Montanans Opposed to I-166 v. State
285 P.3d 435
Mont.
2012
Check Treatment

*1 I-166, TO OPPOSED MONTANANS DAVE Committee, SENATOR a Political Individually, Elected and as an LEWIS, Legislature, PHIL of the Montana Member Individually, Owner and as an LILLEBERG, Corporation, INC., FP,

Petitioners, v. HONORABLE OF MONTANA STATE capacity as in his BULLOCK, STEVE and the HONORABLE General capacity in her McCULLOCH, LINDA Secretary State, Respondents. No. OP 12-0439. August Decided 2012. 2012 MT 168. 365 Mont. 520. 285 P.3d 435. JUSTICE BAKER concurred.

JUSTICE NELSON dissented.

OPINION and ORDER brought original Petitioners an in proceeding pursuant this Court 13-27-316, MCA, attacking validity They the of Initiative 166. § request Attorney that this Court rule that the General and the Secretary of State did comply responsibilities with their under law they when failed to act to 1-166 from appearing general bar on the election ballot. 1-166is a ballot initiative would establish that the policy of the State of Montana is that not entitled to persons. and are not It “charges”elected officials implement the policy part by acting prohibit corporate political campaign spending political and to limit spending in elections. It “charges”Montana’s further congressional delegation with proposing an amendment to the United States establishing Constitution corporations are not beings human rights. entitled to constitutional The Constitution, Ill, empowers ¶2 Art. sec. people the to enact laws initiative on all matters except appropriations and special local or Proponents laws. of gather an initiative must sufficient signatures number of petitions that support placing the matter on the ballot. gathering Prior to signatures the proponents must submit Secretary to the proposed of State the text of the ballot issue along with a draft statement of the purpose of the initiative and a separate statement implications of the of against a vote for or the issue. The Secretary of State must submit the measure to the Legislative Services Division for Attorney review and thereafter to the General for Upon by Legislative review. review Services and upon approval General, of the Attorney the Secretary of State then notifies proponents measure, the of the begin gathering signatures. who 13-27-202, Section MCA. The Attorney General’s review is limited to determining the

sufficiency of the ballot statements and a review of the ballot issue for legal sufficiency. 13-27-312, Section MCA. The statements must explain the purpose of the measure in 100 words or less and the implications of votes for against, in 25 or words less. Section 13-27- 312(2), Attorney MCA. The legal sufficiency General’s review determines whether proposal complies the applicable with the statutory and constitutional requirements. legal The sufficiency review legality of the substantive include consideration “doesnot

specifically 13-27-312(7), MCA. by the Section if voters.” approved of the issue Secretary proposal State received 1-166, In the case of Attorney to the and then Legislative Services it to and submitted proponents’ Attorney revised General for review. General Secretary of State otherwise notified purpose but statement sufficiency Upon legal review. required met proposal State notified the Secretary Attorney General notification begin gathering signatures, could of 1-166 proponents MCA. provided §13-27-202. that the contend petitioners, opponents The current Attorney and that comply with law statements do

ballot also contend that the They them. approved should not have General that it is a grounds including unlawful on several initiative itself is the Montana law; amends improperly not a that it resolution and Constitution; representatives directs elected improperly and that it 13-27-316(2), MCA, which allows They sued under how to vote. § adequacy explanatory issue to contest opponents of ballot legal determination of and of the General’s statements sufficiency. They seek no other relief. Attorney General’s review for explained, the previously As

¶6 petition the sufficiency by determining limited law to whether legal statutory the and constitutional complies for a ballot issue with the proposed of the issue to “governing submission requirements legality the It not include consideration “of substantive electors.” does 13-27-312(7), MCA. by Section approved the issue if the voters.” of require this Court However, the in this case seek to have petitioners precisely legal the substantive Attorney that the General undertake statute, Attorney had By the General review that is excluded law. petition 1-166.The does legality the of power no to review substantive petition legally find that the was allege nor does this Court a proposed for submission of ballot requirements insufficient as to the issue. that were explanatory reviewed the statements We have

¶7 13-27-312(4), MCA, Attorney the General. Section approved implication and the of a vote purpose that the statements of requires “easily understood impartial” “true and and must be must be so as to create may arguments and not be or written language request that this against petitioners the issue.” The prejudice for or General, Attorney approved by the reject Court either the statements the statements we determine that Upon re-write them. review of §13-27-312(2) (4), MCA. requirements meet the relief, requested any e.g. Harper other see v. Petitioners have ¶8 (1984), Waltermire, 425, and we decline to 213 Mont. 691 P.2d any properly pled. consider such issues not above, petition For the reasons stated the is denied.

¶9 day August, DATED this 10th 2012. COTTER, RICE,

JUSTICES WHEAT MORRIS concur. BAKER, concurring. JUSTICE reject petition I concur the in this case Court’s decision to

¶10 appear general and to allow 1-166 to on the November 2012 election ballot. I also concur in the Court’s determination that the language fairly represents General’s ballot the text of the measure and §13-27-312(2) (4), therefore meets the requirements of and MCA. key issue is a petition whether states claim that be pre-election original

entertained in a proceeding before this Court. striving give While liberal construction to constitutional statutory initiative and provisions referendum order “to maintain power people,” maximum in the previously Court has invalidated proposed beyond power ballot issues that are that the III, people 5, reserved to themselves in Article Sections Grossman, County 373, Constitution. Chouteau v. 172 Mont. 563 P.2d (invalidating county referendum proposal that concerned an administrative rather legislative than function); Harper, 213 Mont. at 691 P.2d at 828-29 (invalidating proposed legislative initiative resolution result). compelling legislature to reach specific decided, Since legislature those cases were has acted several years clarify times over the legal challenges may when keep an initiative or 3-2-202(3)(a), MCA, referendum off the ballot. Section filed, under which petition in this case was now makes clear that original jurisdiction this Court has to review “the attorney general’s legal sufficiency determination in an brought pursuant action to 13-27- §13-27-316(2), MCA, 316.”Under Petitioners requested here have Court to alter the Attorney General’s ballot statements and to overrule his determination petition legally that the sufficient. obligation Consistent with its to construe promote, the statutes to curtail,

rather people’s right than to democracy, direct the Court *4 interprets Attorney the ‘legal sufficiency” authority General’s review Thus, narrowly. 13-27-312(7), MCA, the Court refuses to read § conferring power Attorney reject on the General to a citizen-initiated 6.) ballot measure for deficiency. (Opinion, The ¶ argues Dissent power General has a declare proposed facially initiative or referendum unconstitutional and to 40.) (Dissent, While I believe its on the ballot.

prohibit placement ¶ executive, judicial government, it is the branch of unconstitutional, I facially a measure is do determines whether ballot my in case to the Court’s rationale that the not confine decision this form of relief. petitioners simply request proper failed to process a for a legislature prescribed specific TW]hen the has measure, prior have refused to intervene challenge court to ballot we State, if that not followed.”Reichert v. process to the election was 111, 95, (Baker, J., concurring and MT 365 Mont. 278 P.3d 455 the Preservation dissenting) (citing State ex rel. Mont. Citizens for Waltermire, 273, 278, 729 1283, 1286 P.2d Citizens’Rights v. Mont. (1986)). Harper In contrast to the law at the time and Grossman were decided, ruling preference the statutes now reflect a clear to defer constitutionality proposed petition of a initiative until after results of the election at which it is submitted to the voters. governing expressly preserve right challenge statutes “the a ballot 3-2-202(5), by people.” enacted a vote of the MCA. See issue Section (‘This §13-27-316(6), right also MCA section does not limit the challenge a in approved constitutional defect the substance of an issue added.) people.”). (Emphasis a vote beyond power Petitioners’ claim that 1-166is initiative referendum challenges alleged an constitutional defect in the possesses original substance ofthe measure. Whether or not the Court jurisdiction proper proceeding proposed in a to invalidate a ballot prior (§3-2-202(1),MCA), measure to the I election would hold in this challenge case Petitioners’ to 1-166does not meet the Court’s own (M. discretionary for requirements original jurisdiction exercise of its 14(2) (4)) App. R. P. and must final in await the election results time, voters, At that if the measure is approved November. may proceed by filing complaint declaratory Petitioners for judgment by pursuing in district court and the “normal appeal process” this 14(4). Court. M. R. P. That App. process is better suited for the development and informed consideration of constitutional questions petition. such as those raised I do not read the Court’s decision today challenge to foreclose such a if the approved measure is in the general election. NELSON, dissenting.

JUSTICE I respectfully deny dissent from Court’s decision to relief. I rather, agree, arguments with the of Petitioners and order the would Secretary place of State not to 1-166on general the 2012 election ballot or, already measure, if the printed ballots have been with the not to State, 1, 13, 365 MT count the votes. SeeReichert v. Mont. ¶¶

525 I three 92, detailing my legal analysis, have 278 P.3d 455. Before observations. Contempt

I. (discussed First, legal problem plaguing the fatal 1-166 aside from bottom, below), is, simply feel-good exercise this initiative at and, exhibiting contempt government particularly, for the federal Obviously, corporations are not Supreme United States Court.1 (or not) may beings,” ‘human and the fact that Montana voters “persons” corporations have heartburn with the notion of imbued mistake, I rights largely irrelevant. Make no with constitutional fellow Montanans. See Western Tradition, 132 pain my share the J., (Nelson, dissenting). change And if Montana its laws to wants provide corporations persons that are not and are without rights, certainly constitutional it can do that. But the 1-166 exercise-at portion directing least that of the initiative Montana’s elected and state appointed going officials to act at the level-is not how to alter Indeed, these at the federal in our sister I concepts level or states. suspect amending put Montana’s laws this fashion would corporations disadvantage Montana at a distinct in interstate and, likely, commerce cause Montana to incorporate businesses elsewhere. corporations “persons” The fact is that are certain imbued with Court has said so. First Supreme because the Bellotti,

Natl. Bank v. 765, 15, 1407, 435 U.S. 780 n. 98 S. Ct. (1978) (“It century n. 15 has been settled for almost but persons meaning Amendment.”); within of the Fourteenth Bellotti, see J., 435 U.S. at 98 S. Ct. at 1439-40 (Rehnquist, dissenting). exercise, The 1-166 if adopted, going change even is not Likewise, said, that. Court has also unequivocally, the protections of the First Amendment to the United States v. Citizens United corporations, FEC,_U.S. Constitution extend to (2010) _, 876, (citing dating 130 S. Ct. 899-900 numerous cases back 1950s), government as far as the and that prohibit cannot making from independent expenditures to influence “thumbing Regardless One refer to this as nose” at the could Montana’s feds. nomenclature, however, the 1-166 exercise.” It is a the intent is the same. I thus refer to this measure as “the sequel approach to the ‘Made in Montana” that failed in Western Atty. Gen., MT 328, 363 220, 271 Tradition Partn. v. Mont. nom. Am. Tradition Partn. v. Mont. P.3d rev’d sub curiam). Bullock,_U.S._, (per 132 S. Ct. 2490 United, issues, Citizens at 913. 130 S. Ct.

elections and ballot exercise, going change if that. adopted, the 1-166 even Again, Citizens United challenged applicability case, citing Montana in the Western Tradition “unique” Montana’s Corrupt and its 1912 Practices Act. experience political corruption lost-summarily, no less: But Montana holding presented in this case is whether question Citizens United to the Montana state law. There can be no applies Const., VI, does. U.S. Art. cl. 2. serious doubt See either arguments support judgment below Montana’s *6 United, in Citizens already rejected meaningfully or fail to were distinguish that case. Tradition, Thus,

Am. decision in 132 S. Ct. at 2491. this Court’s §2(4) Western cited at of not the law Tradition-prominently I-166-is clearly does, that imply, of this State. And for the text of 1-166 to and this Court’s decision Western in “uniqueness”argument Montana’s Tradition are still misleading. in false and The play patently in American Tradition unequivocally rejected Court Supreme “uniqueness” argument, applicability the of Montana’s Montana’s Act, contrary. Practices and this Court’s decision to the The Corrupt Court held that Citizens United to Montana. Citizens Supreme applies like United states associations, that and other j[c]orporations individuals, discussion, debate, to the and the dissemination contribute the to of information and ideas that First Amendment seeks foster.” (internal omitted). United, Citizens quotation 130 S. Ct. at 900 marks not, going Like it or this is the law of the land and Montana is to have comply with it.

II. False Promises Second, seemingly and a point promoting lost on those the 1-166 exercise, Supreme rely corporate “personhood” the Court did not on in its decision in Citizen Rather, United. Supreme Court relied on the first, propositions, expenditures (by person organization) that or an political second, communication are a form of “speech,” and hear, right] inquire, speak, [have “citizens and to use United, Citizens information to reach consensus.” 130 S. at Ct. added). (emphasis propositions It should be noted that these were Buckley created in Citizens United. v. Rather, they can be traced to Valeo, Bellotti, 1, curiam), (per U.S. 96 S. Ct. 612 765, Notably, Ct. in Supreme U.S. 98 S. 1407. Court observed Bellotti principal question

[t]he court below framed the in this case as whether and to what extent have First Amendment rights. posed wrong question. We believe that the court protects Constitution often interests broader than those of the Amendment, party seeking their vindication. The First in particular, significant proper serves societal interests. The question therefore is not First whether ‘have” and, so, Amendment if whether are coextensive with Instead, those of natural persons. question must be whether abridges expression [the issue] statute at the First protect. Amendment meant to was

435 U.S. at 98 S. Ct. at 1415. The Bellotti Court stated further speech “[t]he inherent worth of the in terms of its for capacity informing public source, depend upon identity does not of its association, corporation, union, individual,” whether 435 U.S. at 777, 98 S. Ct. at goes beyond and that ‘the First Amendment protection press the self-expression individuals toprohibit government limiting the stock which members from of information from public may draw,” 435 U.S. at 98 S. Ct. at 1419 (emphasis added). Hence, Court ground broke no new in Citizens United when it defined the constitutional protection speech from the perspective ‘tl]t of the listener. inherent the nature of the political process that voters must be free to obtain information from diverse votes,” sources order to determine how to cast their and the First *7 Amendment does not allow “the exclusion of a class of speakers from general public United, the dialogue.” Quite Citizens 130 S. Ct. at 899. contrary, the protects First Amendment the “open marketplace” of ideas, United, Citizens 130 S. Ct. at prohibits restrictions on political speech speaker’s United, based on the identity, Citizens S. Ct. at 902-03. Because voters must be free to obtain information sources, from diverse it is a violation of the First Amendment to expression by control distinguishing among speakers different and the subjects upon they may speak. United, which Citizens 130 S. Ct. at 898-99. The Supreme country’s Court held that this law and tradition require expression, less, United, more not Citizens 130 S. Ct. at and that “[w]hen Government seeks to use its full power, including the law, criminal to person may command where a get his or her or what hear, distrusted source he or she it uses information censorship United, to control thought,” Citizens 130 S. Ct. at 908 added). (emphasis undoubtedly proposition easier to sell It is “persons” persuade than it would be to beings”

are not ‘human fact, from may, in restrict the sources government electorate that the Yet, in terms of what these may get their information. which voters apparent difference. It is actually accomplish, there is world of two (by Congress and three-fourths proposition of the latter adoption needed to overturn Bellotti legislatures) of the state is what’s Any designed negate precedents amendment to these Citizens United. corporate expenditures to exclude from the definition would need Adopting under the First Amendment. protected “speech” former contrast, in “persons,” proposition absolutely nothing purposes-apart for First Amendment accomplishes wasting the electorate’s time and resources. from held, actually in of what Citizens United Viewed the context therefore, initiative, written, little presently it is evident that this many illegal-mot and an to hope more than a source of false for voters end-run the United decision. As futile-attempt mention Citizens that, attempt suspect first to do I that if the 1-166 with Montana’s challenged Supreme remains and is before the exercise ballot Court, summary rejection it will suffer the same as did this Court’s decision in Western Tradition. Charging congressional delegation obligation Montana’s to, offering among an amendment to the United States Constitution things, equally misguided

other United is an feel- overturn Citizens climate, good contempt. Realistically, today’s political exercise in (a nearly proposal impossible to amend the federal Constitution task circumstances) under the most favorable in order to overturn a wildly Supreme popular Court decision that is with at least one of the major major fringe and, with one of the political parties, parties, most importantly, very corporations already effectively with the control Congress proverbial has less of a chance at success than the snowball (the amendment) surviving has of in Hades. It is not going happen, attorneys public promoting and the officials candidly Leading 1-166 exercise would have to admit that. voters to only just disingenuous, plain silly. think otherwise is not but An arguably productive strengthening more focus would be on right disclosure laws. If information from voters have obtain choices, diverse sources order to make informed as the said, corresponding right Court has then also have a to know who providing ability judge credibility, the information and the motives, United, at agenda speaker. Citizens 130 S. Ct. 914. *8 assuming, discussion, Even for the sake that a federal constitutional adopted, amendment were to be such an amendment necessarily would have to amend the First Amendment itself-er even Const, “repeal”it, Eighteenth as was done to the Amendment. See U.S. (‘The XXI, amend. eighteenth article § of amendment to the Constitution of the United hereby repealed.”). States is The First Amendment, adopted protects religion, speech, five freedoms: press, peaceably assemble, and to petition for redress of grievances. Important here, for our purposes provides it that ‘Congress shall make no abridging So, law... speech.” freedom of if object of the 1-166 exercise Congress is to have change and the states this provision only so as not to permit corporate restrictions on contributions and expenditures, but “accomplish also to a level playing (see field in spending” 1-166, §3(1)), election then it necessary will be significant to make revisions to the First currently Amendment’s broad and unqualified protection of‘freedom ofspeech.’Tersonally, I like the First is, Amendment the way it I would not want anyone-especially politically polarized dysfunctional Congress-tinkering with it. only God might knows what come out of that effort.

III. Hypocrisy Petitioners’ As my observation, for third challenge, Petitioners’ legally while sound, would palatable be more if it were not palpably hypocritical. so As the 2011 session of the Legislature demonstrated time and again, there are some in that body esteemed apparently who believe it part job their descriptions propose adopt (and resolutions and bills2 issue press releases and other pronouncements) which effectively thumb Montana’s nose at the federal government and federal Tradition, law. See Western 71¶ (Nelson, J., dissenting). thinking Most Montanans view this grandstanding for actually what political is: pandering which accomplishes nothing substantive and which wastes the valuable state 2 partial listing (remove A of these sorts of resolutions and bills include: HJR1 gray endangered species list); wolf from (opposing designation HJR4 of national Montana); monuments without (urging consent from the Congress state of SJR4 adopt budget amendment); (regarding balanced lands); SJR6 the use of federal SJR7 (opposing Act); definitions in the federal (regarding Water Pollution Control SJR12 oil gas development lands); and accountability); sheriffs); lease (providing federal HB414 for federal mandate (requiring SB 114 federal county law enforcement to communicate with lands). (providing authority SB254 state eminent domain for federal Ironically, SB404, required a bill analysis that would have of bill draft requests, died in committee. *9 Yet, here officials involved. limited time of the elected

resources and indignation rising up righteous Petitioners are in court with we there is no shame. Apparently same sort of 1-166exercise. against As regret. or require does not contrition then, right, to be the law But correct. noted, legally Petitioners 1-166 is a arguments: five meritorious Petitioners advance in a elected officials to vote

resolution, law; requires a 1-166 not manner; compelling 1-166 is a resolution predetermined particular an amendment to the delegation propose to congressional Montana’s Constitution; subject; more than one and 1-166contains United States Attorney General do not approved by prepared the statements however, satisfied, that the first I am requirements meet the of law. facially this case. The 1-166 exercise is sufficient to resolve argument III, My analysis Constitution. Article Section 4 ofthe Montana violates is focused on this issue. below Requirements Comply Does Not with Constitutional

IV. 1-166 stated, recently judicial review of pre-election As this Court conducted, to and routinely protect so as initiatives should be rights Montanans have reserved themselves preserve which through process. the initiative change the laws or the Constitution 111, 59, 92, State, MT 365 Mont. 278 P.3d 455. Reichert v. 2012 ¶ However, defective right patently this Court reserves the to declare Reichert, Murray, v. (citing invalid. 59 State ex rel. Steen measures ¶ (1964), 61, 69, 761, Harper State ex rel. v. 144 Mont. 394 P.2d 765 Waltermire, 425, 428, 826, (1984), Harper 691 P.2d v. 213 Mont. (1988), 259, 268, 650, v. Greely, 234 Mont. 763 P.2d and Cobb (1996)). 268, Indeed, State, 924 P.2d we have 278 Mont. defective, facially placing a measure is it on the ballot held that where a nothing voters’ and instead “creates sham out protect does that a voting process by conveying appearance the false vote on in fact measure is invalid something, the measure counts for when Reichert, the electors vote.” 59. regardless how (the foremost, complete and the 1-166exercise text of which First Dissent) does not the enactment propose is attached at the end of this Indeed, readily and any repeatedly law. as the General concedes, stating “policy” exercise is framed in terms of a and the 1-166 elected “philosophy”and “direct[ing]”and “charging]”Montana’s then “carrying “promoting]” officials with and out” appointed and 1-166, 3, policy philosophy See 4. The policy philosophy. §§ constitutional “corporations beings are not human with dictate making prohibited be ‘from rights,” should campaigns on the of candidates or expenditures contributions to or issues,” should field in playing ballot that there be “alevel election noted, already spending.” propositions As these contradict §3. Furthermore, well-settled federal constitutional law.3 the initiative Montana’s charges congressional delegation “proposing joint with offering resolution an amendment” to the federal Constitution which beings are not human with establishes rights, corporate campaign which establishes that contributions and “a expenditures prohibited, playing be and which achieves level sum, field in In does spending.” election 1-166 exercise not enact or repeal existing purport new law-mor does it to do law even so. Rather, simply charges officials at appointed elected the state violating already level the Supreme law established Court congressional delegation and our at the level with pursuing federal only misguided, course of conduct that is also virtually but certain if exercise, adopted, change law; fail. The 1-166 even cannot federal *10 law; change change any does not state and it does the not law of Rather, sister simply state. the 1-166exercise into the does wind what most Montana children to early learn avoid in life. III, point, More the Article 4 of

¶30 Section the Montana people Constitution reserves to the right of this State the to “enact by laws initiative on except all matters of appropriations money and special local or A is “a expression laws.” ‘law” solemn of the will of the power of supreme 1-1-101, the state.” Section MCA. ‘The will of the (1) supreme power by: constitution; is expressed the statutes.” 1-1-102, “policy” Section MCA. Whereas a represents general ‘ft]he by principles government which a is guided management in its affairs,” public “regime the ‘law” represents the actual that orders human activities through systematic and relations application of the politically organized society.” force of Dictionary Black’s Law 1999). (Bryan ed., ed., A. Garner organic 7th West ‘The law is the government constitution of altogether written. Other written laws are denominated statutes. The written law of this state therefore contained in its constitution and statutes and in the 1-1-105, constitution and statutes of the United States.” Section MCA. which affect corporations public Statutes create and statutes. 1-1-106, recognizes Section MCA. The Code also the decisions of this country’s 1-1-107, -109, -108, courts as law. Sections MCA. respect playing policy, rejected With to the ‘level field” the Court has “ government may society speech ‘that notion restrict elements of of some our ” United, in order to enhance the relative voice others.’ Citizens 130 S. Ct. at 904 649). (quoting Buckley, 424 U.S. at 96 S. Ct. at people to the III, 4 reserves already, Article Section As noted Montana’s blackletter Clearly, initiative. by citizen

right to enact laws including “policies” “philosophies”that not define law”as law does government wish the group interest party special or one III, empower Section 4 does not Article pursue. officials to elected governmental or to direct philosophies, or enact pass policies people fact aside the philosophies-setting policies such pursue officials federal actually violate established that, here, direction is to such by laws power The to enact precedent. law and what amounts to power include the to enact process does not initiative P.2d at 828-29. Mont. at Harper, 213 legislative resolution. feel-good exercise is-a And, that is all the I-166 charitably speaking, government the federal contempt against directed expression of enacted, exercise would Even if the 1-166 federal constitutional law. not be a law.” that 1-166 could meager assertion Attorney The General offers statement, merely a statutory enacting policy as “a

be read throughout resolution,” “[s]tatutory statements occur policy and that 2-15-142, MCA, an Attorney General cites § the Code.” however, 2-15-142, MCA, enacted citizen was not example.4 Section Legislature itself. See Laws initiative. It was enacted Montana, 2003, making argument, In this ch. §2. the issue here is not whether recognize fails to

General It is “statutory policy statements.” Legislature power has the to enact initiatives. power in the form of citizen whether citizens have Const, Ill, is limited power Mont. art. Their Plainly, do not. §4. laws,” “statutory statements.” enacting policy assume, the 1-166 argument, if for the sake of Even we law,” there is another proposal exercise constitutes initiative to obvious facial problem fundamental that condemns the that a unconstitutionality. firmly principle It is a established of law *11 ordinary give person its face if it fails to a statute or law” is void on conduct is forbidden. No intelligence contemplated fair notice that his contemplated his required speculate to as to whether person should be subject Taylor, criminal State v. penalties. of action be course 202, 29, 499, 5 P.3d 1019. 2000 MT 300 Mont. guiding principles agencies when to consider certain This statute directs state policies

formulating implications. implementing rules that have direct tribal or administrative 2-15-142, MCA. Section Here, First, problem appointed is manifest. if an elected or ‘law,” can public person official violates 1-166 as then that be 1-166, prosecuted (stating for a misdemeanor crime. See that the §8 codified initiative is ‘Intended an Title and integral part to be as initiative); 13-35-103, provisions apply of Title 13 to” the MCA § (stating knowingly that person provision “[a] who violates penalty specified election laws of this state for which no other is is misdemeanor”). Second, guilty of a and more problematic, is ‘law,” reasonably clear require. what as would §3(1) initiative, in Under order to effectuate the policy (a) (no philosophy that are not beings human court has (b) (the were), ever said are not entitled to constitutional (c) Supreme they are), Court permitted has said should not be campaign make or expenditures against contributions for or (the Supreme candidates and ballot issues they may), Court has said elected and appointed officials in Montana are “charged promote accomplish actions that a level playing spending.” field election §3(2) “general” Some directives then follow at which are in the nature policy nearly which, statements-and all of again, rejected have been example, policy Court. For these statements include money speech; is not that constitutional rights belong to human beings, corporations; corporate use of wealth is corrosive and distorting; there should playing be level field in campaign spending; and that ‘large” there should be limits on contributions to or expenditures any for the benefit of campaign by any source. If the ‘law,”how 1-166 exercise were to be construed as an actual any would public ordinary official of intelligence have fair notice that his or her (or act) contemplated unlawful, act failure to so that he or she could violating avoid being subjected the law and possible criminal public sanctions? The regard official’s task in this virtually impossible. outset, At the in order to comply supposed with the 1-166 ‘law,” public law, official will have to violate extant federal already Then, discussed. public official will have to make sense of amorphous vague terms, I-166’s phrases, and conceptsdncluding field,” playing ‘large” ‘level contributions and expenditures, “promoting”actions accomplish the stated policies. provides 1-166 guidelines, definitions, no no parameters. What, and no example, for ‘large” is too a campaign $10,000? $5, 000,000? contribution? $300? Maybe large is too County, $5,000,000 $300 Teton but is not too large in County. And, what, Yellowstone exactly, Who knows? is the supposed official ‘large”campaign How, to do about a too contribution? exactly, is the public playing official to ‘level the field”and reduce the *12 aggregations of effects of ‘immense” distorting” and

“corrosive corporate wealth? Taw,”a correctly fails to public official who Assuming 1-166 to be

¶36 the offense of may subject prosecution for these terms be interpret Likewise, if a member of Montana’s “promote” policy. I-166’s failing to encourage promote the futile delegation does not congressional discussed, offending heretofore senator amendment But is may charged with a misdemeanor. representative be included-really enough to believe anyone4;he Attorney General naive argue in the extreme to grief! Good It is ludicrous happen? this could 1-166, Taw,” give any public official fair notice what as would 1-166, Taw,” may not do. as direct supposed he or she is to do or While proposition right-it gives in its own people how to think-a dubious fair notice at all of how to act a fashion so as avoid them no Thus, if the result from its violation. even penalties criminal purposes saving deemed a Taw” for proposed 1-166 exercise is III, facially, unalterably, under Article Section initiative inseverably vagueness. void for constitutional with the Court’s decision I understand the frustration in Citizens United. understand ability I the frustration legislative America to control elections and and executive corporate I government. branches of state and federal And understand the knowledge corporate frustration with the certain that soon America judicial government will be in control of the branch of as well. However, accomplish nothing, at a will shooting popcorn brick wall good. change if it makes one feel Those who aim to the situation even going get gun. to have to a different sum, right patently In this Court reserves the to declare defective Reichert, measures invalid. See Indeed, and cases cited therein. ¶ very recently placing facially held that we have defective measure nothing to protect ballot does voters’ and instead creates a voting process conveying appearance sham out of the the false something, a vote on the measure counts for when in fact the measure Reichert, regardless the electors 59. That is the invalid how vote. sham; nothing case here. The 1-166 exercise is a it is but an exercise in feel-good contempt government of the federal and federal law. seeks, rather, does not to enact It proposed initiative seek Taw.” Therefore, political policies philosophies. enact unenforceable constitutionally a ballot measure proposed 1-166 exercise cannot be III, if, And under Article Section of Montana’s Constitution. even assuming argument, for the sake the 1-166 exercise is deemed to be a ‘law,” proposed facially, unalterably, the ‘law”is inseverably void vagueness. for constitutional Approach

V. The Court’s matter, my As a final I note disagreement with the Court’s *13 conclusion that grant we cannot relief. The Court Attorney

¶40 concludes that ‘legal General’s sufficiency” §13-27-312(7), determination is limited MCA, under to a non-substantive review of language. the ballot Opinion, 6. To the contrary, the plain language of ‘legal this statute defines sufficiency” to mean “that the petition complies statutory with and constitutional requirements governing submission of the proposed issue to the above, electors.” As discussed the problem here is that the citizen- initiative process is III, available under Article Section 4 of the Const, §4(1) Montana Constitution only to enact Ill, ‘laws.”Mont. art. (‘The people may enact laws initiative on all except matters appropriations added)). ofmoney and local or special laws.”(emphasis This process constitutional is not available people to have the enact “policies” and philosophies and to charge public officials with (at encouraging law) misguided, impossible, and least under federal patently illegal (1) acts. All that the 1-166exercise purports to do is set policy forth a and direct elected and appointed officials promote to policy. 1-166,§§3,4. that See Accordingly, the 1-166exercise on its face does not “compl[y] with ... constitutional requirements governing submission of proposed electors,” issue to the and the Attorney General should rejected have the measure being facially §13-27-312(7), unconstitutional under MCA. Presumably, under the Court’s approach, if some group got

sufficient signatures put to on the ballot an initiative which adopted policy a philosophy that, and contrary Loving Va., v. 388 U.S. (1967), S. Ct. 1817 Caucasians should not inter-marry with Native Americans or African Americans and which charged state and local officials with working diligently carry out policy, then, that long so as the General found no fault with the language, ballot this patently and facially unconstitutional measure would put have to be to the vote. I agree cannot with such a cabined and absurd interpretation §13-27-312(7), MCA.

VI. Conclusion Based on the foregoing, I would grant the petition Petitioners’ and Secretary order the of State not place 1-166 on general the 2012 already printed with or, have been if the ballots election ballot measure, the votes. not to count I dissent. (1-166) NO. 166

BALLOTLANGUAGE FOR INITIATIVE NO. 166 INITIATIVE LAW BYINITIATIVEPETITION A PROPOSED policy corporations a are not entitled to Ballot Initiative 1-166 establishes state beings, charges elected constitutional because are not human Montana officials, federal, With appointed implement policy. policy, state and this campaign people playing of Montana establish that there should be a level field in part corporate campaign expenditures spending, by prohibiting contributions Further, limiting political spending congressional delegation Montana's in elections. charged joint offering an proposing with resolution amendment to the United States establishing beings are not human entitled to Constitution rights.

[] officials, federal, charging appointed FOR elected and state and with implementing policy beings are not human *14 constitutional [] federal, charging appointed officials, AGAINST Montana elected and state and Implementing policy corporations beings are not with human rights.

537 THE COMPLETETEXTOF INITIATIVENO. [166] (1-166)

BEIT ENACTED OF THESTATEOF MONTANA: BYTHE PEOPLE "Prohibition on NEWSECTION.Section 1. Short title. Corporate Contributions and (Sections Expenditures be through 4] may in Montana Elections Act." cited as the to a that: from elections; campaigns opinion Partnership, campaigns; as follows: spending spending would be over 100 compete against the corporate-sponsored change impact Montana; political speech rights Citizens being challenged expenditures on candidate elections Is also Montana has individual Montana citizens. corporate targeted candidate, using corporate (2000). on the Montana (b) (c) corporate independent NEWSECTION.Section 2. Preamble. The (1) (e) (a) examples (d) unlimited (f) clearly (3) (2) United v. years is still a vital interest from other effectively Montana's 1996 since was with the Infusion of In 2011 the dynamic Inc. v. contributions to and 1996, prohibited corporate Montana's 1912 corporate have made their 226 F.3d Argenbrlght, invalidated Montana Chamber Commerce v. 1912, through FEC, 2011MT Attorney General, by passage of local shut out of sources; of well-financed corporate money funds to make contributions to or impact Montana political process power U.S._, prohibition average citizen candidate In Montana would be unable to of unlimited prohibition unlimited of Initiative No. passage modest election contributions that can be expenditures spending on Montana ballot issues has far exceeded contributions to and process; people corruption beings. with those of human political on into corporate corporate corporate on Court, candidate, S.Ct. 876 candidate elections would exerted with unlimited inevitably corporate Corrupt office Montana; on candidate people in its abound in involving corporate money upheld money prohibited Montana donations creates a (2010). contributions to ballot issue races; and Montana decision, Practices Act minimizes the impact of contributions to and expenditures of the state of Montana find expenditures In Montana's 1912 This decision under the support campaigns, stating meaningfully count, Western Tradition citizens, corporate on on candidate of or irrevocably initiative, holding dominating ballot issue equated opposition prohibition who for political its *15 Montana that each It Is of the state of Policy. (1) policy NEW SECTION. Section 3. level, acting on a state or federal Montana, whether appointed and official In

elected beings with constitutional are not human that philosophy advance the to act to charged prohibit, official is appointed such elected and rights and that each on the expenditures contributions to or making from possible, corporations whenever and policy, each such elected part or ballot issues. As of this of candidates campaigns actions that a level charged promote accomplish is official in Montana appointed spending. field in election playing (1), Montana's elected and under subsection (2) carrying policy When out the as follows: generally officials are directed appointed property, speech; regard money of Montana (a) people that the United States regard rights under (b) people that the of Montana rights corporations; beings, human of Constitution as of wealth that is aggregation the immense regard that of Montana (c) people government to be advantages by the using provided by corporations accumulated interests of corporations; distorting political when used to advance corrosive be a level field playing of Montana intend that there should (d) people wealth, their individuals, regardless express that allows all spending in campaign government; and their views to one another campaign that a level field in playing of Montana intend (e) people large and limits on campaign expenditures on overall spending includes limits source, any campaign by any for the benefit of expenditures contributions to or individuals, political committees. including corporations, appointed elected or officials. policy NEW SECTION. Section 4. Promotion of joint a congressional delegation charged proposing Montana's is with (1) constitution that accomplishes an amendment to the United States offering resolution following: ruling Court's in Citizens United v. Federal (a) overturns the U.S. Commission; Election rights; beings are not human with constitutional (b) establishes corporations, expenditures contributions or (c) campaign establishes any at level issues, prohibited by political body be whether to candidates or ballot government; achieving playing In a level field (d) goals Montanans accomplishes spending. election bring charged diligently to work congressional delegation Montana's discharge petitions, use of passage, including to a vote and joint resolution such passage. method to secure a vote and cloture, procedural other every given opportunity, if legislature, of the Montana (3) The members constitution that United States charged ratifying any amendment state of Montana. policy consistent with the *16 Saving [Thisact) NEWSECTIONSection 5. clause. does not affect matured, penalties incurred, proceedings begun duties that that were that were [the act.) before effective date of this Severability. part [this act) invalid, NEWSECTION.Section 6. If a all valid parts part [this act] part that are severable from the invalid remain in effect. If a applications, part invalid in one or more of its applications remains in effect all valid applications. that are severable from the invalid [This act] upon NEWSECTION approval by Section 7. Effective date. is effective the electorate.

to sections intended to be codified as an Codification instruction. Sections NEWSECTION.Section 8. [1 through 4]. integral part of Title 13 and the provisions [1 through 4] Title apply

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