Montanans Opposed to I-166 v. State

August 10 2012
OP 12-0439
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 168_________________
MONTANANS OPPOSED TO I-166, a Political
Committee, SENATOR DAVE LEWIS,
Individually, and as an Elected Member of the
Montana Legislature, PHIL LILLEBERG,
Individually, and as an Owner of FP, INC., a
Montana Corporation,
Petitioners, OPINION
and
v. ORDER
STATE OF MONTANA HONORABLE STEVE
BULLOCK, in his capacity as Attorney General
and the HONORABLE LINDA McCULLOCH, in
her capacity as the Secretary of State,
Respondents.
¶1 Petitioners brought an original proceeding in this Court pursuant to § 13-27-316,
MCA, attacking the validity of Initiative 166. They request that this Court rule that the
Attorney General and the Secretary of State did not comply with their responsibilities under
law when they failed to act to bar I-166 from appearing on the general election ballot. I-166
is a ballot initiative that would establish that the policy of the State of Montana is that
corporations are not entitled to constitutional rights and are not persons. It “charges” elected
officials to implement the policy in part by acting to prohibit corporate political campaign
spending and to limit political spending in elections. It further “charges” Montana’s
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congressional delegation with proposing an amendment to the United States Constitution
establishing that corporations are not human beings entitled to constitutional rights.
¶2 The Montana Constitution, Art. III, sec. 4, empowers the people to enact laws by
initiative on all matters except appropriations and local or special laws. Proponents of an
initiative must gather a sufficient number of signatures on petitions that support placing the
matter on the ballot. Prior to gathering signatures the proponents must submit to the
Secretary of State the proposed text of the ballot issue along with a draft statement of the
purpose of the initiative and a separate statement of the implications of a vote for or against
the issue. The Secretary of State must submit the measure to the Legislative Services
Division for review and thereafter to the Attorney General for review. Upon review by
Legislative Services and upon approval of the Attorney General, the Secretary of State then
notifies the proponents of the measure, who may begin gathering signatures. Section 13-27-
202, MCA.
¶3 The Attorney General’s review is limited to determining the sufficiency of the ballot
statements and a review of the ballot issue for legal sufficiency. Section 13-27-312, MCA.
The statements must explain the purpose of the measure in 100 words or less and the
implications of votes for or against, in 25 words or less. Section 13-27-312(2), MCA. The
Attorney General’s legal sufficiency review determines whether the proposal complies with
the applicable statutory and constitutional requirements. The legal sufficiency review
specifically “does not include consideration of the substantive legality of the issue if
approved by the voters.” Section 13-27-312(7), MCA.
2
¶4 In the case of I-166, the Secretary of State received the proposal and submitted it to
Legislative Services and then to the Attorney General for review. The Attorney General
revised the proponents’ statement of purpose but otherwise notified the Secretary of State
that the proposal met the required legal sufficiency review. Upon notification by the
Attorney General the Secretary of State notified the proponents of I-166 that they could
begin gathering signatures, as provided in § 13-27-202. MCA.
¶5 The current petitioners, opponents of I-166, contend that the ballot statements do not
comply with law and that the Attorney General should not have approved them. They also
contend that the initiative itself is unlawful on several grounds including that it is a
resolution and not a law; that it improperly amends the Montana Constitution; and that it
improperly directs elected representatives how to vote. They sued under § 13-27-316(2),
MCA, which allows opponents of a ballot issue to contest the adequacy of the explanatory
statements and of the Attorney General’s determination of legal sufficiency. They seek no
other relief.
¶6 As previously explained, the Attorney General’s review for legal sufficiency is
limited by law to determining whether the petition for a ballot issue complies with the
statutory and constitutional requirements “governing submission of the proposed issue to the
electors.” It does not include consideration “of the substantive legality of the issue if
approved by the voters.” Section 13-27-312(7), MCA. However, the petitioners in this case
seek to have this Court require that the Attorney General undertake precisely the substantive
legal review that is excluded by law. By statute, the Attorney General had no power to
3
review the substantive legality of I-166. The petition does not allege nor does this Court find
that the petition was legally insufficient as to the requirements for submission of a proposed
ballot issue.
¶7 We have reviewed the explanatory statements that were approved by the Attorney
General. Section 13-27-312(4), MCA, requires that the statements of purpose and of the
implication of a vote must be “true and impartial” and must be in “easily understood
language and may not be arguments or written so as to create prejudice for or against the
issue.” The petitioners request that this Court either reject the statements approved by the
Attorney General, or re-write them. Upon review of the statements we determine that they
meet the requirements of § 13-27-312(2) and (4), MCA.
¶8 Petitioners have not requested any other relief, see e.g. Harper v. Waltermire, 213
Mont. 425, 691 P.2d 826 (1984), and we decline to consider any such issues not properly
pled.
¶9 For the reasons stated above, the petition is denied.
DATED this 10th day of August, 2012.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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Justice Beth Baker, concurring.
¶10 I concur with the Court’s decision to reject the petition in this case and to allow I-166
to appear on the November 2012 general election ballot. I also concur in the Court’s
determination that the Attorney General’s ballot language fairly represents the text of the
measure and therefore meets the requirements of § 13-27-312(2) and (4), MCA.
¶11 The key issue is whether the petition states a claim that may be entertained in a pre-
election original proceeding before this Court. While striving to give liberal construction to
constitutional and statutory initiative and referendum provisions in order “to maintain the
maximum power in the people,” the Court previously has invalidated proposed ballot issues
that are beyond the power that the people reserved to themselves in Article III, Sections 4
and 5, of the Montana Constitution. Chouteau County v. Grossman, 172 Mont. 373, 378,
563 P.2d 1125, 1128 (1977) (invalidating county referendum proposal that concerned an
administrative rather than legislative function); Harper, 213 Mont. at 428-29, 691 P.2d at
828-29 (invalidating initiative that proposed a legislative resolution compelling the
legislature to reach a specific result).
¶12 Since those cases were decided, the legislature has acted several times over the years
to clarify when legal challenges may keep an initiative or referendum off the ballot. Section
3-2-202(3)(a), MCA, under which the petition in this case was filed, now makes clear that
this Court has original jurisdiction to review “the attorney general’s legal sufficiency
determination in an action brought pursuant to 13-27-316.” Under § 13-27-316(2), MCA,
5
Petitioners here have requested the Court to alter the Attorney General’s ballot statements
and to overrule his determination that the petition is legally sufficient.
¶13 Consistent with its obligation to construe the statutes to promote, rather than to curtail,
the people’s right of direct democracy, the Court interprets the Attorney General’s “legal
sufficiency” review authority narrowly. Thus, the Court refuses to read § 13-27-312(7),
MCA, as conferring power on the Attorney General to reject a citizen-initiated ballot
measure for constitutional deficiency. (Opinion, ¶ 6.) The Dissent argues that the Attorney
General has power to declare a proposed initiative or referendum facially unconstitutional
and to prohibit its placement on the ballot. (Dissent, ¶ 40.) While I believe that it is the
judicial branch of government, not the executive, that determines whether a ballot measure is
facially unconstitutional, I do not confine my decision in this case to the Court’s rationale
that the petitioners simply failed to request the proper form of relief.
¶14 “[W]hen the legislature has prescribed a specific process for a court challenge to a
ballot measure, we have refused to intervene prior to the election if that process was not
followed.” Reichert v. State, 2012 MT 111, ¶ 95, 365 Mont. 92, 278 P.3d 455 (Baker, J.,
concurring and dissenting) (citing State ex rel. Mont. Citizens for the Preservation of
Citizens’ Rights v. Waltermire, 224 Mont. 273, 278, 729 P.2d 1283, 1286 (1986)). In
contrast to the law at the time Harper and Grossman were decided, the statutes now reflect a
clear preference to defer ruling on the constitutionality of a proposed initiative petition until
after the results of the election at which it is submitted to the voters. The governing statutes
expressly preserve “the right to challenge a ballot issue enacted by a vote of the people.”
6
Section 3-2-202(5), MCA. See also § 13-27-316(6), MCA (“This section does not limit the
right to challenge a constitutional defect in the substance of an issue approved by a vote of
the people.”). (Emphasis added.)
¶15 Petitioners’ claim that I-166 is beyond the power of initiative and referendum
challenges an alleged constitutional defect in the substance of the measure. Whether or not
the Court possesses original jurisdiction in a proper proceeding to invalidate a proposed
ballot measure prior to the election (§ 3-2-202(1), MCA), I would hold in this case that
Petitioners’ challenge to I-166 does not meet the Court’s own requirements for discretionary
exercise of its original jurisdiction (M. R. App. P. 14(2) and (4)) and must await the final
election results in November. At that time, if the measure is approved by the voters,
Petitioners may proceed by filing a complaint for declaratory judgment in district court and
by pursuing the “normal appeal process” in this Court. M. R. App. P. 14(4). That process is
better suited for the development and informed consideration of constitutional questions such
as those raised in the petition. I do not read the Court’s decision today to foreclose such a
challenge if the measure is approved in the general election.
/S/ BETH BAKER
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Justice James C. Nelson, dissenting.
¶16 I respectfully dissent from the Court’s decision to deny relief. I agree, rather, with the
arguments of Petitioners and would order the Secretary of State not to place I-166 on the
2012 general election ballot or, if the ballots have already been printed with the measure, not
to count the votes. See Reichert v. State, 2012 MT 111, ¶¶ 1, 13, 365 Mont. 92, 278 P.3d
455. Before detailing my legal analysis, I have three observations.
I. Contempt
¶17 First, aside from the fatal legal problem plaguing I-166 (discussed below), this
initiative is, at bottom, simply a feel-good exercise exhibiting contempt for the federal
government and, particularly, the United States Supreme Court.1 Obviously, corporations
are not “human beings,” and the fact that Montana voters may (or may not) have heartburn
with the notion of corporations as “persons” imbued with constitutional rights is largely
irrelevant. Make no mistake, I share the pain of my fellow Montanans. See Western
Tradition, ¶ 132 (Nelson, J., dissenting). And if Montana wants to change its laws to provide
that corporations are not persons and are without constitutional rights, it certainly can do
that. But the I-166 exercise—at least that portion of the initiative directing Montana’s
elected and appointed officials how to act at the state level—is not going to alter these
concepts at the federal level or in our sister states. Indeed, I suspect that amending
1
One could refer to this as “thumbing Montana’s nose” at the feds. Regardless of the
nomenclature, however, the intent is the same. I thus refer to this measure as “the I-166
exercise.” It is a sequel to the “Made in Montana” approach that failed in Western Tradition
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Montana’s laws in this fashion would put Montana corporations at a distinct disadvantage in
interstate commerce and, likely, cause Montana businesses to incorporate elsewhere.
¶18 The fact is that corporations are “persons” imbued with certain constitutional rights
because the Supreme Court has said so. First Natl. Bank v. Bellotti, 435 U.S. 765, 780 n. 15,
98 S. Ct. 1407, 1418 n. 15 (1978) (“It has been settled for almost a century that corporations
are persons within the meaning of the Fourteenth Amendment.”); but see Bellotti, 435 U.S. at
822-23, 98 S. Ct. at 1439-40 (Rehnquist, J., dissenting). The I-166 exercise, even if adopted,
is not going to change that. Likewise, the Supreme Court has also said, unequivocally, that
the protections of the First Amendment to the United States Constitution extend to
corporations, Citizens United v. FEC, ___ U.S. ___, 130 S. Ct. 876, 899-900 (2010) (citing
numerous cases dating back as far as the 1950s), and that the government cannot prohibit
corporations from making independent expenditures to influence elections and ballot issues,
Citizens United, 130 S. Ct. at 886, 913. Again, the I-166 exercise, even if adopted, is not
going to change that.
¶19 Montana challenged the applicability of Citizens United to Montana in the Western
Tradition case, citing Montana’s “unique” experience with political corruption and its 1912
Corrupt Practices Act. But Montana lost—summarily, no less:
The question presented in this case is whether the holding of Citizens United
applies to the Montana state law. There can be no serious doubt that it does.
See U.S. Const., Art. VI, cl. 2. Montana’s arguments in support of the
Partn. v. Mont. Atty. Gen., 2011 MT 328, 363 Mont. 220, 271 P.3d 1, rev’d sub nom. Am.
Tradition Partn. v. Bullock, ___ U.S. ___, 132 S. Ct. 2490 (2012) (per curiam).
9
judgment below either were already rejected in Citizens United, or fail to
meaningfully distinguish that case.
Am. Tradition, 132 S. Ct. at 2491. Thus, this Court’s decision in Western Tradition—
prominently cited at § 2(4) of I-166—is not the law of this State. And for the text of I-166 to
imply, as it clearly does, that Montana’s “uniqueness” argument and this Court’s decision in
Western Tradition are still in play is patently false and misleading. The Supreme Court in
American Tradition unequivocally rejected Montana’s “uniqueness” argument, the
applicability of Montana’s Corrupt Practices Act, and this Court’s decision to the contrary.
The Supreme Court held that Citizens United applies to Montana. Citizens United states that
“[c]orporations and other associations, like individuals, contribute to the discussion, debate,
and the dissemination of information and ideas that the First Amendment seeks to foster.”
Citizens United, 130 S. Ct. at 900 (internal quotation marks omitted). Like it or not, this is
the law of the land and Montana is going to have to comply with it.
II. False Promises
¶20 Second, and a point seemingly lost on those promoting the I-166 exercise, the
Supreme Court did not rely on corporate “personhood” in its decision in Citizen United.
Rather, the Supreme Court relied on the propositions, first, that expenditures (by a person or
an organization) on political communication are a form of “speech,” and second, that
“citizens [have the right] to inquire, to hear, to speak, and to use information to reach
consensus.” Citizens United, 130 S. Ct. at 898 (emphasis added). It should be noted that
these propositions were not created in Citizens United. Rather, they can be traced to Buckley
10
v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976) (per curiam), and Bellotti, 435 U.S. 765, 98 S. Ct.
1407. Notably, the Supreme Court observed in Bellotti that
[t]he court below framed the principal question in this case as whether and to
what extent corporations have First Amendment rights. We believe that the
court posed the wrong question. The Constitution often protects interests
broader than those of the party seeking their vindication. The First
Amendment, in particular, serves significant societal interests. The proper
question therefore is not whether corporations “have” First Amendment rights
and, if so, whether they are coextensive with those of natural persons. Instead,
the question must be whether [the statute at issue] abridges expression that the
First Amendment was meant to protect.
435 U.S. at 775-76, 98 S. Ct. at 1415. The Bellotti Court stated further that “[t]he inherent
worth of the speech in terms of its capacity for informing the public does not depend upon
the identity of its source, whether corporation, association, union, or individual,” 435 U.S. at
777, 98 S. Ct. at 1416, and that “the First Amendment goes beyond protection of the press
and the self-expression of individuals to prohibit government from limiting the stock of
information from which members of the public may draw,” 435 U.S. at 783, 98 S. Ct. at 1419(emphasis added).
¶21 Hence, the Supreme Court broke no new ground in Citizens United when it defined
the constitutional protection of speech from the perspective of the listener. “[I]t is inherent
in the nature of the political process that voters must be free to obtain information from
diverse sources in order to determine how to cast their votes,” and the First Amendment does
not allow “the exclusion of a class of speakers from the general public dialogue.” Citizens
United, 130 S. Ct. at 899. Quite the contrary, the First Amendment protects the “open
marketplace” of ideas, Citizens United, 130 S. Ct. at 899, and prohibits restrictions on
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political speech based on the speaker’s identity, Citizens United, 130 S. Ct. at 902-03.
Because voters must be free to obtain information from diverse sources, it is a violation of
the First Amendment to control expression by distinguishing among different speakers and
the subjects upon which they may speak. Citizens United, 130 S. Ct. at 898-99. The
Supreme Court held that this country’s law and tradition require more expression, not less,
Citizens United, 130 S. Ct. at 911, and that “[w]hen Government seeks to use its full power,
including the criminal law, to command where a person may get his or her information or
what distrusted source he or she may not hear, it uses censorship to control thought,”
Citizens United, 130 S. Ct. at 908 (emphasis added).
¶22 It is undoubtedly easier to sell the proposition that corporations are not “human
beings” or “persons” than it would be to persuade the electorate that the government may, in
fact, restrict the sources from which voters may get their information. Yet, in terms of what
these two actually accomplish, there is a world of difference. It is apparent that adoption of
the latter proposition (by Congress and three-fourths of the state legislatures) is what’s
needed to overturn Bellotti and Citizens United. Any amendment designed to negate these
precedents would need to exclude corporate expenditures from the definition of protected
“speech” under the First Amendment. Adopting the former proposition that corporations are
not “persons,” in contrast, accomplishes absolutely nothing for First Amendment purposes—
apart from wasting the electorate’s time and resources.
¶23 Viewed in the context of what Citizens United actually held, therefore, it is evident
that this initiative, as presently written, is little more than a source of false hope for many
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voters and an illegal—not to mention futile—attempt to end-run the Citizens United
decision. As with Montana’s first attempt to do that, I suspect that if the I-166 exercise
remains on the ballot and is challenged before the Supreme Court, it will suffer the same
summary rejection as did this Court’s decision in Western Tradition.
¶24 Charging Montana’s congressional delegation with the obligation of offering an
amendment to the United States Constitution to, among other things, overturn Citizens
United is an equally misguided feel-good exercise in contempt. Realistically, in today’s
political climate, a proposal to amend the federal Constitution (a nearly impossible task
under the most favorable circumstances) in order to overturn a Supreme Court decision that
is wildly popular with at least one of the major political parties, with one of the major fringe
parties, and, most importantly, with the very corporations that already effectively control
Congress has less of a chance at success than the proverbial snowball has of surviving in
Hades. It (the constitutional amendment) is not going to happen, and the attorneys and
public officials promoting the I-166 exercise would have to candidly admit that. Leading
voters to think otherwise is not only disingenuous, but just plain silly. An arguably more
productive focus would be on strengthening the disclosure laws. If voters have the right to
obtain information from diverse sources in order to make informed choices, as the Supreme
Court has said, then they also have a corresponding right to know who is providing the
information and the ability to judge the credibility, motives, and agenda of the speaker.
Citizens United, 130 S. Ct. at 914.
13
¶25 Even assuming, for the sake of discussion, that a federal constitutional amendment
were to be adopted, such an amendment would necessarily have to amend the First
Amendment itself—or even “repeal” it, as was done to the Eighteenth Amendment. See U.S.
Const. amend. XXI, § 1 (“The eighteenth article of amendment to the Constitution of the
United States is hereby repealed.”). The First Amendment, adopted in 1791, protects five
freedoms: religion, speech, the press, to peaceably assemble, and to petition for redress of
grievances. Important for our purposes here, it provides that “Congress shall make no law
. . . abridging the freedom of speech.” So, if the object of the I-166 exercise is to have
Congress and the states change this provision so as not only to permit restrictions on
corporate contributions and expenditures, but also to “accomplish a level playing field in
election spending” (see I-166, § 3(1)), then it will be necessary to make significant revisions
to the First Amendment’s currently broad and unqualified protection of “freedom of speech.”
Personally, I like the First Amendment the way it is, and I would not want anyone—
especially a politically polarized and dysfunctional Congress—tinkering with it. God only
knows what might come out of that effort.
III. Petitioners’ Hypocrisy
¶26 As for my third observation, Petitioners’ challenge, while legally sound, would be
more palatable if it were not so palpably hypocritical. As the 2011 session of the Montana
Legislature demonstrated time and again, there are some in that esteemed body who
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apparently believe it is part of their job descriptions to propose or adopt resolutions and bills2
(and issue press releases and other pronouncements) which effectively thumb Montana’s
nose at the federal government and federal law. See Western Tradition, ¶ 71 (Nelson, J.,
dissenting). Most thinking Montanans view this grandstanding for what it actually is:
political pandering which accomplishes nothing substantive and which wastes the valuable
state resources and limited time of the elected officials involved. Yet, here we are in court
with Petitioners rising up in righteous indignation against the same sort of I-166 exercise.
Apparently there is no shame. But then, to be right, the law does not require contrition or
regret. As noted, Petitioners are legally correct.
¶27 Petitioners advance five meritorious arguments: I-166 is a resolution, not a law; I-166
requires elected officials to vote in a particular predetermined manner; I-166 is a resolution
compelling Montana’s congressional delegation to propose an amendment to the United
States Constitution; I-166 contains more than one subject; and the statements prepared or
approved by the Attorney General do not meet the requirements of law. I am satisfied,
however, that the first argument is sufficient to resolve this case. The I-166 exercise facially
2
A partial listing of these sorts of resolutions and bills include: HJR1 (remove
gray wolf from endangered species list); HJR4 (opposing designation of national
monuments without consent from the state of Montana); SJR4 (urging Congress to adopt
a balanced budget amendment); SJR6 (regarding the use of federal lands); SJR7
(opposing definitions in the federal Water Pollution Control Act); SJR12 (regarding oil
and gas lease development on federal lands); HB414 (providing for federal mandate
accountability); SB 114 (requiring federal law enforcement to communicate with county
sheriffs); and SB254 (providing state eminent domain authority for federal lands).
Ironically, SB404, a bill that would have required constitutional analysis of bill draft
requests, died in committee.
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violates Article III, Section 4 of the Montana Constitution. My analysis below is focused on
this issue.
IV. I-166 Does Not Comply with Constitutional Requirements
¶28 As this Court recently stated, pre-election judicial review of initiatives should not be
routinely conducted, so as to protect and preserve the rights which Montanans have reserved
to themselves to change the laws or the Constitution through the initiative process. Reichert
v. State, 2012 MT 111, ¶ 59, 365 Mont. 92, 278 P.3d 455. However, this Court reserves the
right to declare patently defective measures invalid. Reichert, ¶ 59 (citing State ex rel. Steen
v. Murray, 144 Mont. 61, 69, 394 P.2d 761, 765 (1964), State ex rel. Harper v. Waltermire,
213 Mont. 425, 428, 691 P.2d 826, 828 (1984), Harper v. Greely, 234 Mont. 259, 268, 763
P.2d 650, 656 (1988), and Cobb v. State, 278 Mont. 307, 311, 924 P.2d 268, 270 (1996)).
Indeed, we have held that where a measure is facially defective, placing it on the ballot does
nothing to protect voters’ rights and instead “creates a sham out of the voting process by
conveying the false appearance that a vote on the measure counts for something, when in fact
the measure is invalid regardless of how the electors vote.” Reichert, ¶ 59.
¶29 First and foremost, the I-166 exercise (the complete text of which is attached at the
end of this Dissent) does not propose the enactment of any law. Indeed, as the Attorney
General readily and repeatedly concedes, the I-166 exercise is framed in terms of stating a
“policy” and “philosophy” and then “direct[ing]” and “charg[ing]” Montana’s elected and
appointed officials with “promot[ing]” and “carrying out” that policy and philosophy. See
16
I-166, §§ 3, 4. The policy and philosophy dictate that “corporations are not human beings
with constitutional rights,” that corporations should be prohibited “from making
contributions to or expenditures on the campaigns of candidates or ballot issues,” and that
there should be “a level playing field in election spending.” I-166, § 3. As already noted,
these propositions contradict well-settled federal constitutional law.3 Furthermore, the
initiative charges Montana’s congressional delegation with “proposing a joint resolution
offering an amendment” to the federal Constitution which establishes that corporations are
not human beings with constitutional rights, which establishes that corporate campaign
contributions and expenditures may be prohibited, and which achieves “a level playing field
in election spending.” In sum, the I-166 exercise does not enact new law or repeal existing
law—nor does it even purport to do so. Rather, it simply charges elected and appointed
officials at the state level with violating the law already established by the Supreme Court
and our congressional delegation at the federal level with pursuing a course of conduct that
is not only misguided, but also virtually certain to fail. The I-166 exercise, even if adopted,
cannot change federal law; it does not change state law; and it does not change the law of
any sister state. Rather, the I-166 exercise simply does into the wind what most Montana
children learn to avoid early in life.
3
With respect to the “level playing field” policy, the Supreme Court has rejected the
notion “ ‘that government may restrict the speech of some elements of our society in order to
enhance the relative voice of others.’ ” Citizens United, 130 S. Ct. at 904 (quoting Buckley,
424 U.S. at 48-49, 96 S. Ct. at 649).
17
¶30 More to the point, Article III, Section 4 of the Montana Constitution reserves to the
people of this State the right to “enact laws by initiative on all matters except appropriations
of money and local or special laws.” A “law” is “a solemn expression of the will of the
supreme power of the state.” Section 1-1-101, MCA. “The will of the supreme power is
expressed by: (1) the constitution; (2) statutes.” Section 1-1-102, MCA. Whereas a
“policy” represents “[t]he general principles by which a government is guided in its
management of public affairs,” the “law” represents the actual “regime that orders human
activities and relations through systematic application of the force of politically organized
society.” Black’s Law Dictionary 1178 (Bryan A. Garner ed., 7th ed., West 1999). “The
organic law is the constitution of government and is altogether written. Other written laws
are denominated statutes. The written law of this state is therefore contained in its
constitution and statutes and in the constitution and statutes of the United States.” Section
1-1-105, MCA. Statutes which create and affect corporations are public statutes. Section
1-1-106, MCA. The Code also recognizes the decisions of this country’s courts as law.
Sections 1-1-107, -108, -109, MCA.
¶31 As noted already, Article III, Section 4 reserves to the people the right to enact laws
by citizen initiative. Clearly, Montana’s blackletter law does not define “law” as including
“policies” and “philosophies” that one party or special interest group may wish the
government and elected officials to pursue. Article III, Section 4 does not empower the
people to pass policies or enact philosophies, or to direct governmental officials to pursue
such policies or philosophies—setting aside the fact that, here, such direction is to actually
18
violate established federal constitutional law and precedent. The power to enact laws by the
initiative process does not include the power to enact what amounts to a legislative
resolution. Harper, 213 Mont. at 429, 691 P.2d at 828-29. And, charitably speaking, that is
all the I-166 exercise is—a feel-good expression of contempt directed against the federal
government and federal constitutional law. Even if enacted, the I-166 exercise would not be
a “law.”
¶32 The Attorney General offers the meager assertion that I-166 could be read as enacting
“a statutory policy statement, not merely a resolution,” and that “[s]tatutory policy
statements occur throughout the Code.” The Attorney General cites § 2-15-142, MCA, as an
example.4 Section 2-15-142, MCA, however, was not enacted by citizen initiative. It was
enacted by the Legislature itself. See Laws of Montana, 2003, ch. 568, § 2. In making this
argument, the Attorney General fails to recognize that the issue here is not whether the
Legislature has the power to enact “statutory policy statements.” It is whether citizens have
that power in the form of citizen initiatives. Plainly, they do not. Mont. Const. art. III, § 4.
Their power is limited to enacting “laws,” not “statutory policy statements.”
¶33 Even if we assume, for the sake of argument, that the I-166 exercise constitutes the
proposal of a “law,” there is another fundamental problem that condemns the initiative to
obvious facial unconstitutionality. It is a firmly established principle of law that a statute or
“law” is void on its face if it fails to give a person of ordinary intelligence fair notice that his
19
contemplated conduct is forbidden. No person should be required to speculate as to whether
his contemplated course of action may be subject to criminal penalties. State v. Taylor, 2000
MT 202, ¶ 29, 300 Mont. 499, 5 P.3d 1019.
¶34 Here, the problem is manifest. First, if an elected or appointed public official violates
I-166 as “law,” then that person can be prosecuted for a misdemeanor crime. See I-166, § 8
(stating that the initiative is “intended to be codified as an integral part of Title 13 and the
provisions of Title 13 apply to” the initiative); § 13-35-103, MCA (stating that “[a] person
who knowingly violates a provision of the election laws of this state for which no other
penalty is specified is guilty of a misdemeanor”). Second, and more problematic, it is not
reasonably clear what I-166, as “law,” would require.
¶35 Under § 3(1) of the initiative, in order to effectuate the policy and philosophy that
corporations (a) are not human beings (no court has ever said they were), (b) are not entitled
to constitutional rights (the Supreme Court has said they are), and (c) should not be permitted
to make campaign contributions or expenditures for or against candidates and ballot issues
(the Supreme Court has said they may), elected and appointed officials in Montana are
“charged to promote actions that accomplish a level playing field in election spending.”
Some “general” directives then follow at § 3(2) which are in the nature of policy
statements—and nearly all of which, again, have been rejected by the Supreme Court. For
example, these policy statements include that money is not speech; that constitutional rights
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This statute directs state agencies to consider certain guiding principles when
formulating or implementing policies or administrative rules that have direct tribal
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belong to human beings, not corporations; that corporate use of wealth is corrosive and
distorting; that there should be a level playing field in campaign spending; and that there
should be limits on “large” contributions to or expenditures for the benefit of any campaign
by any source. If the I-166 exercise were to be construed as an actual “law,” how would any
public official of ordinary intelligence have fair notice that his or her contemplated act (or
failure to act) is unlawful, so that he or she could avoid violating the law and being subjected
to possible criminal sanctions? The public official’s task in this regard is virtually
impossible. At the outset, in order to comply with the supposed I-166 “law,” the public
official will have to violate extant federal law, as already discussed. Then, the public official
will have to make sense of I-166’s amorphous and vague terms, phrases, and concepts—
including “level playing field,” “large” contributions and expenditures, and “promoting”
actions that accomplish the stated policies. I-166 provides no guidelines, no definitions, and
no parameters. What, for example, is too “large” a campaign contribution? $300? $10,000?
$5,000,000? Maybe $300 is too large in Teton County, but $5,000,000 is not too large in
Yellowstone County. Who knows? And, what, exactly, is the official supposed to do about
a too “large” campaign contribution? How, exactly, is the public official to “level the
playing field” and reduce the “corrosive and distorting” effects of “immense” aggregations
of corporate wealth?
¶36 Assuming I-166 to be a “law,” a public official who fails to correctly interpret these
terms may be subject to prosecution for the offense of failing to “promote” I-166’s policy.
implications. Section 2-15-142, MCA.
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Likewise, if a member of Montana’s congressional delegation does not encourage and
promote the futile constitutional amendment heretofore discussed, the offending senator or
representative may be charged with a misdemeanor. But is anyone—the Attorney General
included—really naïve enough to believe this could happen? Good grief! It is ludicrous in
the extreme to argue that I-166, as “law,” would give any public official fair notice of what
he or she is supposed to do or not do. While I-166, as “law,” may direct people how to
think—a dubious proposition in its own right—it gives them no fair notice at all of how to
act in a fashion so as to avoid the criminal penalties that may result from its violation. Thus,
even if the I-166 exercise is deemed a proposed “law” for purposes of saving it under Article
III, Section 4, the initiative is facially, unalterably, and inseverably void for constitutional
vagueness.
¶37 I understand the frustration with the Supreme Court’s decision in Citizens United. I
understand the frustration with the ability of corporate America to control elections and
legislative and executive branches of state and federal government. And I understand the
frustration with the certain knowledge that soon corporate America will be in control of the
judicial branch of government as well. However, shooting popcorn at a brick wall will
accomplish nothing, even if it makes one feel good. Those who aim to change the situation
are going to have to get a different gun.
¶38 In sum, this Court reserves the right to declare patently defective measures invalid.
See Reichert, ¶ 59, and cases cited therein. Indeed, we have very recently held that placing a
facially defective measure on the ballot does nothing to protect voters’ rights and instead
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creates a sham out of the voting process by conveying the false appearance that a vote on the
measure counts for something, when in fact the measure is invalid regardless of how the
electors vote. Reichert, ¶ 59. That is the case here. The I-166 exercise is a sham; it is
nothing but an exercise in feel-good contempt of the federal government and federal law.
The proposed initiative does not seek to enact “law.” It seeks, rather, to enact unenforceable
political policies and philosophies. Therefore, the I-166 exercise cannot constitutionally be
proposed as a ballot measure under Article III, Section 4 of Montana’s Constitution. And
even if, assuming for the sake argument, the I-166 exercise is deemed to be a proposed
“law,” the “law” is facially, unalterably, and inseverably void for constitutional vagueness.
V. The Court’s Approach
¶39 As a final matter, I note my disagreement with the Court’s conclusion that we cannot
grant relief.
¶40 The Court concludes that the Attorney General’s “legal sufficiency” determination is
limited under § 13-27-312(7), MCA, to a non-substantive review of the ballot language.
Opinion, ¶ 6. To the contrary, the plain language of this statute defines “legal sufficiency” to
mean “that the petition complies with statutory and constitutional requirements governing
submission of the proposed issue to the electors.” As discussed above, the problem here is
that the citizen-initiative process is available under Article III, Section 4 of the Montana
Constitution only to enact “laws.” Mont. Const. art. III, § 4(1) (“The people may enact laws
by initiative on all matters except appropriations of money and local or special laws.”
(emphasis added)). This constitutional process is not available to have the people enact
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“policies” and philosophies and to charge public officials with encouraging misguided,
impossible, and (at least under federal law) patently illegal acts. All that the I-166 exercise
purports to do is (1) set forth a policy and (2) direct elected and appointed officials to
promote that policy. See I-166, §§ 3, 4. Accordingly, the I-166 exercise on its face does not
“compl[y] with . . . constitutional requirements governing submission of the proposed issue
to the electors,” and the Attorney General should have rejected the measure as being facially
unconstitutional under § 13-27-312(7), MCA.
¶41 Presumably, under the Court’s approach, if some group got sufficient signatures to put
on the ballot an initiative which adopted a policy and philosophy that, contrary to Loving v.
Va., 388 U.S. 1, 87 S. Ct. 1817 (1967), Caucasians should not inter-marry with Native
Americans or African Americans and which charged state and local officials with working
diligently to carry out that policy, then, so long as the Attorney General found no fault with
the ballot language, this patently and facially unconstitutional measure would have to be put
to the vote. I cannot agree with such a cabined and absurd interpretation of § 13-27-312(7),
MCA.
VI. Conclusion
¶42 Based on the foregoing, I would grant the Petitioners’ petition and order the Secretary
of State not to place I-166 on the 2012 general election ballot or, if the ballots have already
been printed with the measure, not to count the votes.
¶43 I dissent.
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/S/ JAMES C. NELSON
[Appendix to Dissent on the following 4 pages.]
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