Montana Consumer Finance Ass'n v. State Ex Rel. Bullock

237 CONSUMER MONTANA ASSOCIATION, FINANCE Petitioner, v. through by and OF MONTANA,

STATE capacity as the BULLOCK, his STEVE McCULLOCH, and LINDA General, Secretary capacity of State. as in her Respondent. Individually, HARRINGTON, J.

BERNARD Coalition for Consumer Treasurer and as Against Committee, I-164, Political Choice

Petitioner, v. through by and OF MONTANA,

STATE capacity as the BULLOCK, his STEVE McCULLOCH, and LINDA General, Secretary capacity of State, in her Respondent. & OP 10-0366 OP 10-0371.

No. August 17, 2010. Ordered MT 185. 357 Mont. 237. P.3d 765. ORDER OPINION AND capacity individual Harrington Petitioner Bernard J. his 1-164 representative Against of the Coalition for Consumer Choice Finance Association (Harrington) and Petitioner Montana Consumer “Petitioners”) (MCFA) (Collectively original invoke Court’s jurisdiction Attorney legal sufficiency challenge General’s (1-164). and for Initiative 164 We determination ballot statements No. following review the issue: Attorney with comply Do General’s ballot and ¶2 fiscal

§13-27-312, MCA? FACTUAL PROCEDURAL BACKGROUND AND cap 1-164 seeks to interest rates for certain loans at annual percent. rate of 36 the ballot statements interest Petitioners Attorney sufficiency for 1-164under legal and determination 13-27-316, 13-27-316, MCA, constitutes the “exclusive Section remedy” challenges. for affect interest rates on such 1-164 would proposes finding certain lenders. Section 1 a that some lenders 2 charging annually. Montanans more than 400% interest Section usury provisions and repeal exemptions would on interest rate limits lenders, lenders, title deposit for deferred and consumer loan licensees. provide penalties Section 3 would for for violation of the initiative 240 caps

under the Act. 4 charge Consumer Protection Section finance annually. caps on retail installment at contracts 36% Section 5 pawnbrokers. interest for rates Section 6 limits fees for deferred deposit annually provides attorneys loans 36%to for allocation of caps the rate fees. Section 7 interest at 36% for title loans. Section loans,” a statutory limits interest rates 36%for “consumer term that deposit, title, mortgage loans, excludes deferred backed and loans “regulated lenders.” Section that provides amendments would on January 1, take effect 2011. Attorney General proponents’ proposed found specify type subject

statement did not loans the limits contained “potentially argumentative misleading detail about legislation federal concerning military personnel and their families.” The Attorney General determined that the comply statements did not and redrafted the ballot statement. The requested General a fiscal note from the Budget Director. The fiscal estimated a licensing note reduction in $189,900 per year, totaling $526,800 examination revenue of over the year three analysis period, impact and no General Fund. The drafted the fiscal statement in accordance with finding impact that there would be a if 1-164 fiscal were to become law. General’s amended ballot statement as reads follows: of Purpose

Statement law, Under Montana deposit (payday) may deferred lenders charge loan, equaling fees one-fourth which is the same an annual interest rate percent day for 31 or 650 loan percent 14-day for Title loan. lenders charge interest equaling loan, one-fourth of the which is the same as an annual interest rate of 300 percent day a 30 1-164 loan. reduces the interest, fees, and charges payday, title, retail may charge installment lenders to an annual of 36 interest rate percent. prohibits It structuring businesses from other to avoid transactions the rate limit.

Fiscal Statement 1-164 reduces licenses and fee examination revenue paid the State may because certain lenders not renew their licenses. reducing interest, fees, [] FOR charges annual payday, title, charge and retail installment may lenders on to 36 loans percent. interest, fees, charges reducing the annual

[] AGAINST loans title, charge on and retail installment lenders payday, percent. 13-27- Secretary of certified in accordance with § State 1-164 ¶6 13-27-316, 308, MCA, July filed suit under § 2010. Petitioners 13-27-316(5), MCA, original endows this Court with MCA. Section challenges to hear to ballot statements and constitutes jurisdiction challenges. and MCFA remedy” Harrington for Both “exclusive such failure to with comply the ballot statements for challenged 13-27-312, Harrington argued MCA. requirements substantive § failed a true “express implication that the statements easily plain, of the measure in explanation proposed and impartial challenged the statement language.” Harrington also fiscal understood I- for 5-4-205, MCFA claims that the ballot statement under MCA. § because 164 does not meet loan in the mention “consumer licensees” specifically it fails to omission, that, purpose. MCFA due to this statement of contends impartial explanation does not a “true and statement constitute argues MCA. that ballot issue.” Section MCFA precluded casting thus from an informed voters would be misled and Harrington adopt that this Court an alternative requested ballot. Harrington provided. requested MCFA this statement determination legal sufficiency Court overturn the General’s and, alternatively, strike the term “consumer loan licensee” that we Nearly filing from weeks after his initial the text of initiative. two Harrington a motion for referral filed with Court petition, 3-2-202, record development district court for factual under § MCA. VENUE

JURISDICTION AND possesses original jurisdiction This Court to review ballot legal statements measures and the initiative sufficiency 13-27-316, in actions brought pursuant determination to § 13-27-316, MCA, remedy constitutes the sole for such challenges.

DISCUSSION comply Do the General’s ballot and fiscal §13-27-312, MCA? Harrington’s We must address as a threshold matter motion for Harrington pursuant referral to the district court 242 petition,

did not raise issues of fact in his initial and no of fact issues deciding Harrington’s exist to this Court from More preclude petition. 3-2-202, MCA, importantly, Harrington’s does not apply petition. to § 3-2-202(3)(b),MCA, Section that the to a requires parties proceeding (3)(a) “certify under Subsection must the absence of factual issues or stipulate any necessary” file to and factual record to this Court’s the challenge. provision applies petitioner’s consideration of That to the for the Attorney ballot statements initiated measures and General’s 3-2-202(3)(a), for statements referred measures. ballot Section MCA. Harrington’s challenges petition Attorney General’s statement for an initiated measure and therefore does into not fall categories by 3-2~202(a), specified Harrington’s either MCA. § petition likewise does not within come the ambit the statute as a 13-12-316, Attorney under legal General’s sufficiency legal determination. The sufficiency applies determination only statutory to “the and constitutional governing proposed submission ofthe issue electors.” “Legal Sufficiency” not encompass does of the “consideration legality substantive of the if approved issue the voters.” Id. Harrington’s petition legal raises substantive arguments concerning legality of the ballot underlying statements and initiative. deny Harrington’s We therefore motion for referral and - proceed analyze petitioners’ both claims under §§ 13-27-312 316, MCA. “express impartial Ballot statements must the true

explanation easily ballot issue in plain, understood language arguments not be or so written as create prejudice against for or the issue.” Section MCA. We have refused overturn Attorney General’s version of a ballot statement, provided that statement meets the requirements. Right State, MT 192, 10, 333 Citizens Recall v. 2006 ¶ 153, Mont. practice 142 P.3d 764. This reflects the rule followed jurisdictions other “do not literary courts sit as some kind of (S.D. 2004). 495, editorial board.” Shulte v. 687 Long, N.W.2d Courts thus will not a summary simply they “invalidate because Miller, 273, believe better one could be Burgess written.” v. 654 P.2d (Alaska 1982). 276, n. 7 General’s ballot statement meets

requirements of the long employs statute so as it “ordinary plain language, submitted explains general purpose of the issues language that is true and not impartial, argumentative [is] or issue.” Over against Stop either prejudice create for likely State, 178, 12, Mont. 139 P.3d 2006 MT Spending ¶ Mont. v. solely ballot statements review the 788. We Recall, 13. The Right Citizens compliance right grant “the to the ballot petitioners statute does choosing.” their Id. of a application that “the General determined straightforward loans is more interest rate to consumer

36% annual received, and, salient than the core on the comments less public based title, process producing installment issues.” The payday, retail impartial a “true and statement that constitutes 100 word degree discretion entrusted explanation” ofthe measure “involves a Attorney Legislature to the that we will not overturn the Recall, 18. noncompliance Right absent with the Citizens ¶ statute.” acknowledge We the 100 word limit on statements of that purpose inevitably provisions lead to the omission of some that will Recall, A Right Petitioners would like to include. Citizens 18. ¶ every cannot included. description part of of the measure be complete Mont., Stop Spending Over 17. Attorney argue that the General’s statements of Petitioners

purpose implication impartial and do not constitute a “true and identify explanation” they the measure would do because what lenders,” lenders,” “retail specifically deposit “deferred “title and lenders,” loan 13-27- installment but not “consumer licensees.” Section 312(4), remedy by striking fault the requests MCA.MCFA that we this licensees” of the measure. Section body term “consumer loan from MCA, 13-27-316, authority modify give does not this Court the however, “if provide, text The does that of ballot initiative. statute that statements do not meet court decides 13-27-312, certify requirements may secretary ... of state determines requirements that will meet the of 13- statement the court 27-312, 13-27-316(3)(c)(ii), MCA.” Section MCA. We determine adding the term “consumer loan licensees” to therefore making minor and and other implication stylistic remedy changes and will be most effective additions complains. the omission ofwhich MCFA amended ballot statement shall read as follows: Purpose

Statement law, may deposit (payday) Under Montana deferred lenders which, loan, annual charge fees one-fourth of as an equaling 650 Title range percent percent. rate could from 300 interest may similar 1-164 charge lenders interest rates. reduces interest, fees, lenders, charges payday lenders, title lenders, may retail installment consumer loan licensees to an charge percent. prohibits annual interest rate It structuring businesses from other transactions to avoid rate junk limit. It also revises statutes applicable pawn brokers and dealers.

Fiscal Statement 1-164 reduces the licenses and paid examination fee revenue may because State certain lenders not renew their licenses. interest, reducing fees, [] FOR annual charges payday, title, and retail installment lenders consumer loan licensees may charge on to 36 percent. loans fees, reducing interest, charges [] AGAINST annual title, payday, and retail installment lenders and loan consumer charge percent. licensees loans Harrington next claims that fiscal statement does not comply

and that the fiscal argumentative statement is and creates prejudice. requires statute that the Attorney prepare General shall a fiscal statement if the fiscal note a fiscal impact. indicates Section 13-27- 312(3), MCA. The statement must used on petition and ballot. Id. stipulate The statute does not what information must be included the fiscal statement. The General acted within his formulating discretion in the fiscal statement at issue here. The accurately General’s fiscal statement provides that 1-164will reduce the license and fee paid examination revenue to the state may “because certain lenders not their renew licenses.” Harrington Attorney ¶15 claims also that the General failed to formulate the fiscal note fiscal statement in accordance with the statutory provisions because the Budget Director failed to consult with the Department Attorney of Revenue. The General must order a fiscal note that estimates the effect on if proposed revenue will initiative revenue, affect the State’s expenditures, liability. or fiscal The Id. estimate, fiscal must possible, note where the dollar amount of the costs, increase or in expenditures, decrease revenue or and long term 5-4-205, financial effects. Section The fiscal note as an serves objective analysis of the financial impacts legislation and express opinion comment or upon an the merits of the proposed legislation. Attorney Id. The General must prepare fiscal statement if impact the fiscal note that a indicates fiscal will occur as a result of must Attorney fiscal statement legislation. The General’s the if the issue petition placed and on the included on 13-27-312(3),MCA. Section ballot. that the Harrington’s argument appears thrust to be The of the ballot agency by an “affected Department of Revenue constitutes Budget by have consulted issue,” and therefore should been Budget MCA. The Director pursuant Director § Banking Department Finance in the with Division of consulted note with the complies The fiscal Administration. Harrington requires nothing more. and the statute § language as to the exact amount of revenue requests that we include the state processed lost loans in estimated to be and the volume such statutory requirements This falls outside the year. each information Attorney failed fact that the General under these circumstances. The prevent in the fiscal statement “does not include this information casting Right ballot.’” Citizens intelligent voter from ‘an informed Recall, 18. ¶ similarly as to arguments prejudice Petitioners’ advocacy-argument-for Ballot must unavailing. statements “eschew Id., (citing and Acct. against proposal’s adoption.” or Fairness 1994)). (Ariz. Greene, fail in v. 886 P.2d 1338 Petitioners Ins. Reform point provisions implication in either statement of specific statement that violate this requirement. fiscal unnecessarily complicated matters has Resolution these been by language of the revised statutes at issue. intent of 13-27- - - 316, MCA, original provide proceeding is to via this Court remedy” for challenges “sole to ballot statements or the opinion legal sufficiency. statute’s confused internally however, threatens contradictory language, to frustrate expressed appear will of voters who their intent that a measure have 13-27-316, MCA, on the Section that have applies ballot. statements, approved necessity, been Such General. already In 13- signatures. particular, have been circulated for voter 27-316(2), MCA, challenges to contemplates ballot statements by the attorney general.” requires, The statute then “approved however, Court and statements revised certified secretary of state “on and on placed petition must be circulation added). 13-27-316(3)(c)(ii), ballot.” MCA (emphasis official have of approved by Statements have been necessity already process. Compliance the circulation completed (3)(c)(ii) all thus rendered provisions impossible subsection 246 present party a 13- brings

cases such as the when under § 27-316, MCA, placed mere weeks before statement would be inconsistencies, Notwithstanding and other internal we ballot. this apply have to the statute in accordance with the attempted obvious legislative expressed and with consideration will of intent due Montana’s voters. request decline We Petitioners’ to overrule the

¶19 1-164, sufficiency or legal tamper determination for Recall, the text of the initiative Citizens The Right itself. 29. ¶ drafting acted his within considerable discretion in determine, the ballot statements and fiscal statement for 1-164. We however, that MCFA’s omission term complaint to the of the “consumer loan licensees” from the statement We of is valid. to the of certify Secretary therefore State the ballot statement forth set 13, at which we have determined will meet the of 13- 27-312, MCA. day August,

DATED this 17th 2010. LEAPHART, JUSTICES COTTER WHEAT concur. specially JUSTICE MORRIS concurs. in Winston Churchill observed before the speech House “[djemocracy

Commons in government 1947 is the worst form of except for all of those other forms have been tried from time to democracy time.” Direct removes filter voters’ elected representatives and takes the step posing questions audacious directly originally adopted the voters. Montana voters the initiative in process part 1906 as incomplete effort to cast aside the “copper politics collar” that bedeviled Montana for much of the 20th century. carefully Montana’s Constitutional Convention considered

the issue of experiment democracy. whether continue direct delegates in the opted express right include Constitution people to amend the through Constitution or enact laws Const., process. Ill, initiative Mont. art. 4. Sec. This considered delegates decision to the 1972 Constitutional Convention years experience system followed more than 65 with the initiative place. The people’s right to constitutional and initiatives represents unique power.” “a ex important retained State rel. Waltermire, 296, 299, Montana Sch. Bd. v. 224 Mont. 729 P.2d (1986). “emphasizes degree Its inclusion in the Constitution people ofcontrol the desired to retain” over changes Constitution or statutes. Id. issues put before voters process initiative allows citizens address, have chosen elected either representatives

that their from the range These issues likely, have unable to resolve. more been 3, commonly known such Amendment enlightened, as Constitutional controversial, the fund; trust to coal severance tax the initiative, Initiative 64, the limits Amendment term Constitutional farms, 122, Initiative 143, restricting hunting game trophy 125, mines, and from metal Initiative protection quality of water the issue to corporate campaigns; contributions to ballot prohibiting 25, public that added the banal, provision Amendment a Constitutional The system program. the State’s unified investment retirement to to separate on the wisdom of the voters sound process initiative relies proposals. of the For better policy proposals month-type from the fad by worse, right or the amend the or enact laws to Constitution century. has of Montana for more than a people initiative served the hostility process. The Dissent this initiative oozes with toward ¶23 thereof, the or that knowledge, The Dissent editorializes about lack 65, to n.4. The possess respect policy proposal. “most voters” a ¶ gains insights into the minds of Dissent fails inform where its I questions pollsters voters.” these best left “most believe political scientists. knowledge This same lack of confidence in the of the voters

¶24 animates argument. fraud” The Dissent Dissent’s “bait-and-switch suggests that this Court’s minor revisions to the signing to certain a unwittingly ballot statement could lead voters petition support they of an initiative that would not otherwise argument ignores This the fact that the all support. requires law signatures include a purpose, statement of statement, implication, impact required, complete fiscal if and a -312, copy proposed initiative. Sections 13-27-202 represents only summary purpose The statement of initiative. proposed opportunity Interested voters have the to read choose, if petition, they deciding sign entire before whether to petition. legislature empowered the ballot the Court amend accurately statement to reflect more intent. The initiative’s did not of the legislature language authorize Court to amend changed jot initiative The Court of the proposed itself. has not one language safeguard protects against initiative. This proposed any by effort to “mislead the voters’-whether that effort be made General, proponents, any the initiative other that party dupe unwary citizenry. the Dissent assumes seek to suggests The Dissent next that the Court favors a to this party dispute. 67, disregarded Dissent the Court has implies n.5. The Const., by taking its constitutional of office in a case. Mont. oath sides Ill, seriously my responsibility art. Sec. 3. I take to decide cases Ethics, any party. bias or Canons ofJud. Rule 2.2. partiality without my colleagues fact, I am sure that do same. In Court this scrupulously taking dispute. has avoided sides in this The Court simply sought remedy dispute has to this in a manner that provide complies developed legislature. with the scheme legislative ability remedy allows this Court the to revise the accurately more General’s statement of to reflect the intent of 13-27-316(3)(c)(ii), initiative. pursue remedy. choosing The Court has elected to In appropriate guided remedy, Court must be principle “initiative and provisions referendum Constitution should be broadly construed maintain the power maximum the people.” 406, Cooney, 411, 486, (1994); Nicholson v. 265 Mont. 877 P.2d Grossman, 373, 378, County Chouteau v. 172 Mont. 563 P.2d (1977). The in power people requires maximum the that the given opportunity on an people the to vote initiative the when requisite signed number of voters have to petitions qualify a measure the proponents ballot and the of the measure complied have statutory in put place by legislature. scheme the The “statutory Dissent snickers over the use of the term Court’s ¶28 system by scheme” to Legislature describe enacted by which process may qualify address ballot initiative for the by may which party process. a that The snickering infers that statutes enacted to address this process represent some sort game con designed trap unwary of The suggests voters. Dissent proponents of initiatives could avoid traps unwary by these for the getting together early their acts in the process. The Dissent proposes proponents gather that initiative could signatures sufficient months deadline, necessary advance obtain all ofthe clearances from the General, Secretary of State and the defend the matter before Court, then, this if the Court slightly decided revise the ballot statement, signatures collect the thousands of all again over before the statutory proposal gut deadline. This would the people’s constitutional right to fact only initiative. The that Montana face voters a handful of cycle constitutional initiatives at each election difficulty qualifying reflects the a proposed initiative for the ballot. proposal The Dissent’s would even these eliminate handfuls by people. from consideration proposals finally people that the demand blithely The Dissent recommends ¶29 rates if a regulate interest “such representatives that their elected rates. The actually these interest 73. public hullabaloo” exists over they power would not be without of Montana ensured that people by “public a hullabaloo” policy-whether accompanied issues of address they supported by group people-when of concerned simply delegates the 1972 Constitutional adopted system. the initiative The need people of this approach. Convention confirmed wisdom representatives to a law that would rely not on their elected enact II, charged Article Section 3 by restrict interest rates certain lenders. undermine right. I not of our Constitution enshrines that would remedy to power. support I the Court’s revise the accurately 1-164 to more the Initiative’s ballot statement for reflect intent. joins foregoing special

JUSTICE LEAPHART in the concurrence. NELSON, dissenting. JUSTICE I. Overview “ by ‘[T]here are evils which can be strict adherence few afflicted great disregard, law so as that which is done an habitual government, plain requirement

any department ought, and ”1 authority, instrument which derives its which from to be therefore, scrupulously obeyed.’ observed statutorily action that this Court is authorized to take “If, review, attorney general cases is clear. or the present upon petition statements, any court form or supreme revises the ballot signed prior to the revision are void.” Section added). Here, (emphasis MCA the Court has revised “any prior Accordingly, petitions signed ballot statements.

revision are void.” Section MCA. And without valid petitions, may appear issue on the See ballot. 13-27-316(3)(c)(iii), -308, MCA; e.g. see also MCA.That §§ holding required is the we are to reach. some, Regardless that this result seem harsh it is procedures adopted by mandated under the the people

result initiative through representatives. required their elected Court is This obey liberty scrupulously procedures. We are not at observe those 1 Waltermire, 85, 93, 1255, State ex rel. Montana Citizens v. Mont. 738 P.2d 227 (1987) Tooker, 8, 13, 840, ex rel. (quoting State Woods v. 37 842 1260 15 Mont. P. (1894)). them,

to rewrite nor is it them. prerogative disregard our Ahd there legislative is no justifying “obvious intent” what Court has done here. regard, In noted should be that the timetable laid out Legislature majority is not as as the “impossible” Court would have

us believe. That timetable as proceeds follows:

1.A of a proponent proposed ballot issue first submits issue (the State, Secretary of with together draft ballot statements purpose, statement, statement of fiscal statements 13-27-202(1), implication). Secretary Section MCA. The of State a copy of the proposed forwards issue and statements to and, thereafter, Legislative Services Division to the 13-27-202(1),(4), Legislative General. Section MCA.The Services review, 13-27-202(2)(b), given days complete Division is its his given days to complete General review, 13-27-312(8)(a),MCA.

2. approved, Once the proponent petitions circulate for the signature gathering year starting one before the deadline for filing signed petitions county with election 13-27-202(1),(5)(b), Signed officials. Section petitions may MCA. county early months, be submitted to election officials as as nine weeks, but no later than four before the deadline for filing with petitions Secretary of State. Section MCA. filing The deadline for petitions Secretary with the of State Friday (here, the third of the fourth month prior to election 2010). July 16, 13-27-104, Thus, Section proponent of a 2, ballot issue the November theoretically 2010 ballot could circulating 16, 2009, start petitions submitting of June signed petitions county 16,2009, election officials as October 16, but than no later June 2010.2 County 3. election required verify officials are names and signatures within four receiving weeks after the sheets or sections petition. of a MCA. The are then to the Secretary forwarded State. Section signatures 4. Once a sufficient number have been filed State, Secretary of he “immediately” certify or she must 2Here, proponents the 1-164 first submitted the ballot issue and draft 23, Secretary February Legislative of State on 2010. The completed 5, Attorney Services completed Division its review on March his April Secretary proponents review on and the State authorized the to commence signature gathering April 23. officially filed. petition the has been completed Governor that 13-27-308, case on present That occurred in the Section MCA. 19, July 2010. in file a days then ten which to opponent

5. An has petitions. the legal sufficiency the the ballot statements or give the case MCA. This Court must Section Section possible.” render decision “as soon as “precedence” and a 13-27-316(3)(c)(i),MCA. sufficient, legally If that are not then petitions we determine may using legally petitions. start over sufficient proponent course, subject

13-27-316(3)(c)(iii), proponent MCA. remains Of necessarily But it is not submitting petitions. the deadline on sure, it may be “impossible” comply foregoing with the timetable. To issue if did not “impossible” proponents be to resubmit the ballot enough they delayed if in process commence the initiative soon or county officials. submitting signed petitions election Under circumstances, those there not be sufficient time to recirculate But that petitions signed new if the ones are determined to be void. is deadlines, which reality of election and it the risk of If time proponents they process are on notice when start the late. runs out, hardly point, fault can on the courts. More to the it placed justification flout unambiguous statutory this Court to proponents in a effort to rescue the from their proactive directives own inability diligence signatures lack of or to obtain and submit in timely manner. Nevertheless, this Court has determined to save 1-164 from the statutory

doom is destined unquestionably to which under end, “cafeteria-style” approach employs scheme. To that Court picking choosing only statutory application, language goal rejecting simply which serves to achieve its or way. ignoring provisions get agree those which I cannot overruling our the statutes decision-making. brand of Absent required them as authority, apply based on constitutional we here, I Doing written. See so would hold follows: § jurisdiction present challenges, 1. has over the If this Court 3-2-202, MCA, parties is set and the jurisdiction forth to make or mandated required stipulation were the certification 3-2-202(3)(b)(i), challenge, 2. the merits of the ballot statements On MCFA’s signed petitions on the circulated and are void. contained no on authority place 3. This Court has November ballots that are from the statements on the different petitions. circulated I points address these in turn below.

II. Jurisdiction VII, A. Article Section 2 is the a court power authority ¶36 Jurisdiction to hear Martz, decide the or matter it. MT 382, case before State v. ¶ 47, 196 power authority 347 Mont. P.3d 1239. This is conferred pursuant courts Constitution statutes adopted Martz, Constitution. 21. jurisdiction Because power involves fundamental and

authority issue, may court to and of a determine hear an a court question jurisdiction Stanley address the of its sua v. sponte. See Lemire, 304, 30-32, 489, fact, 2006 MT Mont. 148 P.3d 643. In ¶¶ courts “independent obligation” have an to determine whether exists, jurisdiction even in any the absence of a from party, and a court in fact jurisdiction acquire by which lacks cannot consent parties. Stanley, 31-32. ¶¶ VII, Article Section 2 of the Montana Constitution delineates parameters jurisdiction. of this Court’s It states as follows:

(1) supreme may The has appellate jurisdiction court and hear, issue, and determine writs appropriate thereto. It has original issue, hear, jurisdiction to and determine writs of habeas such corpus may provided by other writs as law. (2) general supervisory It has control all over other courts. (3) may governing procedure, It make rules appellate practice courts, for procedure all other admission bar and conduct its of procedure subject of members. Rules shall be disapproval by the legislature either the two sessions following promulgation.

(4) Supreme process parts court shall extend all ofthe state. VII, 2, authority ¶39 Nowhere in Article Section is there for this Court original to entertain proceeding concerning Our challenge. a ballot original jurisdiction issue, is original jurisdiction limited. We have “to hear, and determine writs such corpus of habeas other writs be provided present proceeding law.” The does not involve Hence, writ. being there no constitutional source for this Court original jurisdiction exercise proceeding, over non-writ the statutes are, granting jurisdiction us necessarily, Stanley, such null and void. (“Jurisdiction conferred on the courts the Constitution added)). or adopted pursuant (emphasis statutes to the Constitution.” sponte. sua these cases must dismiss We 3-2-202(3), MtCA

B. Section i. The Law it has premise on the proceeds nevertheless The Court this Court’s governing The statutes this proceeding. jurisdiction.over (which 2, 2, MCA part chapter in Title are set out jurisdiction Jurisdiction”). jurisdictional provisions Court “Supreme titled are contained statements to review of ballot specific follows: provides as which (a) jurisdiction to review original court has supreme and the initiated measures for ballot statements petitioner’s for referred measures attorney general’s ballot in an action sufficiency determination legal attorney general’s to 13-27-316. brought pursuant (3)(a),

(b)(i) under subsection original proceeding In an certify the absence attorney general shall petitioner record any to and file factual stipulate factual issues shall petitioner’s consideration of the court’s necessary supreme legal sufficiency attorney general’s or the ballot statements determination.

(ii) under subsection original proceeding parties If the to an (3)(a) required by stipulation certification or fail to make the (3)(b)(i), proceeding court shall refer supreme subsection the lead county of residence of court in the to the district and an order that of a factual record development petitioner 13-27-316(3).... provided the issues addresses (3)(a), original “has this Court Beginning with subsection ¶41 jurisdiction to review the ^[1] petitioner’s ballot statements for initiated measures and ^[2] attorney general’s ballot statements for referred measures and ^[3] attorney general’s legal sufficiency determination This case falls into the brought to 13-27-316.” pursuant in an action sufficiency attorney general’s legal “the category: challenge third brought to 13-27-316.”MCFA’s pursuant determination in an action they brought under state that Harrington’s petitions Attorney MCA, challenge petitions specifically and the § for 1-164. legal sufficiency determination have failed to make Next, dispute parties there is no that the ¶42 (3)(b)(i)-i.e., they by subsection stipulation required certification or to and stipulated of factual issues or have not certified absence asserts that General any filed factual record. “minimal,” in district court would be development of a factual record and the opines Court that “noissues offact exist to preclude this Court from” rendering a decision. But that is beside the point. The statute petitioner states that the and the certify General “shall absence of factual issues or shall stipulate any to and file factual necessary record to the supreme court’s consideration of... the attorney general’s legal sufficiency 3-2-202(3)(b)(i), determination.” Section MCA. The statute say does not that the certification or stipulation need be filed if only development believes the a factual record in district court would be more than “minimal” or if this Court happens perceive some Rather, factual issues. says the certification or stipulation “shall” be filed. Period. Lastly, parties when the fail to requirement, abide this as is here,

the case this Court’s course of action is statutorily mandated:

If the parties original (3)(a) to an proceeding under subsection fail to make certification or stipulation required by subsection (3)(b)(i),the supreme court shall the proceeding to the district refer county court in the residence petitioner lead for development record and an order that addresses the factual 13-27-316(3). provided issues 3-2-202(3)(b)(ii), added). Section MCA (emphasis Honoring this unambiguous statutory mandate, we are required to refer this proceeding to a district court purposes stated in 3-2-303(3)(b)(ii), §

ii. The Court’s Workaround practical matter, As a if proceeding this were referred ato district court, there would not be time to resolve MCFA’s and Harrington’s challenges before the Secretary of August 19,2010 State’s deadline for certifying the candidates and ballot issues for the November ballot. See get § MCA. To around this problem, the Court 3-2-202, MCA, declares that apply § does not to these cases. problem first obvious approach if 3-2-202, MCA, does not apply cases, to these then we do not jurisdiction. have noted, 3-2-202(3), As MCA, is the statute which purports to confer “original jurisdiction” on this Court to review ballot statements. No other provision does so. The Court asserts 13-27-316(5), MCA, that § “endows” this Court with “original jurisdiction” to hear challenges to statements, but this pure fantasy. states: original

An proceeding in supreme court under this section is the exclusive remedy for a challenge to the petitioner’s ballot attorney statements, by attorney general, the or the as approved determination. A not sufficiency ballot issue legal general’s state has secretary this section after the invalidated under 13-12-201. certified the ballot under this is not an affirmative “endowment”

It self-evident that Rather, “original proceeding” which a reference the jurisdiction. it is 3-2-202(3), in by “original jurisdiction” grant is established the approach the Court’s that involves problem The second with this remaking Harrington’s challenges. Again, and MCFA’s a blatant Court “has original jurisdiction review ^[1] the petitioner’s ballot statements for initiated measures ^[2] attorney general’s ballot statements for referred measures and ^[3] attorney general’s legal action sufficiency brought pursuant determination in an to 13-27-316.” the third 3-2-202(3)(a), Focusing category, Section Harrington MCFA question becomes whether “legal sufficiency” determination and their General’s whether brought pursuant 13-27-316,MCA. Section action is to § MCA, states: opponents petitioner

If the of a ballot believe that the issue satisfy attorney general do not approved ballot statements attorney general of 13-27-312or believe that determining petition legally incorrect was was sufficient, they date of may, days within of the certification filed, officially has governor completed petition that the been original challenging in the court proceeding supreme file adequacy attorney general’s ofthe or the determination statement requesting the court to alter the statement or overrule attorney general’s concerning sufficiency the legal determination . petition. . . “challenge The Court and MCFA Harrington concedes legal sufficiency “legal for In regard, determination 1-164under MCA.” this sufficiency’ is defined as follows: “legal sufficiency” petition

As used means that the part, complies requirements governing constitutional issue to the electors. Review of proposed submission legal sufficiency does include of the petition consideration issue legality approved substantive if the voters. added). (emphasis One of the so-called MCA ofthe issue

“statutory... requirements governing submission (4) to the electors” is set forth in subsection of the same statute: “The ballot statements must express the true and impartial explanation of the proposed plain, easily ballot issue in understood language arguments not be or written so as prejudice to create for or against the 13-27-312(4), issue.” Section MCA.The Attorney General is specifically instructed to ensure that this “statutory requirement” is met. See (“[T]he 13-27-312(1), MCA attorney general § ... shall determine whether the ballot comply statements with the requirements of this section.”). Here, Harrington and challenge MCFA the Attorney General’s determination that I-164’s statement of purpose, fiscal statement, and implication statements of are legally sufficient under 13-27-312(4), Thus, § MCA. Harrington do, and MCFA fact, Attorney the General’s determination that the petition complies with the “requirements governing submission ofthe proposed issue to the electors.” According Court, however, the Harrington and MCFA raise an

improper challenge to the legality” 1-164, “substantive of rather than legal determination of sufficiency. This is an outright Indeed, fabrication. the Court cannot point single to a sentence in MCFA’spetition Harrington’s petition challenging the legality” “substantive of They 1-164. 1-164, do not contend that if approved by voters, would constitute a taking property of without just compensation. They 1-164, do not contend that if approved by the voters, would violate Equal They Protection Clause. do not contend 1-164, approved if voters, deprive would lenders ofproperty without process due They oflaw. do 1-164, not contend that if approved voters, would constitute unconstitutional special legislation. In short, neither MCFAnor Harrington lodges any challenge whatsoever to “the legality substantive of [1-164] if approved by the voters.” Rather, their petitions clearly and unmistakably challenge the Attorney General’s determination that the ballot comply with the statutory requirements governing submission of 1-164to the electors. The first sentence of Summary MCFA’s Argument states:

MCFA contends that I-164’sballot statements do not meet requirements 13-27-312, of section result, MCA. As a statements donot meet the statutory requirements for submitting proposed issue to the electors. And the first sentence of analysis MCFA’s beginning on page 6 of its petition states:

MCFA original initiated this proceeding pursuant to section adequacy 13-27-316, MCA, challenging I-164’s ballot statements. view, on, explain why, in its pages, over goes

MCFA then four at Finally, satisfy do not ballot statements argument, its MCFA asks Court conclusion of requirements do not that 1-164ballot statements meet find meet the consequently do not section submitting the issue to the statutory requirements for issue electors, any determination that the ballot and overrule legally sufficient. effect. He

Harrington’s petition is the same states: the manner in judgment arising This is an action for from Montana, the Officeof the General of the State which made a erroneously approved legal statements and prepared initiative, for a ballot 1-164 .... sufficiency determination fiscal Harrington purpose, further asserts that statement of statement, implication approved by and statements of 13-27-312(4), MCA-i.e., General do not meet impartial the of the they “express explanation do not true and plain, easily they and proposed language,” issue understood ballot Harrington to create for... the then prejudice are “written so as issue.” statements, something alternate he would not goes propose to ballot truly challenge to if he raising have bother with were measure as Court claims. See legality” “substantive the the 13-27~316(3)(b), (“If MCA proceeding requests § modification of statements, brought ballot an action under this section must state how by attorney general petitioner’s approved ballot statements do and satisfy requirements propose of 13-27-312 must alternate satisfy requirements ballot statements of 13-27-312.” added)). (emphasis MCFA Even the Court concedes elsewhere its Order that and

¶50 Harrington original jurisdiction “invoke this Court’s determination legal sufficiency and ballot Attorney General’s Harrington Initiative 164” and that statements for No. MCFA “challenge Attorney legal the ballot statements General’s 13-27-316, Indeed, under MCA.” sufficiency determination for 1-164 § 1-164, challenges legality if their were the substantive not to 13-27-312(7), determination under § General’s statutory “the petition complies with constitutional electors,” ofthe issue to then there governing proposed submission statements, would need to as the Court does. be no rewrite ballot squarely the third Accordingly, category these cases fall within ¶51 3-2-202(3)(a), Yet, parties have failed to make the required by 3-2-202(3)(b)(i), stipulation certification or required proceeding this Court to refer this Consequently, is to do is district court. Court’s refusal so demonstrates that it willing ignore statutory mandates and distort Petitioners’ arguments in order to reach a desired result. Challenge

III. The Merits of MCFA’s agree I implicit Court’s conclusion that statement purpose implication and statements of adopted “express explanation General do not the true and impartial proposed easily issue in plain, language.” understood I MCA. reach this conclusion for the reasons argued MCFA, explain which I below. Initially, however, I the Attorney note threshold

argument that MCFA’s petition deficient because MCFA has not argument totally alternate ballot statements. This without thing, merit. For if required only one alternate ballot statements the challenger “requests modification of ballot statements” in the 13-27-316(3)(b), here, action this before Court. Section MCA. And Rather, MCFA request does not modification of the ballot statements. petitions MCFA seeks to invalidate 1-164 and 1-164 itself on the ground that the ballot petitions statements contained on the were Thus, deficient. MCFA required propose was not alternate statements. Furthermore, if language petitions of the 1-164 is in fact

invalid, language no proposed alternate could save them now. The already have been and signed. signed circulated Those who the petitions already have the deficient ofpurpose read statement deficient statements of It implication. is too late recirculate the petitions. See MCA.The §§ possible fails to what at explain point by could be served proposing language. alternate And there requirement is no opponent present do so under the circumstances. issue, then to the Turning merits of the fundamental problem language quite apparent; and it therefore, perplexing, that the not recognize did and remedy problem, prior petitions’ being circulated, in his review of the and his proposed language parties consultation with 13-27-312(1),(2), both sides ofthe issue. See 1-164changes categories law with respect Specifically, lenders/businesses. five to: applies the initiative (the used in I- lenders” term “retail installment

1. So-called under regulated Such entities are purpose). 164’s statement (the 1, 2, Montana Retail Installment 31, part MCA chapter Title Act). or furnishes They person goods “a who sells Sales include contract buyer retail in a written retail installment services to a 31-l-202(l)(p), installment retail transaction.” Section or written -241, MCA, 3 and 1-164amend 31-1-203 §§ MCA. Sections charge retail permissible to limit finance respectively, per may charge lenders 36% annum. installment 31, chapter 1, Pawnbrokers, regulated under Title who are 2. 4, 1-164 amends part MCA. Section 5 of engaging in certain financial activities prohibit pawnbrokers from (such cashing advancing money or for or deferred postdated exchange charge), check in for a fee or finance unless presentment licensee, consumer deferred is licensed as a loan pawnbroker licensee, Thus, passed, title loan licensee. if 1-164 deposit loan to the same interest rate pawnbrokers subject cap would be 36% subject. these other entities are to which lenders, regulated deposit (payday) 3. Deferred who are (the 31, 1, 7, MCA chapter part under Title Montana Deferred Act). Loan Sections 2 and 6 of 1-164 amend 31-1-112 Deposit §§ -722, MCA, limit respectively, finance permissible deposit may charge charge per deferred lenders to 36% annum. lenders, 31, regulated chapter 1,

4. Title who are under Title (the Act). part 8, 7 of MCA Montana Title Loan Sections 2 and I- -817, MCA, limit respectively, 164 amend 31-1-112 and §§ permissible charge per finance title lenders may charge 36% annum. licensees, regulated Consumer loan Title

5. who under (the Act). 5, MCA chapter Montana Consumer Loan Such entities primarily are licensed to offer or extend credit to an individual personal, family, 32-5-102(2)(a), purposes. or household See § lenders, lenders, They deposit do not include deferred title regulated and certain other lenders such as banks credit 32-5-102(2)(b), -103(5), unions. See 2 and 8 of MCA. Sections §§ 32-5-301,MCA, amend respectively, 1-164 31-1-112 limit §§ permissible charge finance consumer loan licensees charge per to 36% annum. affected are not Two of these entities disclosed to voters implication adopted

statement of the statements (one presented General and on the face of Dissent). which is included as an exhibit at the end of this Attorney General’s statement of purpose, note, fiscal and statements (with implication inform voters that 1-164 does the following added): emphases law,

Under Montana deposit (payday) may lenders deferred charge equaling loan, fees one-fourth of the which is the same as an annual interest percent rate of 300 for a 31-day loan or 650 percent for a 14-day loan. Title may charge lenders interest equaling loan, one-fourth of the which is the same as an annual percent interest rate of 300 30-day for a loan. 1-164 reduces the interest, fees, and charges title, that payday, and retail may charge installment lenders to an annual interest rate of 36 percent. prohibits It businesses from structuring other transactions to avoid the rate limit.

1-164reduces the license and examination fee paid revenue State because certain may lenders not renew their licenses. [ ] FOR reducing interest, fees, the annual and charges payday, title, and retail may installment lenders charge on loans to 36 percent.

[ ] AGAINST reducing interest, the annual fees, charges title, payday, and retail installment may lenders charge on loans percent. to 36 deposit lenders,

Deferred (payday) lenders, title and retail installment lenders are But, identified. as MCFA correctly out, points statement of purpose and the statements of implication make no mention whatsoever of consumer loan pawnbrokers, licensees or even though these entities are covered and affected the initiative. Voters are not told that 1-164 interest, fees, reduces the charges consumer loan licensees charge to an annual interest rate of 36 percent. In regard, it must be recalled statutory that the scheme clearly distinguishes consumer loans from deposit loans, deferred title loans, and retail installment transactions. See 31-l-202(l)(m)-(o), §§ 32-5-102(2), MCA. General is required by law to review a proposed

ballot issue legal sufficiency-i.e., whether petition “complies statutory constitutional governing submission proposed issue to the 13-27-312(1),(7), electors.” Section Among other requirements, perhaps the most basic is that the statement purpose and the implication statements of “must express the true and impartial explanation ofthe proposed ballot issue 13-27-312(4), language.” easily understood in plain, not contain initiative need summary preceding Although the initiative, all -within provisions index of catalog complete notice of the content fair “provide must purpose statement as to its not be misled that the voter will so amendment Citizens and informed ballot.” intelligent can cast an purpose, 153, 142 16, 333 Mont. McGrath, 2006 MT v. Right to Recall omitted). (internal marks quotation P.3d 764 contends, I that the statement Here, agree, MCFA mention only specifically “not fails to Attorney General by the adopted a clue licensees, provide does not even loan but Montana consumer The statement of the initiative.” subject is a this licensee only. lenders” title, and retail installment “payday, identifies purpose language lender, and there is no identify any type other It does not consumer loan to include reasonably be understood that could scope. within I-164’s pawnbrokers licensees and and the statements purpose the statement of Consequently, to voters of the 1-164 submitted on the face implication “express the true They and invalid. do not are deficient signatures easily plain, issue in proposed of the ballot explanation impartial they provide do MCA.Nor language.” Section understood initiative, so that the voter proposed of the of the content fair notice intelligent can make an purpose to its misled as will Recall, 16. Right to sign petition. Citizens decision of whether to 1-164 fact, suggestion applies in their are, misleading They lenders,” actually title, when and retail installment “payday, as well. loan licensees and consumer applies pawnbrokers Cf. Mitchell, 148, 163-64, 62 P.2d 349-50 103 Mont. Sawyer Stores v. (1936). first, a “scarce” 100- argues, that there is General 13-27-312(2)(a), as if to purpose, see § limit on a statement

word by proposed who will be affected parties that some of the suggest this word satisfy in order to ignored be omitted or ballot initiative A statement remotely persuasive. is not even limit. This contention explanation to be a “true” purpose supposed is provides MCA.When the issue. Section specifically 1-164 entities to which specific list of three a discrete lenders”), logical title, retail installment applies (“payday, by the only entities covered entities are the inference is that these is not intelligence and common sense average A person initiative. of other quantity may be some unknown to assume that there going entities which by are covered initiative but which the General did not bother to mention. The notion that a statement of purpose is “true” it purports when to list the parties affected initiative, actually but omits two of those affected parties, utterly implausible, and the Court properly rejects it. The Attorney General next argues that the statement of

“indicate[s] that other subject ‘businesses’ are to the initiative as well” because the term “businesses” is used in the last sentence of the purpose, statement of “[1-164] which states: prohibits businesses from structuring other transactions to avoid the rate limit.” This contention truly First, bizarre for two reasons. it is not clear what the term “businesses” even means here. Is it a reference to the “businesses” mentioned in the preceding title, sentence (“payday, and retail lenders”)? installment Or is it a reference to all “businesses”? If the latter, then the term “businesses” is misleading because 1-164does not actually impose the 36 percent rate limit on all businesses. To the contrary, which, there are various businesses like consumer loan licensees, deferred deposit licensees, loan licensees, and title loan “regulated lenders,” considered but which are not covered 1-164. These banks, include building associations, and loan savings and loan associations, trust companies, unions, credit associations, credit residential mortgage licensees, lender development corporations, bank holding companies, and mutual or stock insurance companies. Section 31-1-111(1),MCA.These “businesses” are exempt from all limitations on the rate of they may interest that charge and are also exempt from operation the and effect usury of all statutes. See While Ben might Bernanke have an idea ofwhat the term “businesses” means in the last sentence of Attorney General’s statement of purpose, average presented voter with an 1-164petition certainly would not. Second, Attorney General concedes that one ofthe reasons he

rewrote proponents’ statement of purpose in place the first was because the statement specify “did not type subject loans (with limits.” The proponents’ statement of purpose read emphasis added):

Initiative [164] limits the interest, annual fees and charges lenders, certain including payday and lenders, car title charge on loans to percent because some charge lenders annual rates of more than 400 percent. It extends to all Montanans the same interest provided rate limit military personnel and their families. It imposes prevent restrictions to lenders from avoiding percent annual rate in of the 36 the rate limits. Loans violation Trade Practices and Consumer Unfair violate the Montana Act. Protection Attorney likewise

Yet, by selected General the word “businesses” It is more subject the limits. no of loans specify type not does by selected “certain lenders” informative than the word is fact, lenders” because “certain In is less informative proponents. proponents’ proposed The obviously than “businesses.” narrower letting know that had the virtue of voters purpose statement of at least car lenders” that title “payday there were other lenders besides purpose, statement of by Attorney General’s were affected 1-164. hand, title, installment and retail “payday, on the other refers regulated two no that there are other way lenders” and in indicates by the initiative. lenders that are affected fashion, Next, conclusory Attorney argues, General misconstrue, understand, might what “consumer would not

voters all, however, justification are. this is not valid loan licensees” First from Consumer purpose. these entities the statement omitting initiative, targeted by the specific licensees are one offive entities loan purpose in the statement of they therefore should be mentioned Moreover, entities that are mentioned. along targeted with the three Attorney Harrington presenting for not while the General criticizes Attorney any arguments, evidence in of his support himself be presents no evidence that voters would confused term “providers term ofconsumer loans” or that voters understand this lenders,” any they less than understand the terms “retail installment lenders,” Attorney (payday) and “title lenders.” deposit “deferred rather, entirely conjecture.3 on sheer argument, General’s based Finally, point, actually to the extent that voters and even more to be confused the statement of the statements would written, obligation it is the General’s implication as 13-27-202(4),-312(1),MCA, outright, reject those statements §§ confused, so voters will language to rewrite the 13-27-312(8)(b), leaving dark not a Simply voters option. lawful that, arguments internally In Not inconsistent. paragraph, that he left consumer loan licensees out one General states application purpose a 36% annual interest rate to

the statement of “the of because Yet, very paragraph, straightforward.” in the next consumer loans is more General asserts might “a term” that voters that “consumer lender” is technical misconstrue.

264 that rejecting Harrington’s It ironic assertion that regulated

statement of purpose types should name the of lenders that application, suggests excluded from I-164’s actually that what voters “care about” are the entities that are affected by 1-164, Yet, not the ones that are not affected the initiative. two licensees) (pawnbrokers affected entities and consumer loan are not even mentioned. matter, MCFA, As a although explicitly final cited it is

important acknowledge of another facet 1-164that is not mentioned in Attorney purpose. Again, 13-27-312(4), General’s statement of § together Recall, 16, read Right requires with Citizens that statement of and the statements implication be written so They as not to mislead voters as to the purpose. initiative’s must be notice”-i.e., goal inform, written with the truthfully “fair so that can voters make intelligent Unfortunately, 1-143, decision. as with it appears yet “carefully that 1-164is another crafted” initiative to put out lawfully of business certain operating businesses which are regulated by licensed and See Dept. State. v. Montana Kafka FWP, 460, 114-116, 2008 MT 80, Mont. 201 8 (Nelson, 348 P.3d ¶¶ Rice, Swandal, & JJ., 1-143, dissenting). With it was alternative farmers). (game 1-164, livestock ranchers With it is types certain regulated (payday lenders and title in particular). Through lenders expedient of simple statutorily reducing price for which the businessperson sell or product can his her or service-here the interest may charge-the rate such can, lenders public paying just without (see compensation taking 64, Kafka, 83, (Opinion ¶¶ Court)), simply unprofitable.4 render a business reasons, For foregoing language of the 1-164 petitions is go invalid. Because we cannot language, back “fix” that see 13-27-316(3)(c)(ii), MCA, already § have been also, unlikely, appreciate payday It is that most voters and title lenders exist, all, people at if because most with lower incomes-whose “asset” is their car minimum-wage paycheck-have legitimate reasonably or priced, no source of short-term money presented credit when there are more bills than end at the of the month or when unexpected emergency. They with an financial borrow at exorbitant rates of interest doubt, too, because there is no other I alternative. that most voters understand that “regulated lenders,” banks, including building associations, savings other and loan associations, unions, associations, companies, loan trust credit credit residential licensees, mortgage mutual that development corporations, holding compames, lender bank (see MCA)-some companies stock insurance of the same folks lapped up taxpayer-funded exempt billions bailouts and bonuses-are from all they may charge exempt limitations on the operation rate interest and are from the (see MCA). usury all effect of statutes voters, course legally the correct signed registered to presented declaring of the requested remedy grant MCFA’s of action is ballot, on see may not the ordering appear that 1-164 void petitions 13-27-316(3)(c)(iii),MCA. § Ballot Statements

IV. The Court’s New place outset, authority has no at this Court As noted the from the ballots that are on the November statements different has Granted, this Court been petitions. the statements on circulated See authority the ballot statements.5 to rewrite given (“If the that the ballot 13-27-316(3)(c)(ii), MCA court decides 13-27-312, may of . . . requirements do meet the not the court determines certify secretary the of state a statement that 13-27-312.”). “[a] But statement . . . meet the of will petition must the circulation and placed certified the court on for 13-27-316(3)(c)(ii), (emphasis the ballot.” Section MCA on official added). Moreover, the form supreme petition “[i]f... the court revises statements, any prior to revision are signed or ballot the petitions Section void.” matter, that purely patently Even as a intuitive it seems obvious statement, fiscal and statements of purpose,

the statement of contained on circulated to voters must be the implication (at substance) as fiscal purpose, same least the statement statement, implication provided and statements of on the at the say thing that one and then Circulating petitions providing election. say something initiative election ballots that else undermines the Indeed, it is fraud process and misleads voters. bait-and-switch illegal MCA obtaining petition signatures. and akin to See § circumstances). such (requiring ballot issue to be decertified under why petition This is when this revises the or ballot Court form statements, “any are petitions signed prior the revision void.” petitions, MCA. And without valid the ballot 13-27-307, -308, MCA; appear issue on the ballot. See see §§ e.g. 13-27-316(3)(c)(iii),MCA. also blatantly so that a disregard That this Court would so law ballot, fact notwithstanding can that appear

ballot measure on aside, authority. possesses I such This As find it untenable this Court an be, is, judging disputes least in the business of conflicts and over Court or at should rewriting language language. disputed so that in the It should not be business party-here, dispute. That the statute even favored General-wins principles permits perverse fundamental offairness and such a result violates most govern judges. impartiality presumably all courts and void, petitions upon premised which the measure is should be grave very people protecting: concern the Court purports to be connection, an

the voters. In this there is undercurrent in arguments and in the Court’s decision in these cases that invalidating 1-164 would proposition disenfranchise voters. This utterly unavailing. signed Those the petitions properly who were not advised I-164’s and the of a implications against vote for time, 1-164, point initiative. At this no one has “voted”on no “disenfranchised”-i.e., being deprived one is right vote. See 1999). ed., Dictionary (Bryan ed., Black’s Law Garner A. 7th West if Indeed, any merit, of argument sort had could never we declare invalid, That, initiative do so would “disenfranchise” voters. course, nonsense, occasion, do, since we declare initiatives invalid, which violate the law or the constitution both before and after e.g. Waltermire, voters have voted. See ex State rel. Montana Citizens v. 85, (1987); 227 Mont. P.2d 738 1255 Marshall v. State ex rel. Cooney, 33, 274, 325; 1999 MT Mont. 975 293 P.2d Montanans v. For Justice McGrath, 277, 237, 759; State ex rel. MT 334 Mont. 146 P.3d State, Against 278, 265, 147 Citizens CI-97 v. 2006 MT 334 Mont. P.3d cases, them, 174. The lesson from these and others like is that no one right has the to on placed vote a ballot measure that is before them in violation the law or the Unfortunately, Constitution. this is a lesson upon lost the Court here.

V. Conclusion State, The people of this their through ¶70 elected representatives, a adopted system designed to ensure that ballot measures would not on

appear the ballot certain prerequisites unless were satisfied. To be sure, is, the statutory “scheme”-which perhaps, apt appellation-is far perfect. from In this regard, General explains that the Legislature revised the initiative in process 2007 in order to avoid repeat ofthe “electoral democracy’ confusion” and “crisis of direct that Montana, surrounded three Seegenerally ballot issues 2006. Laws 2007, 481; State, ch. Over Stop Spending 178, 333 Montana v. MT 42, 788; Mont. 139 P.3d Montanans For Justice v. State ex rel. McGrath, 237, 2006 MT 334 Mont. 146 P.3d 759. Unfortunately, however, present challenges demonstrate, as the to 1-164 problems still remain-not the least of is the challenges petitions which fact that brought have signed, been circulated and not to after mention the fact this granted “original Court has been jurisdiction” which the Montana Constitution does not authorize. Moreover, again we are once faced with a to a timeline, parties have failed extremely tight initiative on an by the adopted comply with most basic file issues, or to and certify stipulate offactual the absence Legislature: To the extent these necessary to our decision. any factual record “crisis,” plainly lies another blame for circumstances have created comply parties failure of the with patent lawmakers and the the statutes. probably scrapped, The entire scheme should be awith clear start over from scratch

Legislature simply should (b) (a) understood; statutory and can be practical framework that officials, designated state allows sufficient time for review necessary, extent and review of inevitable ballot revisions (c) Court; transparency and truth challenges by guarantees this meantime, however, In the it is not process. in the initiative and ballot pseudo-legislators take prerogative this Court’s role of in order to achieve some manipulate clear mandates presumed good. Legislature’s It is the constitutional role greater statutes, role to apply enact the and it is this Court’s constitutional forthright democracy” in a manner. The “crisis of direct them inability simply case is Court’s follow law. present consumers, lending gouge I am more a fan of institutions that no incomes, people charge those with than I am of who especially lower animals-indeed, “sport” shooting penned defenseless the two for However, favorably. and our caselaw compare both blackletter law truthfully informed; driving require purposes that voters be initiative, initiative, implications a citizens’ as well as the transparent; voting and that voters not be misled into wolf of facially clothing in the sheep’s well-intentioned initiative cloaked misleading implication. statements of is, goals apparently, As for the I-164’s since there proponents, public payday such a hullabaloo over the interest rates that lenders charge, public simply and title lenders should demand that its Legislature step in the the next representatives up plate do, session, do has had job body always power which title, actually regulate payday, the interest rates of and other of 1-164 “regulated” lenders in the interests of consumers. The demise certainly prevent Legislature accomplishing not from this would objective itself. Concurrence, always Lastly, as to the while it is easier to shoot

¶74 this messenger, analysis Dissent’s stands unrefuted. jurisdiction I would hold that this Court does not have ¶75 Harrington’s entertain petitions challenging MCFA’s the 1-164 Furthermore, jurisdiction ballot statements. even if we did have under 3-2-202(3)(a),MCA, we would to refer required § be this proceeding 3-2-202(3)(b)(ii), court pursuant district MCA. Alternatively, § challenge, merits MCFA’s I conclude that the General’s legal sufficiency determination is incorrect and that 1-164 does not comply result, void, requirements. petitions As a are appear 13-27-316(3)(c)(iii), 1-164 on the ballot. See MCA. § Finally, decision to Court’s rewrite for the ballot, despite the November fact that the underlying void, authority legally is without untenable. I dissent. RICE,

JUSTICE dissenting. I Harrington ¶77 believe Court’s determination that has raised issues, legal substantive and not issues governing submission voters, the initiative to the I agree untenable. with Justice Nelson’s regard. Dissent, Dissent in this summary 40-43. The Court’s ¶¶ own arguments, in 6 provided of the Opinion, demonstrates that the arguments challengers made are directed to the initiative’s submission and “legal sufficiency” determination, Thus, as that term is defined in 3-2-202(3),MCA, applies governs. Under this but unique specific provision, parties because the have failed to make a certification or stipulation issues, factual regarding “the supreme court shall refer the proceeding to the district for development court... of a factual record.” 3-2-202(3)(b)(ii), good legislative reason directive can seen today’s Court, by decision. The its modification of the ballot language, deciding what groups will be named task, on the ballot. This critical if all, undertaken at requires the careful selection of few words and should be based a solid upon factual foundation. I would remand accordance with the statute. (3 Petition pages)

EXHIBIT: 1-164

Case Details

Case Name: Montana Consumer Finance Ass'n v. State Ex Rel. Bullock

Court Name: Montana Supreme Court

Date Published: Aug 17, 2010

Citation: 238 P.3d 765

Docket Number: OP 10-0366 & OP 10-0371

Court Abbreviation: Mont.