Cole v. State Ex Rel. Brown

Before this Court are the following documents, all filed in the office of the Clerk of
this Court on December 18,200l:
I. Original Complaint for Declaratory Judgment and Injunctive Relief
(hereafter referred to as the Complaint);
2. Plaintiffs’ Motion for Original Jurisdiction and Expedited Briefing
Schedule and Hearing and Memorandum in Support Thereof (hereafter
referred to as the Motion); and
3. Joint Stipulation of the Parties to this Court’s Assuming Original
Jurisdiction and Setting an Expedited Briefing Schedule and Hearing on
Plaintiffs’ Original Complaint (hereafter referred to as the Stipulation).
The parties jointly request that this Court enter an order approving the Stipulation and
assuming original jurisdiction of the Complaint.
With the passage of Constitutional Initiative 64 (Cl-64). at the November 3, 1992
election, a new Section 8 was added to Article IV of the Montana Constitution which, in the
vcrnm~lar, imposed “twii limits” on tlic olliccs ol‘govcl-nor, lieutenant governor. sccrctary
of state, state auditor, attorney general, supcrintcndcnt of public instruction, state
representative, state senator, U.S. representative and U.S. senator.
The Complaint sets out an action for declaratory and injunctive relief challenging the
validity of the November 3, 1992 election wherein CI-64 was enacted; requesting that CL64
be declared null and void; and requesting that the Secretary of State be directed to decertify
the election results as to CI-64 and be permanently enjoined from complying with the
requirements of CI-64.
This Court’s jurisdiction over this cause derives from Article VII, Section 2 of the
Montana Constitution and from $5 3-2-201 and 202, MCA. That said, this Court will
exercise its discretion to assert original jurisdiction in a declaratory judgment action “where
legal questions of an emergency nature are presented and ordinary legal procedures will not
afford timely or adequate relief.” Grossmn v. Department ofNatural Resotmxs (1984), 209
Mont 427> 433,682 P.2d 13 19, 1322. Moreover, this Court will consider three factors when
accepting original jurisdiction: “( 1) that constitutional issues of major statewide importance
are involved; (2) that the case involves pure legal questions of statutory and constitutional
construction; and (3) that urgency and emergency factors exist making the normal appeal
process inadequate.” State e.y w/. Gould v. Coo/ley (1992), 253 Mont. 90,92, 83 1 P.2d 593,
594 (citing State ex rel. Gree& L’. Water Cozrrf (I 984), 2 14 Mont. 143, 69 I P.2d 833; Bl//te-
Sih’cl- Bon, Locd Gov’l v. Strrte (1989). 235 Mont. 398, 401-02, 768 P.2d 327, 329). In the
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cast a t bar \vc conclude rl1at thcsc cl.itwia ;1[‘e rllCl.
First, the constitutional issues raised-that Cl-64 as proposed and enacted violates
Article XIV, Section I I and Article V, Section I l(3) of the Montana Constitution--are
paramount concerns of major statewide importance arguably affecting rights of suffrage and
implicating the election process and the ability to run for and to be elected to specified public
offices.
Second, the issues raised involve purely legal questions of constitutional interpretation
and construction. We are not apprised of any disputed factual matters by any of the parties.
Third, urgency and emergency factors exist which make the normal appeal process
inadequate. Specifically, the period during which candidates must file their applications for
office for the next general election opens on January 2 1,2002, and closes on March 2 1,2002.
Should this Court not exercise original jurisdiction over this cause, it is certain that the merits
of Plaintiffs’ claims could not be heard and resolved by a District Court and then appealed
and decided by this Court before the closing of the application deadline. Thus, urgency and
judicial economy militates in favor of this Court accepting original jurisdiction of this cause.
See State e,x vel. Gould, 253 Mont. at 92-93, 83 1 P.2d at 594.
Finally, and while not determinative of our decision herein, we note that the parties
have stipulated to and request that this Court assert original jurisdiction in this matter.
Accordingly, for the reasons stated above and good cause shown:
IT IS ORDERED that the Motion is GRANTED, except to the extent modified herein.
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This Court hcrcby accepts original jurisdiction ol‘this cause. reserving. howcvcr. the issue
of the tiniclincss of this chnllengc.
IT IS FURTHER ORDERED that the following briefing schedule is adopted:
I. Plaintiffs’ opening brief shall be prepared, filed and served on counsel
of record no later than Friday, January 4,2002;
2. Defendants’ response brief shall be prepared, tiled and served on
counsel of record no later than Friday, January 25, 2002;
3. Plaintiffs’ reply brief shall be prepared, filed and served on counsel of
record no later than Friday, February 1,2002;
4. Briefs of any anziczls ctrriae in support of the Plaintiffs’ position shall
be prepared, filed and served on counsel of record no later than Friday, January
4,2002;
5. Briefs of any arlzicus ctlriae in support of the Defendants’ position shall
be prepared, tiled and served on counsel of record no later than Friday, January
25,2002; and
6. Plaintiffs’ reply brief shall address arguments of Defendants and
opposing amici; Defendants’ response brief shall address arguments of
Plaintiffs and opposing anzici.
IT IS FURTHER ORDERED that any motions for intervention and supporting briefs
in this cause shall be prepared, sent to the Clerk of this Court and served on all counsel of
record no later than Friday, January 11,2002. Any intervention motion shall be accompanied
by an intervention brief (not to exceed four pages of text) setting forth the legal basis for
intervention and, separately, a merits brief addressing the merits of Plaintiffs’ and Defendants’
positions. The Clerk of this Court will file the motion for intervention and supporting
intervention brief, but will not tile the merits brief without further order of this Court. Ifthis
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COUI-t g r a n t s the motiw fb~- intcrvcntion. the C‘lcrh w i l l then lilt the met-its brief. I’lairltilf~k
and Defendants shall each have until Friday, February I, 2002. to file one supplemental brief
addressing any and all merits briefs authorized by this Court to be filed by inter\.enors.
IT IS FURTHER ORDERED that briefs of anrici, if any, and merits briefs of
intervenors, if any, shall, to the extent possible, join arguments and positions of the parties
without rearguing those. New or different arguments than those of the parties may be fully
stated and argued within the page and word constraints of the Montana Rules of Appellate
Procedure. Motions for over-length briefs or extensions of the tiling times set forth herein
will not be entertained.
IT IS FURTHER ORDERED that if this cause is set for oral argument, the date, time
and specifics will be set by further order of this Court.
IT IS FURTHER ORDERED that the Clerk of this Court shall give notice of this
Order by fax, followed by mail, to counsel of record.
DATED this &?ay of December, 200 1.
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I rcspcctftrlly dissent from the Court’s acccptancc of original jurisdiction or this
matter.
While the Petition alleges that because of “urgency and emergency factors,” this
Court should exercise its extraordinary authority in this matter, the claimed “emergency” is
of the Petitioners’ own making. Both Senator Christaens and Senator Cole are astute public
servants who have been well aware since their last election that the constitutional amendment
embodied in CL64 prohibited them from seeking another term. Yet, they failed to properly
initiate a challenge to the amendment in the district court, waiting until the midnight hour and
crying “emergency” to this Court. If they contend that they previously lacked standing to
challenge the amendment, then they also lack standing now, because the filing period has not
yet opened, and they have not yet attempted to file and been rejected by the Honorable Bob
Brown. The reality is that they failed to adjudicate their claim and assert standing in the
district court. I would require them to comply with the legal process generally applicable to
the citizens of this state.
y++SSL
Justice Terry N. Trieweiler joins in the dissent of Justice Rice.