*1 JIM ELLIOTT, Appellant, Petitioner REVENUE, MONTANA DEPARTMENT OF Respondent Respondent, MONTANA TAXPAYERS’ ASSOCIATION,
Intervenor. No. 05-336. Argument May Heard at Oral 2006. Submitted June Decided October
For David Respondent: General, Attorney Helena. Prezeau, Hughes, Cherche (argued), John Alke
For Intervenor: Kellner, Alke, Sullivan & Helena. Visiting Assistant Griffing, L. Amicus Curiae: Elizabeth
For *2 Law, Professor, of Montana School of Missoula. University the Court. Opinion JUSTICE COTTER delivered (Elliott) state tax requested certain State Senator Jim Elliott ¶1 (Auditor) “C” Auditor for Legislative information from the Auditor, on based doing Montana. corporations business (DOR), Department of Revenue by the State provided information it year information tax 2002 and for compiled requested Elliot access to similar Later, denied the Auditor and to Elliott. DOR filed a Petition to Obtain years. other tax Elliott tax information for Elliott (Petition), Court denied. which the District Public Documents affirm. appeals. We
ISSUE is: appeal The restated issue on ¶2 it denied disclosure Court err when
Did the District tax records? state corporations’ Montana “C” PROCEDURAL BACKGROUND FACTUAL AND Chairman of the 2004, Elliott, capacity in his January Legislative of the and Vice-chairman Taxation Committee Senate corporations “C” with Committee, tax information for requested Audit years for which for all tax $1,000,000.00 in Montana sales or more because he sought the information information. Elliott DOR had the so as to make to be informed legislator needs “responsible a believed of the part public.” on the and accurate decisions responsible him with tax provide Auditor to asked the Initially, Elliott less than paid $150.00 corporations all information about information, Elliott inspecting in 2002. After Montana taxes in terms of corporations information 500 “C” top tax requested MCA.) (See definition corporation “C” Montana sales. on Elliott’s behalf. to the Auditor the information DOR information for containing spreadsheets for Elliott compiled Auditor however, identified were not taxpayers, year Corporate tax spreadsheets. name on corporations of some of the identities then researched Elliott
by matching up the tax information he received for 2002 with financial he on the internet such sources as the U.S. located from Exchange published filings corporate Securities Commission’s reports. financial Elliott disclosed the results of his research to his constituents and other Montana citizens. compelling people Elliott testified that “the reason for the [to records]
state of Montana have access to state tax is that just, equitable policy important. every taxation For dollar that one taxes, person illegally paying avoids ... in the citizens of the state of up Montana make for that in or in increased taxes decreased services.” Subsequently, request Elliott reiterated his for tax records from all years. tax request available DOR refused Elliott’s because he had disclosed to the public corporate previously provided. petitioned the District Court to order disclosure ofthe state 6, 2005, April tax records. On the District Court denied Elliott’s Petition holding evidentiary hearing after an on November arguments February oral on 2005. Elliott appeals.
STANDARD OF REVIEW We review district court’s conclusion of regarding question to determine Bryan is correct. District, 264, 16, ¶
DISCUSSION Did the District Court err when it public denied disclosure of corporations’ Montana “C” state tax records? II, Elliott invokes the provisions of Article Section
9, of the Montana Constitution in support his contention that state corporate tax subject public records are disclosure. Article Section provides:
Right person deprived know. No shall be examine documents or to all public observe deliberations of agencies government subdivisions, bodies or of state and its except in cases in which the demand privacy clearly of individual exceeds the merits of disclosure.
However, prohibits state law the disclosure of tax records by 15-31-511, MCA, DOR Montana corporate taxpayers. Section provides:
Confidentiality in Except tax records. this properjudicial section in accordance with a order or as otherwise law, any in provided by divulge it is unlawful to or make known manner:
(a) forth or any particulars or set the amount of income chapter or required or under this report disclosed in return in the relating to taxation secured any other chapter; administration of this
(b) in or disclosed on return or information any federal department or rule of the report required return or federal this chapter. of revenue under Court, highlights the conflict between to this briefs but dismisses ofArticle Section § that, statutory yield law must “Obviously, state by arguing
the statute However, agree premise. with this cardinal to constitutional law.” We proof beyond a reasonable constitutional absent presumed statutes are Erickson, contrary. County Ravalli doubt omitted). (citation 17¶ challenge-either no constitutional Notably, Elliott has mounted Indeed, 15-31-511, Elliott’s invalidate applied-to facial or as during Court and in briefs to this unequivocally, both counsel stated constitutionality of challenge the that Elliott does not argument, oral tax information. disclosure of statutory prohibition on nullity” light of case law Rather, as “a he views the statute Article interpreting disclosure of which the information the precisely Elliott seeks asked the District MCA. Elliott
directly prohibited corporations with information for “C” order disclosure of Court to sales, the name of the including: $1,000,000.00 more in Montana total sales; property; Montana sales; total Montana corporation; factor; apportionment payroll; total payroll; Montana property; operating net income; income before Montana taxable adjusted taxable liability; and the income; loss; taxable the statute Elliott concedes received. While date the tax return was right to the constitutional disclosure, maintains that he prohibits such restrictions, and that we statutory these “trumps” know essence the statute unconstitutional. declaring per so rule without se to enact a power its constitutional Legislature has exercised role of the V, 1, Montana Constitution. statute. are to ascertain established. We a statute is well construing courts *4 has been not to insert what substance, we are but a terms statute’s 1-2-101, inserted. Section has been omitted or omit what statute duly enacted disregard simply not we it is unconstitutional. conclude that unless we first stated, already unconstitutionality As of a statute must be County, 17. In that beyond demonstrated a reasonable doubt. Ravalli unconstitutionality no has been offered-much less demonstration unconstitutional, nor may not declare this statute will proven-here, we sponte. we undertake to do so sua Absent successful statute, it. challenge propriety obligated apply of a we are J., Finley, (Gray, State v. specially concurring). 15-31-511, MCA, challenge Without direct constitutional § confronting, disturbing, prohibition
we have no basis for much less its on disclosure of state tax records. Therefore we conclude we grant cannot the relief Elliott seeks.
CONCLUSION foregoing reason, For the we affirm. GRAY, LEAPHART, CHIEF JUSTICE JUSTICES RICE and BUYSKE, sitting NELSON DISTRICT JUDGE for JUSTICE MORRIS concur.
JUSTICE WARNER concurs. I concur with the opinion. result of Court’s I write to address necessary 15-31-511, MCA, reason Elliott claims it is not to find § unconstitutional in order to secure the tax information he prays for. argues Senator Elliott the “or provided by as otherwise law” 15-31-511(1), MCA, exception renders the statute ineffective because “law” includes Article Section 9 of the Montana Constitution.1 15-31-511(1), MCA, provides:
Except in this section in accordance a proper with judicial law, order or as provided by otherwise is unlawful divulge any manner[.] or make known in added.) (Emphasis points out that the “or as otherwise exception encompasses law” the Montana Right provision, Constitution’s to Know Section which is set forth at 10 of the Opinion. Although Court’s what constitute “documents ... of all not public bodies” is defined Article interpreted phrase encompass this Court has “documents generated body or maintained a which are somehow related body.” Becky to the function and duties of that v. Butte-Silver Bow Sch. argument clearly opening This articulated in Elliot’s to the District brief Court, appellate argument as well as his briefs and oral before this Court.
200
(1995). Thus,
193, 197
Article
1, 274
131, 138, 906 P.2d
Mont.
Dist. No.
Becky,
documents, according to
is an individual’s
that a
this Court has held
goes
point
on to
out that
privacy.
to
Elliott
the
right
privacy
to
under
has no individual
for-profit corporation
Pub. Serv.
Falls Tribune v. Mont.
Constitution. Great
876,
38,
39,
39.
Commn.,
359,
39,
Mont.
82 P.3d
¶
319
¶
loop-hole
in the law which
adroitly argues that there is
for-profit corporation’s
examine a
public
that the
be able to
requires
II,
which
Article
is
This is because
tax records.
to
are available
for-profit corporations
the tax records of
that
provides
MCA,
15-31-511(1),
to
applies
exception
and thus the
public,
the
confidentiality.
abrogate
requirement
the statute’s
MCA,
exception
the
interpretation,
Under this
dispute
counsel did not
ineffective. Elliott’s
render the statute
would
exception
the
acknowledged
that
argument,
at oral
this conclusion
however,
out,
that the
He pointed
the statute.
essentially swallows
.2
in Great Falls Tribune
until this Court’s decision
was effective
statute
15-31-511(1), MCA,
exception
the
to §
I
not conclude that
do
gives effect
interpretation
An
that
without effect.
renders the statute
makes a statute void or
to one that
always preferred
is
to
statute
Rural Fire Dist.
surplusage. Missoula
treats a statute as mere
(1986).
1170, 1173
178, 182,
Co.,
720 P.2d
222 Mont.
Missoula
a for-
under
Falls Tribune
assuming, arguendo, that
Great
Even
the
weighed against
has no
interest
be
corporation
privacy
profit
right
know,
does not end there.
analysis
the
right
public’s
may circumscribe
only
provision
not the
is
privacy
Section 9.
by
right
to know
376,
not absolute.
2
Reg.,
Telegraph
Dept.
194 Mont.
Co. v.
the framers
Pub. Serv.
Tel. and
Mt. States
surely
(assuming
Section 9 and 10
181, 188
of Article
P.2d
rights
privacy as do
to have the same constitutional
non-human entities
intended
human
Tribune,
individuals).
Falls
overruled
Great
Mt. States was
weighty
compelling.
against
competes
interest
which
added).
Smith,
Smith,
(emphasis
of the State’s to its to enforce this authority, which is Article VIII of the Montana Constitution, sufficiently “weighty compelling” may is so or that it in appropriate right Lacy, circumstances circumscribe the to know. See (because authority 239 at judiciary Mont. P.2d at 189 the has Constitution, duty over the it to interpretation of the is the courts’ what, the in competing balance interests issue order to determine any, if given party requesting should be to a 9). from the government under Article Supreme long recognized The U.S. Court has the of importance power the to tax: taxing people the of the and their power
It is admitted that very government, is essential existence of property, it is legitimately objects exercised on the which may be the government to the utmost extent to which applicable, carry it. choose to (1819). Article VIII of the Maryland,
McCulloch v. 17 U.S. At the gives Legislature power the the to tax. Montana Constitution Convention, and Finance Constitutional the Revenue 1972 Montana in suggest putting power such a the so far as to Committee went unnecessary, power “the to tax is an was because Constitution the state, already possessed by state power power inherent of the Convention, any grant authority.” of Constitutional without 18,1972, February p. 579. Proposal, and Finance Committee Revenue course, VIII, Rygg stated: “Of discussing Delegate governmental important power taxation is the most power of power it is that this never be body possesses, equally important Constitutional bargained away.” or lightly treated 3,1972, Convention, Transcript, p. March Verbatim good, and for the common requires provide The State revenue necessary to raise this revenue. Without taxation is of course know, the tax, right government protect could not power of the rights of the fundamental privacy, individual enforcing its Therefore, I that the State’s interest people. conclude may, that it sufficiently “weighty compelling” authority to tax is circumstances, to know. circumscribe appropriate limited and component a critical The record establishes United States of Montana that current tax structure (I.R.S.) information contained provide Internal Service Revenue Department the Montana tax returns to United States *7 such information. system simply would not work without Revenue. disclosing information the I.R.S. from 6103(p)(8) prohibits 26 U.S.C. § adopts that State State unless a federal tax return about 15-31-511, if this Court confidentiality provision such as § effect, that the of no it follows 15-31-511 is were to conclude DOR, and the current information stop providing I.R.S. would fail. would for-profit corporations taxes on system levying not have the Montana does establishes The record also effectively compile system a tax which could to establish resources taxes from levy and collect necessary process the State, in this without that do business many for-profit corporations by the I.R.S. gathered circumstance, limited confidentiality conclude that this which flow from Article VIII of the Constitution, sufficiently weighty compelling are in Article public’s right circumscribe the judgment It for this reason that I vote to affirm the District Court.