators without prejudice.
At the state general election of November 4, 1986, CI-27 was
defeated by the electorate.
A separate action was later filed in the District Court
of the Fourth Judicial District, Missoula County, before a
different district judge, relating to CI-27. The
complaintants were Emery M. Benson, Robert E. Godwin, Gary S.
Marbut, et al., Freemen, v. "Montanans against CI-27" ex rel.
Montana Association of Counties, Gordon Morris, et al., cause
no. 65743. In their complaint, the complainants alleged that
their constitutional rights regarding CI-27 had been violated
because of the alleged faulty publication of the proposed
initiative before the election. The Secretary of State was
joined as a defendant in the action through an amendment to
the original complaint. The District Court granted a summary
judgment based on our decision in the CI-30 case. The
District Court held that because of the lack of proper
publication of CI-27, the result of the election on CI-27 was
void. In effect, the District Court said that by voiding the
election on CI-27, that initiative had neither passed nor
failed at the election, and that a certified version of the
initiative had never been submitted properly for a vote. The
District Court refused, though requested to do so, to order a
new election on CI-27, pursuant to S 13-35-107, MCA, holding
instead that the constitutional provision of Art. XIV, 9,
specifically required publication of the proposed amendment
prior to the next "regular statewide election" and "at that
election, the proposed amendment shall be submitted to the
qualified electors for approval or rejection." The District
Court then went on to hold as a conclusion of law that
because CI-27 had not been published as required by law, the
matter had not been expressly submitted as required by the
state constitution and that it was the duty of the Secretary
to publish the proposed constitutional amendment and submit
it to the electorate at the next general election. Upon a
subsequent motion to clarify the judgment, the District Court
held that this could be either a general or a primary
election.
The effect of the District Court's decision required
also a summary judgment in favor of the other defendants in
the cause, who, it had been alleged, were guilty of unfair
election practices relating to CI-27. The holding of the
court was that since the election itself was void, their
activities respecting CI-27 could have no effect. Again, no
appeal was taken from the decision of the District Court.
Acting on the District Court's opinion that the
Secretary of State had a duty to resubmit CI-27 at the next
statewide election, the Secretary informed the various clerks
and recorders of the Montana counties that he intended to
place both CI-30 and CI-27 as proposed constitutional
initiatives for decision on the Montana primary election
ballot to be conducted on June 7, 1988. Since that
announcement, the Secretary has taken such statutory steps as
are required by law to place such initiatives on the primary
election ballot, including necessary certifications,
preparation of ballots and publications in various
newspapers. Moreover, such additional steps will be taken by
the office of the Secretary of State as may be necessary to
present the initiatives to the electorate on primary election
day. We are advised by the affidavit of the acting Secretary
of State that voter information pamphlets are now being
prepared and will be printed unless the election thereon is
ordered stopped. Unless contracts for the printing of the
voter information pamphlets are cancelled on or before April
22, 1988, printing costs will be unavoidably incurred in the
sum of $12,483.27.
There are issues and counter-issues raised by the
application of the relators here, and by the responses
thereto from the defendants. The single determinative issue
before us, however, may be stated thusly:
Must a constitutional initiative, once approved or
defeated at a regular statewide election, be
resubmitted to the electorate at the next regular
statewide election, where procedural defects of
constitutional proportion caused the first election
result thereon to be voided?
If the answer to the foregoing question is "yes," then,
of course, the Secretary of State, as the state supervisor of
elections and election officials has the duty to resubmit the
initiative. If the answer is "no," then there is no
corresponding duty incumbent upon the Secretary.
The answer, we think, lies in the language of the state
constitution itself, which permits constitutional amendments
by initiative. Art. XIV, § 9, provides:
Section 9. Amendment a Initiative. (1) The
people may also propose constitutional amendments
by initiative. Petitions including the full text
of the proposed amendment shall be signed by at
least 10 percent of the qualified electors of the
state. That number shall include at least ten
percent of the qualified electors in each of
two-fifths of the legislative districts.
(2) The etitions shall be filed with -
- the
09
s e c r e E y - state. If the petitions are found to
have been signed by the required number of
electors, the secretary of state shall cause the
amendment - - published as provided b~ law twice
to be
each month - - months previous - the next
for two to
regular statewide election.
At that election, the proposed amendment shall
(3) - -
be submitted to the qualified electors for approval
or rejection. If approved by a majority voting
thereon, it shall be a part of the constitution
effective on the first day of July following its
approval, unless the amendment provides otherwise.
(Emphasis added.)
We know that in this case, the petitions relating to
CI-30 were filed in the office of the Secretary of State in
1986. On July 30, 1986, the Attorney General certified CI-30
to the Governor as a proposed constitutional initiative
amendment. Before that time, the Secretary of State had
certified to the Governor that the completed petitions for
CI-30 had been officially filed in his office. Under
subdivision (2) of S 9, Art. XIV, supra, the amendment was
required to be published twice each month for two months
previous to the next regular statewide election. The "next
regular statewide election" in the case of CI-30, could only
be the general election of November 4, 1986, which followed
the filing of the petitions with the Secretary of State.
Further, under subdivision (3) of S 9, Art. XIV, supra, it is
"at -
- that election [that] the proposed amendment shall be
submitted to the qualified electors for approval or
rejection." If we were to construe S; 9, Art. XIV, supra, to
permit the resubmission of constitutional initiatives to the
-
electorate "at succeeding elections," we would be inserting
in the constitutional provision language not otherwise to be
found there. No court in this state has such power.
Undoubtedly, the proponents of CI-30, in circulating and
obtaining the petitions which led to the certification of the
proposed amendment for the ballot, so construed the
constitution. The petitions proposed "that the Secretary of
State place the following constitutional amendment on the
November 4, 1986 general election ballot." The signers of
the petition themselves petitioned that the initiative be
placed on the November 4, 1986, ballot and not at any other
time.
In so holding, we are fully mindful that the people of
this state in adopting the 1972 state constitution reserved
unto themselves the exclusive right of governing themselves,
and to alter or abolish the constitution whenever they deemed
it necessary. (Art. 11, S; 2, 1972 Mont. const.) We are
concernedly aware of our judicial duty to preserve this right
where possible. As the majority stated in State - -
ex rel.
Montana Citizens - Waltermire, supra, 729 P.2d at 1285:
v.
The right retained by the people of Montana to
change our constitution by initiative is unique.
The people do not have such a right under the
federal Constitution nor under many state
constitutions. In Montana this right of
constitutional change by initiative was first
inserted in the 1972 constitution. As we stated in
our opinion in State - -ex rel. Montana School Board
Association v. Waltermire (1986), - Mont. I
729 P.2d 1297, we should decline to interfere with
this right of constitutional change by initiative
unless it appears - - absolutely essential.
to be
(Emphasis added.)
Essentiality is found when the constitution itself
dictates the manner in which it may be amended.
Constitutional provisions for amendment of their own force
must be complied with:
... Although the people of this State have
retained the exclusive right of governing
themselves, and the right to alter or abolish the
constitution or form a government whenever they
deem it necessary (Art. 11, S 2), it is nonetheless
true that as long as the State Constitution is in
effect, the people may amend the constitution by
initiative only in the manner provided by the
constitution. "The sovereignty of the people is
itself subject to those constitutional limitations
which have been duly adopted and remain
unrepealed." Hunter v. Erickson (1969), 393 U.S.
385, 392, 89 S. Ct. 557, 561, 21 L. Ed. 2d 616.
State - - Montana Citizens - Waltermire, supra, 738 P.2d
ex rel. v.
at 1258.
Grammatically, logically and legally, under our state
constitution, constitutional amendment initiatives must be
voted upon at the next regular statewide election following
the filing of the petitions in the office of the Secretary of
State. While the legislature may, as in this case, flesh out
constitutional provisions by legislation implementing the
constitutional requirements (as for example, the procedures
for procuring signatures to petitions, the forms of
petitions, the filing and certification of the same) such
legislation must be in aid of, and not in conflict with the
constitutionally provided procedures.
Under our holding here, it is not possible, as the
defendants suggest, that the purposeful or negligent or
capricious acts of state or county officials or other persons
could in effect hold an initiative proposal "hostage" by some
action or inaction. One may envision other omissions,
defects or acts in the election or petition process but
unless they run afoul of specific constitutional
requirements, they would be short of constitutional weight.
Because a resubmission of CI-30 to the electorate cannot
be accomplished in a manner prescribed by Art. XIV, 5 9, the
Secretary of State has no duty to place the same on the
upcoming primary ballot, and in fact is precluded from doing
the same. Such injunctive orders as are necessary to
preclude the resubmission of CI-30 at the next state primary
election must necessarily issue here. Since our holding here
is dispositive of the central issue, there is no need for us
to discuss or dispose of other issues raised by the parties
in this cause, except for the request of the plaintiffs for
indemnification to the State by the Secretary of sums spent
in connection with the resubmission of CI-30.
It is clear that the Secretary acted in proposing to
resubmit CI-30 in accordance with the decision of the
District Court in Missoula County in the litigation
pertaining to CI-27. There, the District Court saw such a
duty incumbent upon the Secretary of State, although it was
not within the power of the District Court to set a special
election. The Secretary contended here that since we had
decided we had no such inherent power to order a special
election (738 P.2d at 1272) and the District Court had
decided it had no such power, the Secretary himself had a
duty as executive officer to go forward with the initiative.
It is clear that the Secretary acted for plausible and
straightforward reasons. Although our holding here is
adverse to what he proposed to do, there is no reason here to
impose monetary sanctions upon the Secretary.
In all the foregoing discussion, we have concerned
ourselves with the issue of placing initiative CI-30 for
resubmission on the ballot. We do not have before us an
issue raised by the parties relating to CI-27, although the
resubmission of CI-27 on the next statewide primary election
is inextricably intertwined with the issues relating to the
resubmission of CI-30. It would be judicially unreasonable,
we conclude, to allow CI-27 to remain on the primary election
ballot, knowing as we do with all possible certainty, that if
an opponent of CI-27 came to this Court seeking injunctive
relief, that relief would likewise be granted. The
Secretary's successor has advised in his response and briefs
to this Court in this proceeding that he will be governed as
to CI-27 in the same manner as we decide the issues relating
to CI-30. To assure the Secretary of our agreement in that
regard, our injunctive orders in this case will and do
prevent the resubmission of CI-27. That is simply judicial
economy.
We remind all parties, proponents and opponents of the
proposed constitutional amendments by initiative that nothing
herein stated prevents the recirculation of initiative
petitions pertaining to the same subjects in the manner
provided by the state constitution and the laws in
conformance therewith.
Gerald Wine, Election Administrator and Clerk and
Recorder of Gallatin County, Montana, has moved this Court
for an order dismissing the application insofar as it names
him as the representative of the class of all election
administrators and clerks and recorders of the State of
Montana. His motion for dismissal will be granted as there
is no need here to establish such a class in order to
effectuate this Opinion.
WHEREFORE, HAVING CONSIDERED the complaint of the
plaintiffs herein, the response of the Secretary of State
thereto, the motion of respondent Gerald Wine and the
response of the Attorney General of the State of Montana, and
the memoranda and exhibits submitted by respective parties in
connection therewith, and finding expeditious action
necessary in the premises,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. The motion of Gerald Wine, Election Administrator
and Clerk and Recorder of Gallatin County, Montana, for his
dismissal from this action as a defendant/respondent be and
the same is GRANTED.
2. A constitutional initiative once approved or
defeated at a regular statewide election may not properly be
resubmitted to the electorate at the next regular statewide
election, where certain procedural defects of constitutional
proportion have caused the first election result thereon to
be voided.
3. It is meet and proper in the premises that this
Court accept original jurisdiction of these proceedings in
view of the exigencies of time and expense to the State of
Montana in connection with the proposed resubmission of
Initiatives CI-27 and CI-30. The Secretary of State of
Montana, his incumbent successor or successors to his present
term of office, his agents and employees are hereby
mandatorily enjoined, restrained and prevented from taking,
directly or indirectly, any further steps, actions or
proceedings not heretofore already taken which are designed
or intended to place on the election ballot, through local
election officials or otherwise, Constitutional Initiative 30
(CI-30) and Constitutional Initiative 27 (CI-27) at the state
primary election which will be held on June 7, 1988; that
they and each of them are further enjoined, restrained and
prevented from distributing to local election administrators
or through them to voters, the voter information pamphlet
which includes either CI-30 or CI-27 or to pay state monies
for the preparation, printing or distribution of such voter
information pamphlets relating to those initiatives, except
for those expenses for which the State is now contractually
bound to pay; that the Secretary of State, his incumbent
successor or successors and their agents and employees are
encouraged, but not mandatorily enjoined, to take such
further actions as may have the effect of removing from said
primary election ballot any reference to initiatives CI-30 or
CI-27; or, if that is not possible, to take such steps as may
seem reasonably calculated to relieve any confusion of the
electorate respecting said initiatives, including the
incurring of reasonable expenses to that end; that if the
actions heretofore taken by the Secretary are irrevocable,
and the ballots presented to the electorate at said June 7,
1988 primary election contain provision for the vote of the
electorate on either CI-30 or CI-27, the Secretary of State,
his incumbent successor or successors, their agents and
employees, are each hereby mandatorily enjoined, restrained
and prevented from calculating or computing any election
results as to passage or nonpassage by the electorate of
either CI-30 or CI-27, and from certifying the same results
in any manner, and from canvassing any election results
relating to said initiatives and from certifying to any other
state official the passage or nonpassaqe of said initiatives.
4. The prayer for monetary sanctions or indemnification
from the Secretary of State is hereby DENIED.
5. No costs to either party.
6. This Opinion and Order when signed by the majority
of the members of this Court and filed in the office of the
Clerk of this Court shall be and constitute and serve the
office of a judgment and mandatory injunctive order, without
the necessity of further judgment, orders or writs issued by
this Court. The Clerk of this Court shall forthwith serve
certified copies of this Opinion and Order on counsel of
record for each and all of the parties appearing herein by
telephonic communication and by ordinary mail and this
Opinion and Order shall be in full force and effect as to
each party herein from and after the receipt by his or her
respective counsel of record of such telephonic communication
or service by mail. The Clerk of this Court shall make and
file in this cause her written certificate showing the
manner, time, date and names of each counsel or firm served
by her in accordance with this Order.
DATED this 21st day of April, 1988.
C 2 ~ e . u
Justice
We Concur:
Mr. Justice L. C. Gulbrandson did not participate in this
case.