*1 ALAN NICHOLSON; JERRY CALVERT;
MONTANANS FOR RESPONSIBLE unincorporated an GOVERNMENT, association; MONTANA EDUCATION corporation; ASSOCIATION, a Montana MONTANA FEDERATION OF TEACHERS, a
unincorporated association; MONTANA FEDERATION OF STATE EMPLOYEES, an
unincorporated MONTANA association;
PUBLIC EMPLOYEES ASSOCIATION/EMPLOYEES POLITICAL INFORMATION COMMITTEE, Montana corporation; AMERICAN OF FEDERATION
STATE, AND COUNTY, MUNICIPAL EMPLOYEES/MONTANA COUNCIL NINE, an
unincorporated association affiliated with County, American Federation State, Municipal Employees; ASSOCIATED OF
STUDENTS MONTANA STATE unincorporated UNIVERSITY, association; MONTANA STATE UNIVERSITY FACULTY
COUNCIL; ASSOCIATED STUDENTS OF
EASTERN MONTANA COLLEGE, an unincorporated association; MONTANA LOW corporation; INCOME COALITION, a Montana and ASSOCIATED STUDENTS OF THE
UNIVERSITY OF MONTANA, Appellants Cross-Respondents, Plaintiffs,
v. Secretary MIKE COONEY, State the State ROBERT Montana; G. NATELSON, individually Chairman of MONTANANS
FOR BETTER GOVERNMENT, P.A.C.; MONTANANS FOR BETTER GOVERNMENT, group, registered
P.A.C., a citizens aas political committee, Respondents Defendants, Cross-Appellants. No. 93-657. May
Submitted on
1994.
Decided June
*2
St.Rep.
409 Opinion JUSTICE HARRISON delivered the of the Court. is an action to declare unconstitutional 112 and This Referendum suspension prior of 1993 634 to a referendum Mont. Laws vote. District, the First District Court for Judicial Lewis and Clark County, granted summary judgment in favor defendants. appeal, Secretary Cooney and defendant
Plaintiffs State Mike affirm. cross-appeals. We
The issues are: concluding
1. Did the District Court err in II V Counts and ofthe complaint 3-5-302(6)(a), amended were not time-barred under MCA? § 2. suspension Chapter pending Does the a referendum vote deny equal protection of the law violation of the Fourteenth II, Amendment the United States Constitution Section 4 of the Montana Constitution? suspension
3. Does Chapter placed the state’s budget balance, VIII, out of violate Article Section of the Montana Constitution? Chapter
4. Does appropriations 634 constitute an measure on which a referendum vote is prohibited? Chapter Does 634 constitute a surrender and
suspension of the taxation power in violation of Article 2 of the Montana Constitution? legislature Montana enacted a revision ofstate income corporate measure,
tax and tax laws. The 1993 Mont. Laws 634 634), (Chapter increases the income tax burden on some individual taxpayers reducing others, while it on corporate increases minimum taxes, imposes graduated tax corporate purposes rates. The the measure raising general operation include revenues for the government balancing state budget. state’s adopted Had Montana a proposed percent general voters four sales primary election, tax at the June Chapter 634 would been have repealed beginning January 1994, and the sales tax would have However, taken effect that time. rejected the voters the sales tax. Therefore, legislature, under adopted by the scheme *4 remained in effect. 1993,
During the summer of defendants Natelson and Montanans for Better Government circulated petitions support ofReferendum place Chapter in order to the ballot in the November 1994 III, general pursuant election to Article Section 5 of the Montana 3, 1993, September Secretary On Constitution. defendant of State petitions to Governor that he had received Cooney Mike certified the to on the ballot at containing signatures place Chapter 634 sufficient Cooney certified to September On defendant election. containing sufficient petitions the that he had received Governor vote on signatures require of 634 until the suspension (2) of the Constitutional to subsection pursuant Referendum power. referendum legislature into calling the proclamation
The issued Governor stated that special Among things, proclamation other session. inoperative, 634] [Chapter provisions has made its “the budget state’s thereby making virtually impossible it balance the legislative action.” without declaratory judgment for on October
Plaintiffs filed this action Court, special pending it the District 1993. While was before session in legislature began. By special the close of the session appro- made cuts in legislature December had substantial budget. priations in order to balance I counts. Counts complaint amended contains seven Plaintiffs’ constitutionality Referendum 112. Count through challenge VI part and Montanans alleges VII fraud on the of defendants Natelson this hearing giving appeal, rise to for Better Government. At the relating claims the constitutional- District Court heard those claim, ity fraud Count VII of Referendum Plaintiffs’ hearing at a later date. possible complaint, amended was reserved twenty-four analyzed thoroughly Court the issues The District constitu- plaintiffs’ Beforeit reached the page memorandum and order. Cooney rejected arguments, argument it of defendant tional The court then portions complaint were time-barred. the amended arguments, up- rejected constitutional plaintiffs’ considered and all of case. constitutionality process the referendum holding the v * * power which of the referendum requires This case reexamination 1906, when since Montana have reserved themselves people of the Montana Constitution. See adopted by it first amendment to (1889). provision of V, referendum Const. The Art. Sec. Mont. provides: present Montana’s Constitution (1) by may reject or referendum people approve Referendum. money. A legislature except appropriation act legislature upon shall held either order referendum be electors percent qualified ofthe petition signed at least five upon *5 legislative in at representative each of least one-third of the signers percent districts. The total number must at of be least five qualified of the A petition electors the state. referendum shall be secretary filed with the state no later than six months after adjournment of legislature passed the act.
(2) An act referred to the is in effect until people suspended petitions signed by qualified percent at least 15 of the in electors a majority of the representative districts. If so sus- pended act operative approved shall become after it is election, the result of which has been determined and declared provided by law. Ill, Art. Sec. Mont. Const. interpreting provision, guided by principle this we are that
“initiative and provisions referendum of the Constitution be should broadly maximum construed to maintain the in power people.” County 373, 378, Chouteau v. Grossman 172 Mont. 563 P.2d mindful, 1128. We are also in considering appeal, this of the first provisions two substantive the Montana Constitution. Article II, Section provides:
Popular sovereignty. political power All is vested government right derived from the people. originates All with people, upon only, founded solely their will and is instituted for good of the whole. II, 2, provides:
Self-government. The people right govern- have the exclusive ing free, themselves as a sovereign, independent They state. may alter or government abolish constitution and form of they whenever necessary. deem it these principles mind,
With we now consider the on issues raised appeal.
Issue Did the concluding District Court err in II that Counts and Y of the complaint 3-5-302(6)(a), amended were not under time-barred MCA? § plaintiffs’ II complaint allege Counts and V of amended that there are prohibitions against putting Chapter constitutional vote, a public which claims suspension do not involve the issue of prior Secretary Cooney the law argues the election. of State 3-5-302(6)(a),MCA, these complaint counts of the are barred under § days because the claims raised therein not filed within 30 were after Governor, the ballot issue certified September on Natelson and Montanans for September On defendants declaratory petition judgment filed Better Government Responsible They as defendants Montanans for Gov- Court. named P.A.C., Montana, for a declara- ernment, and the State of and asked placement 634 and its on tory judgment provisions. constitutional the ballot did not violate federal state Court, filed the same responses to order ofthis were counsel Pursuant plaintiffs and the appear present who case behalf Secretary Court dismissed the action for decla- Montana of State. This discussion, 14,1993. on October ratory judgment, without substantive *6 later, above, days present action was filed four on As stated the 18,1993. ruled that the statute limita- October The District Court complaint equitably as Counts II and V of the amended tions to during pendency declaratory judgment of the action. tolled the tolling of a statute of limitations equitable
The doctrine of good pursues possible in faith one of several applies when a claimant (1) timely to legal three criteria: notice remedies meets filing limitations in applicable statute of party adverse within (2) gathering in claim; prejudice party lack to the adverse first (3) claim; faith and against good evidence to defend second by filing in the second claim. Harri reasonable conduct the claimant (1990), Cooney 244 797 P.2d son v. Chance Mont. any concerning the three criteria listed in not claim deficiencies does Rather, tolling is not equitable he asserts that available Harrison. who filed the “first plaintiffs were not the ones here because in He claim,” declaratory judgment this Court. cites the action for (1988), P.2d in which this 233 Mont. 760 Erickson v. Croft describing tolling as avail equitable case quoted Court a California and, legal remedies reason injured person an has several able where faith, good pursues in one. ably and case, has been persuasive. is In this there
Cooney’s argument not The party. plaintiffs showing prejudice no of lack of notice or of after the action for promptly in District Court filed this action instance, In this declaratory dismissed this Court. judgment was bypass the District Court attempted where some defendants Court, and where this Court filing original proceeding in this issues, impose we not arguments will responses ordered second-guessed that the plaintiffs a that the should have requirement ultimately be dismissed. in this Court would action because penalized should not be plaintiffs conclude the We to have this Court of the defendants attempt by some premature resolve the same or in similar issues those raised this action. We hold that the District did err in II ruling Court not Counts time-barred, V of the complaint amended are not under the doctrine equitable tolling. Issue suspension Chapter Does a referendum vote pending deny equal protection of the in law violation the Fourteenth II, Amendment the United States Constitution and Article 4 of the Montana Constitution? argument upon interpretation
Plaintiffs’ is based their of several cases, reapportionment notably Reynolds most v. Sims 533, 84 1362, 12 Reynolds U.S. S.Ct. L.Ed.2d 506. was a case concern ing apportionment legislative legislature. districts for Alabama Despite Alabama’s requirements legislative constitutional repre sentation population based on and for reapportionment, decennial the 1900 census existing still formed the basis for the state apportionment complaint Reynolds when the was filed. complaint alleged serious against discrimination voters coun populations grown ties whose had proportionately more than others since the 1900 census. affirming holding that plaintiffs had proven Equal Clause, violation of Protection the Court stated:
[Representative
government
self-government
essence
through
representatives
the medium of elected
people,
every
each and
right
citizen has an
to full
inalienable
and effective
*7
in the
participation
political processes of
legislative
his State’s
body.Most
participation only
citizens can achieve this
qualified
as
through
legislators
voters
the election of
to
Full
represent them.
and effective participation by
government
citizens
state
re-
therefore,
quires,
that each citizen
an equally
have
effective voice
in the
legislature.
election of
of his state
members
Reynolds,
565,
Plaintiffs that suspension Chapter through the of 634 the minority initiative aof small of principle. They electors violates this minority “[i]f maintain that negate a can act out a carried through body representing will majority, of the the principles — equal of representation upon which our state federal both — governments rest are void.” rendered case, authority by plaintiffs
The cited dispositive is not of this cases, argument persuasive. nor is their reapportionment Unlike the legislative process. is not case to concerning a access Nor have 414 equal protection
plaintiffs requirement met the under traditional segment demonstrating population class or ofthe analysis that process. out” has been “fenced of the referendum Here, provision, majority, through a constitutional referendum majority The granted minority. to a affirmatively powers has certain power provision referendum from the retains the to eliminate the it or amend to increase numbers Montana Constitution to suspend to a a signatures put needed referendum on ballot nothing is in the through process. “[TJhere the referendum law Constitution, requires that history, our or our cases language of the v. Lance majority always prevail every issue.” Gordon that 273, 29 L.Ed.2d 276. 403 U.S. 91 S.Ct. yet process not Additionally, critically, the referendum All will have the complete present in the case. Montana voters general Chapter to vote on the November opportunity election will decide the majority of the voters that election. compa- Therefore, is not Chapter process the referendum fate power rable, attempt argue, given to a veto to small plaintiffs group. III, expresses the
Article Section 5 of the Montana Constitution allowing referenda majority in Montana on the matter of will allowing which placed on the laws to be ballot did not err that the District Court people. are referred We hold any violation of failed to demonstrate ruling plaintiffs have protection under the law. right equal their
Issue the state’s placed suspension Chapter Does the VIII, 9 the Montana balance, Section of budget out of violate Article Constitution? provides: the Montana Constitution not shall ex- budget. legislature Appropriations
“Balanced budget point out that Montana’s anticipated revenue.” Plaintiffs ceed suspended, because when 634 was went out balance significantly ex- legislature then made the 1993 appropriations They argue that anticipated revenues for biennium. ceeded the budget balanced provision with the harmonizing the referendum are general revenue bills off requires provision a conclusion *8 process. limits to the referendum VIII, disagree. places
We a restriction Section 9 on the legislature, it people. not on the The contention that is inconsistent provision groundless. in operation with this case is in calling The reaction of the executive and branches a special legislature session of the deal with an unforeseen decline (or in expenditures) might prompted revenue increase in been have See, e.g., of causes. State v. Erickson number Mont. Calling special 19 P.2d session to reconcile expenditures anticipated entirely with revenues was proper. The purpose ofthe budget provision fully compatible balanced therefore operation with of the referendum process.
We hold ruling plaintiffs that the District Court correct in that have shown no violation of Article Section 9 of the Montana Constitution.
Issue Does Chapter appropriations 634 constitute an measure which prohibited? referendum vote is (1) argument This refers prohibition to the in subsection may referendum clause: “The people approve reject by or referendum any act of legislature except appropriation money.” (Empha- added.) plaintiffs argue sis The 634 constitutes an appropriation general of money because it is a revenue measure “inextricably which is appropriations legislation tied” to and is used to balance budget. They Montana’s state contend that the referendum provision isolation, cannot in be read but must be harmonized with other provisions, including constitutional re- budget balanced quirement discussed above. cite cases in courts Plaintiffs which in Maryland and Michigan interpreted meaning have word “appropriation” as in used their state constitutions in relation to specific referenda measures those states. “appropriation” definition of under the provision above limited. quite
Montana’s Constitution is Along well-established line of Montana “appropriation” cases has established that refers authority expend money to the given legislature from the treasury. state
“Appropriation” authority law-making body means an from the legal apply money may form to sums out be treasury given year, objects in a specified against demands the state. *9 (1921), 78, 195 P. 845. See also Board
State v.Dixon 59 Mont. Judge v. 168 Mont. Regents Higher Education of P.2d stated, case,
In present the District Court expenditure use or Chapter Since 634 does not relate the actual appropriation an act for the money, the Court concludes it is not therefore, the referendum money, and it is not excluded from process. pure agree 634 is a Chapter
We with the District Court. measure, revenue-raising provisions contains no and debated, offered, upon separately from expenditures. Itwas and voted legislature. by Montana We appropriation bills considered the 1993 measure Chapter appropriations hold that 634 does not constitute an prohibited. a referendum vote is which Issue 5 Chapter 634 constitute a surrender suspension Does suspension power of the taxation in violation of 2 of the Montana Constitution? of the Montana argument, provision refer to the plaintiffs surrendered, power tax never be “[t]he
Constitution that shall away.” specific that this argue or contracted Plaintiffs suspended, people suspend prohibition general right of the controls over They legislation power. argue also the effect of under the referendum power of the tax that Referendum 112 has resulted in surrender minority to a small of Montanans. cases from two other plaintiffs
As Issue have cited under have been provisions in similar state constitutional states power reserved interpreted in relation to exercises of the referendum language Because conclude that people to the of those states. we extend, face, adopt, decline to is clear on its we our Constitution ofthe Montana reasoning language ofthose to the apply cases and to the facts of this case. Constitution taxing and the distinguish a tax measure Plaintiffs fail to between taxing suspension no power. There has been surrender or merely resulted in power; Referendum 112 has exercised. As by taxing power is measure which the referral of one collecting out, is still Montana pointed District Court the State of 634, if so; the voters taxes, Chapter to do under and will continue to the it, prior in or under the law existence approve that the reject it. hold if the voters We enactment of have plaintiffs prohibition failed to establish violation of against suspension taxing power. or surrender of the
Affirmed.
CHIEF JUSTICE and JUSTICE concur. TURNAGE WEBER in part part: JUSTICE NELSON concurs and dissents through While I concur the Court’s discussion Issues 2 opinion issues, with the result respectfully reached its on those I dissent from the discussion on Issue and from the conclusions expressed therein. I II plaintiffs’ would hold that Counts and V of complaint amended are applicable time-barred reason limitation, 3-5-302(6)(a),MCA, which, pertinent statute of part, § requires that:
a... contest of ballot issue submitted ... referendum bemay prior brought it days election if is filed within 30 after *10 the date on which the governor, issue was certified to the as 13-27-308,.... provided in
Here, undisputed is plaintiffs’ it that complaint was not filed within days 30 after the date governor. on which the issue was certified to the It also undisputed absolutely legal that there was no reason or bar prevented that would plaintiffs have from filing complaint their period by within the time Importantly, allowed the statute. the petition Natelson/Montanans for declaratory Better Government judgment original filed proceeding in and dis- subsequently (Natelson action), missed this Court way prevent did not in or prohibit timely filing the plaintiffs’ legitimate complaint, and no argument contrary has been advanced here. outset, I
At the past, note that this Court has in the looked disfavorably on pre-election attempts to invalidate ballot issues and required procedures has strict with compliance and time limits statutorily challenges. mandated legislature mounting such See, (1986), 230, 234, State ex rel. Boese v. Waltermire 730 Mont. 375, replete P.2d 377-78. Given that election are Montana’s laws with deadlines process, only numerous strict governing election it protect process makes sense to the administration of that and the disruptive litigation might ultimately election itself from serve right to people frustrate the to vote. why
No sound reason has been advanced here as we should back away general principle. invoking from that the doctrine of While tolling may applying when equitable appropriate be doctrine underlying would policies purposes effectuate the the statute (Ariz. see, 1985), 1327, 1331, limitations, 700 P.2d Hosogai v. Kadota cases, actually invoking encour challenge the doctrine pre-election purposes policy challenges and tends to defeat the ages such challenges. restricting the statute of such behind may important and Notwithstanding plaintiffs’ claims be interesting, law, explicit. By of limitations is the letter of
[t]he statute filing plaintiffs’ fatal to claim. We will not resurrect late the court.... properly brought which was not before complaint just of limitations does not discriminate between statute public unjust represent claim. The statute does potential litigants. balancing In policy controlling rights [30 rights, legislature placed precisely the fulcrum these — more, no days] no less. (1987), 533, Mont. Champion v. Builders Co. Home Schaffer (statute plaintiffs’ 536-37, 747 P.2d of limitations barred late.) day filed With wrongful death and survival actions when one mind, alter, judicially principle in we have been reluctant actions, change statutory limits for the commencement or lessen See, 874, expand tolling doctrines. Bestwina Schaffer, 747 P.2d at or Mont. 767 P.2d Village Bank v. case, the basis on which we have chosen Accordingly, the instant — — equitable tolling is not ignore of limitations statute below, unsound, but, having also distorted as discussed
judgmentally itself, legally its in this case is application elements ofthe doctrine insupportable. (1988), 233 Mont. 760 P.2d we v. Erickson Croft case, recognize did not
discussed, but, on of the facts ofthat the basis Citing from other tolling. case law adopt equitable the doctrine *11 as follows: the of the doctrine jurisdictions we described elements relieving general policy which favors have adhered to [C]ourts when, possessing of a limitations statute plaintiff from the bar faith, he, in reasonably good pursues legal remedies several damage. or injuries of his designated to lessen the extent one added). (Emphasis
Erickson,
The three referenced men- in case were also equitable tolling the instant applicability in the are, unfortunately, misstated Those criteria in Erickson. tioned (1983), City Pasadena Erickson, citing Collier v. opinion here. Cal.App.3d 917, we listed the three Cal.Rptr. requirements as follows: (1) timely applicable [within notice statute of to defendant claim; in filing
limitations] the first (2) prejudice gathering lack of in evidence to defendant claim; against defend the second (3) good plaintiff filing faith and reasonable conduct added.) (Emphasis second claim.
Erickson,
While
to
we
subsequently expressed
willingness
apply
some
the doctrine when
requirements
appeared
Erickson
have been met. In Harrison
215, 797
v.
244 Mont.
citing
Chance
P.2d
to the same three
Erickson,
criteria
set
forth in
invoked the doctrine in order
we
Rights
allow a claimant to refile before the Human
Commission her
claim which had
erroneously,
become time-barred because she had
faith,
but in good
previous
filed in
first
district court in reliance on
case
subsequently
legislatively
Harrison,
law which
overruled.
As referred to tolling the doctrine of equitable contem- (a) plates requirements as threshold injured party (plaintiff claimant) (b) (c) who possible legal pursued had several remedies and one of reasonably good Harrison, those remedies and in faith. Only P.2d at 208. if requirements met, those threshold are first is it necessary then to determine the injured party whether also meets misstated, to, though three additional criteria referred this opinion. Court’s instant plaintiffs case require- this do not meet the three threshold the application
ments for ofthe plaintiffs doctrine. The here were not action; the plaintiffs in the they Natelson were the defendants. The plaintiffs pursue here did and in reasonably good not faith first particular remedy them; from several others available this is their action; they Quite first cause of defending were the Natelson action. having simply, applica- failed to meet requirements the threshold tion equitable tolling, ofthe doctrine of not we need concern ourselves plaintiffs comply remaining with whether with three criteria. Moreover, in justifying tolling of the equitable statute filing plaintiffs’ limitations and the action on time-barred causes of action, Court premature filing basis Natelson equitable has ignored precedent. also other well While established *12 good ofplaintiff’s faith actions tolling addresses the reasonableness suits, tolling are much more restricted bringing successive doctrines where, here, alleged the actions are to have as it is which defendant’s untimely his claim. plaintiff’s filing for of responsible been of tolling of statutes of limitation on the basis
We have allowed narrowly un only conduct under defined circumstances defendant’s showing there a of here: i.e. where questionably not issue the by concealment the defendant calculated obscure fraudulent lulls him into false plaintiff’s of cause of action and which a existence suit, timely his failure to initiate Keneco security leading sense of 130, 136, 1225, 1228; or (1977), 174 568 P.2d where v. Cantrell Mont. parties the which there is a relation of trust or confidence between the imposes upon duty making a of full disclosure of the defendant Bros., facts, 192 Mont. Skierka v. Skierka Inc.
629 P.2d 217-18. short, distorting doc- by misapplying the elements case, very in this we established some equitable tolling trine of have we re- bad indeed. Not have thrown threshold precedent, tolling equitable out the quirements application doctrine window, significantly expanded have the circumstances but we also toll statute of limitations which action a defendant will under old maxim proves on a claim. Our decision on Issue plaintiff’s do, They that “hard make bad law.” and we have. cases doctrine, Failing requirements the threshold to invoke meet tolling not plaintiffs equitable I hold that here are entitled would running Counts II and V oftheir ofthe statute of limitations on and, accordingly, I on that issue complaint. amended would reverse opinion I this Court’s on Issue 1. respectfully dissent from joins in dissent. special JUSTICE concurrence and GRAY dissenting. JUSTICE TRIEWEILER majority’s I concludes part opinion dissent from suspension Chapter 634 did not violate the Federal and that the State Constitutions. percent few State’s voters eight
I that when as as conclude legislation by repre- veto over enacted can exercise an effective voters; and majority a of the State’s sentatives who were elected veto, services, when, opportu- benefits and educational based on that by citizens denied voice permanently are lost who were nities weighted for each matter, principle equally of one vote then meaningless Equal and the Protection Clause person is rendered Constitution, the Fourteenth Amendment to the United States II, Constitution, Section ofthe Montana been violated. have referendum, by I conclude that suspending furthermore when Laws, revenue-raising such measure Montana Legislature leaves the with no than an unbalanced alternatives other *13 VIII, 9, budget in violation of Article Section of the Montana Consti- tution, made, rescinding money already an appropriation of then is, effect, reject money the referendum in appropriation one to 5, III, in violation of Article Section of the Montana Constitution. Finally, 112, by I conclude suspending Chap- that Referendum pursuant Legislature’s tax, ter 634 which was power enacted to the to unconstitutionally suspend would power that in violation of Article 2, theof Montana Constitution. Although are, course, provisions these constitutional our fore concern, I majority’s most also conclude ramifications of the devastating will ability legislatures decision be to the of future to provide obligations for the government. services of State Because decision, government always the State of Montana will be hostage tyranny by to minority a small easily who are misled those unimaginative persons ambitious but who would univer exploit the sal disdain for political taxation for their own benefit.1
FACTUAL BACKGROUND I the following undisputed find facts relevant to the conclusions I have reached: passed by
1. House Bill 671 Legislature during was the Montana Legislative signed the 1993 Session and was the Governor on 11,1993. May corporate measure revises state income tax and revenue, tax laws. It increased income tax but shifts the income minimum imposes tax burden. It increases corporate taxes and graduated corporate tax rates. gather 112, example, support For for Referendum Natelson claimed highest when, eighth country, reality, tax burden of Montanans it was in the is - Census, According figures near the bottom at 44th. from the U.S. Bureau of the only neighboring pay percent state taxes where residents lower of income in Dakota, However, among South which is 45th the states. Natelson failed to acknow- ledge figures necessary signatures gathered support correct until after the were (Mike Dennison, Montana Tax Burden Much Lower Than of Referendum 112. Claims, 1A; (Montana), Shirley Natelson Great Falls Tribune October at Knowing Shaky, Salemy, Natelson Admits Tax Claim Was Great Falls Tribune 1A.) (Montana), 22, 1993, October raising for the passed, part, purpose
2. House Bill 671 was operation government for bal- general revenues of State ancing budget. the state’s rejected House Bill became effective after Montana voters
3. tax, percent general Bill four sales Senate which contained a 1, 1993. ... given application January retroactive for Better Government 4. Defendants Natelson Montanans place 112 to House Bill 671 on Petition Referendum circulated general election. the ballot the November 1994 September Cooney On Defendant certified containing signa- petitions sufficient Governor that he received place Bill 671 on the ballot for the November tures House general election. September Cooney certified to the
6. On Defendant containing signa- petitions Governor that he received sufficient require Bill 671 until the vote on tures to House Referendum 112. parties. into
Stipulation of Facts entered between Secretary of that sufficient upon Based State’s certification *14 (which to Bill 671 was signatures gathered suspend were House Laws, 634), enacted as 1993 Montana the Governor Montana, 8,1993, proclamation calling a on October issued State Legislature special In his he proclamation the 53rd for session. stated that:
WHEREAS, 9, Article of the Montana Constitution Section not Legislature that shall exceed provides appropriations by the revenue; and anticipated
WHEREAS, VI, Constitution Article Section of Montana to recommend responsibility of the Governor provides it is and necessary budget; to balance measures III, WHEREAS, pursuant a referendum undertaken Constitution, has resulted both the of the Montana for Bill on the ballot suspension placement House 671 and in its 8,1994; rejection qualified electors November approval and made
WHEREAS, House Bill 671 has its impossible thereby making virtually it provisions inoperative, budget legislative action. the state’s without balance I, NOW, Racicot, THEREFORE Marc Governor of the State Montana, authority pursuant vested in me Constitu- Fifty-Third tion and the State of call the hereby laws of Montana do Helena, Legislature Special State at Capitol, into Session at the A.M., day November, 1993, hereby the hour of the 29th 9:00 Fifty-Third direct Session Special Legislature ofthe to consider following: action on the Legislation
1. to balance the state’s budget appro- and address priate personnel operational issues. Appropriations government to state and local and programs, revenue, accounting procedures budget
allocation of modifica- government agencies tions for state and local .... words,
In other House Bill 671 was enacted to balance the state budget. suspended, budget When it was unbalanced and the Legislature was to meet and appropriations. forced reduce Legislature special
The met in session from November 20,1993. through During time, Legislature December this cut $19 appropriated public million that had for in kindergar- been education through grade; ten appropriated $12.5 twelfth million which been had services; million for human appropriated $11.8 which had been (Office higher Legislative Analyst, education. Fiscal Appro- Report Biennium, priations Special November 1993 Session 1994) 2.) (February, summary page
EQUAL PROTECTION CLAUSE majority dispenses principle with the estab constitutional Reynolds 1362, 12 v. lished Sims 377 U.S. S. Ct. L. person Ed. 2d eligible each vote is entitled to cast “[ujnlike equally weighted with its conclusion that the reappor vote cases, is not a concerning tionment case access However, contrary conclusion, process.” legisla to that access to the process exactly tive what this case is about. legislative representatives by majority
This State’s were elected *15 In representative majority of Montana’s voters. their capacity, laws, However, legislators including enacted Bill 671. those House representative effectively by their efforts were vetoed a small minor- ity supported any ofvoters opportunity who Referendum without opposed opposition. those who Referendum 112 to a vote in cast ultimately argument those who oppose that Referendum 112will 8,1994, is of on November express their view opportunity have an suspen- considering the irreversible significance, little constitutional intervening 14 months. decision for the majority’s sion of the legislative appor- significance beyond Reynolds has no Tohold that weighted equally of “one important principle tionment is to miss principle that was that it reaffirmed. While person” each vote for was government, that discussion representative in discussed terms in this person’s vote principle that each on the historical based rep- through their elected historically given effect country has been Reynolds stated: The court resentatives. repre- are, historically, the fountainhead legislatures
State their country. Anumber ofthem have in this government sentative times, the creation of substantially antedate roots colonial fact, the first formal and our Federal Government. our Nation found, in independence are be political American stirrings of the colonial actions of several of in the views and large part, Government, and of our National With birth legislative bodies. Constitution, state the Federal and ratification of adoption gov- in our Nation’s important place a most retained legislatures is in essence government representative But ernmental structure. representatives elected through the medium of self-government right to has an inalienable every each and citizen people, processes of his political in the participation full and effective participa- citizens can achieve Most legislative bodies. State’s legislators through the election voters qualified as tion citizens in all participation and effective them. Full represent therefore, citizen have an that each requires, government state of his state election of members voice equally effective needs, and the government state Modern and viable legislature. demands, no less. Constitution 564-65, at 1383. 84 S.Ct. 377 U.S.
Reynolds, offensive to Reynolds found the Court It clear that what minority Amendment Clause ofthe Fourteenth Protection Equal the Court stated: regard, In that legislative bodies. control over bodies, would minority of state control [A]nd to sanction surpasses far way in a deny majority rights appear to thought be might otherwise minority rights possible denial has tradition- protection been concept equal And the to result.... standing persons treatment of the uniform ally requiring viewed questioned action governmental relation to in the same challenged.
425 Reynolds, 377 U.S. at S.Ct. at 1383. 84 majority Reynolds
It is for reasons that the Court made these its in terms representation, clear that while discussion was couched of really right which was the of each principle with it was concerned democracy. participate equally representative voter to in a For that reason, explained the Court that: legislative apportion
While the result of a court decision in a state controversy may restructuring ment require geographi be to ofthe cal legislature, judicial distribution of seats in a state focus ascertaining upon must be concentrated whether there has been discrimination against certain of State’s citizens which impermissible constitutes an of their impairment constitutionally protected [(1992)], right Oklahoma, to vote. Like Skinner v. 1655], U.S. [62 S.Ct. 86 L.Ed. such a case “touches a important rights,” sensitive and of area human and “involves one man,” rights of the basic civil presenting questions alleged of of against “invidious ... groups types discriminations ofindividuals in violation guarantee just equal of constitutional of and laws.” 1111, 1113]. 316 U.S. at Undoubtedly, [62 S.Ct. at the right suffrage is fundamental matter in a free and society. democratic Especially right since the to exercise the franchise in a free and unimpaired manner preservative political of other basic civil rights, any alleged right infringement of the to citizens vote must be carefully meticulously century ago, scrutinized. Almost a [(1886)], Yick v.Hopkins, 1064, 30 [6 Wo 220], U.S. S.Ct. L.Ed the Court referred to political “the franchise of as “a voting” funda political right, mental preservative because ofall rights.” 118U.S. at 370, [6 1071]. S.Ct. at
Reynolds,
561-62,
For these Reynolds the Court in held that apportionment which weight diluted the urban voters violated the Protection Clause Equal of the Fourteenth Amendment.
The State ofMontana
the majority
ofthis Court would contend
on the one hand that the
process provided
referendum
for in Article
III,
5(2),
Constitution,
Section
the Montana
is a continuation of therefore,
legislative process, and
accomplished
result
as a result
of Referendum
was not a
of the power to tax held
exclusively by
Legislature pursuant
However,
argument
the Montana Constitution.
finds no comfort
Reynolds
in the
Supreme
Reynolds
decision. The
specifically
Court
that a bicameral
legislature
held
one house is appor-
satisfy
equal protection
according
population
tioned
does not
case,
to the circumstances in this
requirement.
language relevant
Supreme
Court stated that:
necessarily
Equal
Clause requires
[W]e
that the
Protection
hold
on a
legislature
apportioned
population
houses of a state
be
both
his
right
equal representation
of a citizen to
have
basis.
weighted
in the election
equally with those
all other citizens
vote
legislature
of members of one house
a bicameral state
would
effectively submerge
equal-
little if
amount to
States could
in the
apportionment
in the
of seats
other
population principle
*17
a
an individual citizen’s
permissible,
house.
such scheme were
If
the
instrument
state
ability to exercise an
voice in
effective
government
might be almost as
directly representative
people
theof
apportioned on a
effectively thwarted as
neither house were
if
might
in
the two bodies
result
population basis. Deadlock between
many
too
on some issues. But in all
compromise
concession
probable
majority
would
ofthe
cases the more
result
be frustration
a
minority
apportioned
in the house not
on
through
will
veto
basis,
directly from the failure
accord
population
stemming
representation to all of the State’s
adequate
legislative
overall
In
can
nondiscriminatory
summary,
per-
on a
basis.
we
citizens
difference,
respect
geographical
to the
ceive no constitutional
with
the two
of state
between
representation,
distribution
added].
legislature. [Emphasis
houses
a bicameral state
Reynolds,
We intimate no view unanimity giving power very a veto to a small Nor do ing group. Constitution, may, consistently we decide whether a State with the extraordinary majorities for the officers. require public election Gordon, 8, n.6, at 403 U.S. 91 S.Ct. at n.6. in exactly
What the Court Gordon refused to address is the situ- Therefore, authority ation that exists this case. Gordon is no by majority. the result arrived principles Reynolds clearly
Because the articulated in ap- are so case, to the situation in this I plicable equal do not believe that further protection analysis necessary, suggested is majority reasons, opinion. majority’s For these I dissent from the conclusion process by that the suspended which 634 was does not violate Protection Equal Clauses of our State and Federal Constitutions.
BALANCEDBUDGET majority opinion deals with Article Montana Constitution requires budget, a balanced and that III, part of Article prohibits rejecting Section which referenda isolation, appropriations, thereby, concludes that neither prohibition However, so, doing majority violated. opinion *18 construction, violates a cardinal rule of constitutional is provisions u[a]ll the of bearing upon the Constitution the same of subject appropriate are to receive together.” attention and beconstrued Regents Judge (1975), Board v. 168 Mont. 543 P.2d of reason, For that in Regents, 1330. Board 543 P.2d at we held harmonize that our task is to in a practical provisions manner those apparent of the Constitution which would otherwise be in conflict. majority opinion The fails to do so. hand, majority
On the the one concludes that Referendum 112 did budget Legislature not cause an unbalanced the exercised because special its alternative which was to come into session and cut hand, appropriations. majority On the other the concludes directly 112 did not affect it appropriations Referendum since did not prohibit expenditure money. By isolating the its consideration of in separate provisions, majority these has failed to harmonize practical provisions manner the various of the State Constitution. 428 practical effect 112 Legislature of Referendum is that the was
left with one of two It budget alternatives. could either leave the in unbalanced violation of Article Section or it forced to expenditures reduce in violation of the in prohibition found Article 5(1). III, Considering practical Section 112 effect of Referendum harmonizing provisions requires of Montana’s Constitution case, the conclusion that under the facts in this the referendum was rejection appropriation money, therefore, of the unconstitu- 5(2). pursuant III, tional to Article Section This conclusion finds support jurisdictions other under similar circumstances based on similar provisions. constitutional
Other states which have considered similar constitutional restric tions protect appropriations passed by Legislature on referenda to bills, have held that appropriation when such as House Bill from regular legislative session, bills, the 1993 are dependent on revenue such as House Bill then in pari the bills must be read materia referred, for purposes determining they may whether be and that they interdependent, where are may revenue bills not be referred for (Md. 1928), 723; Dorsey a vote. Winebrenner v. Salmon A. v. (Md. 1940), 630; Kelly Marylanders Sports Petrott 13 A.2d v. for (Md. 1987), 245; Sanity, County Inc. 530 A.2d Road Assoc. v. Board (Mich. 1979), State Canvassers N.W.2d Dorsey, Maryland 13 A.2d at Court reasoned: public pay It follows that revenue measures to raise the funds to Bill appropriations Budget excepted opera- are from the Amendment, although tion of the Referendum thus revenue procured Treasury through provisions disbursed Budget any express money without authorization in the bill for its disbursement.
Likewise, case, Bill in a House 671 cannot be considered vacuum. appropriations Its enactment was interrelated with the regular Legislature, enacted the 1993 session of the and those appropriations depended it raised. The effect upon revenue that reject of Referendum 112’s of House Bill 671 was to also that it appropriations dependent those which were on the revenue generated. fact, reasons, did, I
For these conclude that Referendum reject Legislature appropriation money, an act of the III, 5(1), therefore, was unconstitutional in violation ofArticle of the Montana Constitution.
429 OF TO TAX SUSPENSION POWER VIII, specifically Section of the Montana Constitution tax provides power suspended.” Chapter that “the shall never be ... by Legislature 634 pursuant power was enacted to its tax. However, Chapter suspended 112. pursuant 634 was Referendum majority Legislature’s power unaffected, The concludes was even though pursuant power the tax that it enacted to that has been suspended. logic The escapes of this conclusion me. is the What practical pursuant of the if purpose power to tax actual taxes levied power freely suspended to that can be of a pursuant to the whim small minority of voters? me, language VIII,
To of Article It prohibits Section is clear. exactly by what was 112 accomplished Referendum in this case. III, 5(2),
While Article provide Section does for the of Legislature by an act percent qualified 15 voters majority representative districts, provision Consti (even tution if the exception for is appropriation measures not con sidered), general provision. prohibition The against suspension Legislature’s taxing power found at Article is a specific prohibition. talking legislation Whether about constitu provisions, tional the specific general. control over the Grossman v. State Dept. Natural Mont. 682 P.2d Resources Therefore, I III, conclude that Referendum violated Article Section 2 the maj ority’s of Montana Constitution dissent from the contrary. conclusion to the
STATUTE OF LIMITATIONS I Although dissent from the majority’s conclusion that Referendum constitutional, majority’s was I concur with the conclusion that
plaintiff’s complaint not by barred statute of limitations 3-5-302(6)(a), found at MCA. § principle equitable tolling
The principles is based fairness sense apply equally common in this as where situation two brought by party. dissenting successive actions are the same The opinion Gray, of Justices Nelson and effect that it cannot be applied original was, fact, brought because action Natelson Nicholson, brought by though the second action was even same, though issues involved were the common sense even action, required resolving filing the first action before the second approach exalts form over taken the dissenters is substance. equitable principles unduly regard without mechanical and *20 short, dissenting opinion that the being invoked. In I find which are equity. is the antithesis of subject that the reasons, majority’s with the conclusion For I concur these equitably tolled. of limitations was statute joins foregoing in the dissent. HUNT JUSTICE