*1 rel., MONTANA, ex STATE OF MONTANA CITIZENS RIGHTS, THE et FOR PRESERVATION OF CITIZENS’ al., Relators, WALTERMIRE, Plaintiffs Sec- JIM v. retary State, al., Respondents, et Defendants Liability Party Coalition, Montana Real in Interest. No. 86-400.
Submitted Oct.
Decided Dec.
Mike M. Scheier James Helena, Office, Gen., English Secretary H. argued, of State’s Elwood Recorder, Bozeman, and Gary & for defendants Pringle, Clerk respondents. Billings, party in interest. Neely argued,
Gerald J. for real Missoula, Williams, Counsel, Assoc. Defense Shelton D. Montana for amicus curiae. Opinion of Court.
MR. JUSTICE WEBER delivered the original proceeding Plaintiffs this Court and relators filed an prevent appropriate Constitu- injunction a writ of and other relief to initiative,” 30, “liability limits tional Amendment Initiative In an or- appearing ballot. on the November Montana election 7, opinion), (copy der dated of order attached this October opinion plaintiff’s application for relief. This this Court denied explains the reasons for that order.
The issues are: appropriate
1. for exercise What initiative matters are pre-election jurisdiction? Court’s than one presents
2. Is the it more invalid because Initiative ballot, Article single of Const. amendment violation Mont. XIV, 11? Section attempts transfer Is the because it Initiative unconstitutional power legislative of the doctrine
judicial branch violation separation powers? purpose and statement
4. Are General’s statement of untrue, implication misleading, prejudicial? disputed, nor is standing bring Plaintiffs’ action is not this Court. disputed issued this injunction writ of be that a could issues, raised, although this those will not be discussed Therefore opinion. necessary petitions signatures
After containing number filed, Montana voters been was to the Governor had CI-30 certified Secretary July of State Initiative amends (new portions II, are un- Mont. Const. as follows Article derlined, portions through): deleted lined
“BE IT BY ENACTED THE STATE OF MONTANA: II, “Section Constitution of the State of Montana is amended to read: “ (1) justice justice ‘Section 16. The administration Courts of open every person, speedy remedy every shall be afforded for injury person property, Right justice shall or character. sale, denial, delay. administered without “ ‘(2) person deprived No legal shall be for in- full redress jury employment person may incurred which another liable except employees as to employer fellow his immediate who if employer provides hired him such coverage immediate under Compensation justice Workmen’s state. Right-and Laws of this shall salerdenial, delay. be-administered without “ ‘(3) upon This shall section not be construed as a limitation *3 authority legislature establishing, limiting, to enact statutes modifying, abolishing remedies, relief, damages, claims for or allo responsibility damages any of proceeding; except cations for civil any express compensatory damages dollar on limits for actual bodily injury approved by economic loss for must be vote a 2/z of legislature. each house of the “ ap- ‘Section 2. Effective on Date. This amendment is effective ” proval of electorate.’ application Plaintiffs injunction August filed their for of writ 28, 2, 1986, On September this Court that briefs be ordered by parties, jurisdiction filed reserving the issue whether would accepted. 7, 1986, arguments On October oral were heard and this plaintiffs’ application. Court denied already
Three members of the Court have issued their dissent opinion. this The each dissent has addressed substantive detail parties. the issues respond raised not to the detailed We do below, analysis because, fully explained issue of the dissent as more improper concluded that would for us consider the issues prior to the election.
276
I. Court’s appropriate for exercise What initiative matters are pre-election jurisdiction? assumption of appropriate matter is
Plaintiffs assert Greely rel. v. State ex jurisdiction forth under the criteria set 833, (Mont. 143,] 1984), P.2d Water Court State Mont. 691 [214 754, 76,] opinion 2373, (1985), 712 P.2d St.Rep. 41 Mont. [219 final St.Rep. major 42 a statewide 1856: it involves constitutional issue questions importance, questions pure legal of statu- involved are fac- tory construction, urgency emergency constitutional Greely process The case appeal inadequate. tors make the normal challenges the State of Mon- involved to acts of Water Court of case, not, It like this then-existing tana under the statutes. was reason, challenge law. For that we conclude Greely preelection In a dispositive are the issues here. factors not initiative, challenge constitutionality an other considera- tions are involved. also interven- recognized
The
which have been
this Court’s
reasons
quite
prior
limited.
process
tion
the initiative
to an election
preelection
original jurisdiction
This
chal-
Court has assumed
over
lenges
properly
was
submitted under
when the initiative
not
Livingston Murray
rel.
(1960),
e.g., State ex
v.
laws,
election
Mont.
P.2d
was unconstitu-
where
initiative
Murray
(1964),
ex
Steen
face,
State
rel.
v.
e.g.,
tional on
its
277 II presents Is the Initiative invalid more one amend- because than XIV, ballot, single ment Article a violation of Mont. Const. Section 11? 1) plaintiffs say
The that the to: the funda- Initiative seeks remove 2) right law; bring mental to a civil of remove from action a court every in- protection compensated constitutional the to be 3) jury; change the standard of under Article constitutional review II, analysis; 4) authority of Section to rational basis eliminate the II, legislative the Court review under enactments Article 5) 16; give legislature authority sole to determine existence remedies; 6) rights require of extent individual a % majority legislature approve specific caps of dollar on dam- ages. argue Plaintiffs that all grouped these should not into one entirely initiative. defendants an proper contend that it is initiative be long only multifaceted so as it a affects one section of constitution as this one does. plaintiffs’ correct, if type
Even multiplicity view is of is not proper basis for this process Court’s intervention initiative prior to election. type This challenge does not constitute the of question of unconstitutionality on the Initiative face over accepted pre-election jurisdiction. this Court previously challenge Neither this a propriety Ini submission tiative ruling upon voters. Without merits the conten tion, we prior declined to consider this issue to election.
III Is the Initiative attempts unconstitutional because it to transfer judicial power legislative branch violation of the doctrine separation powers? argue
Plaintiffs Initiative renders declared II, meaningless Constitution be- Montana provision cause the section “shall not be construed as upon authority legislature” limitation enact statutes affecting rights. They deprives maintain that the amendment any legislative pur- courts of the of review over enactments section, thereby violating separation suant the doctrine of powers.
Again, clearly unless an on its face initiative unconstitutional *5 submitted, appropriate improperly it would been consider- prior it from the voters’ this Court to remove ballot constitutionality facial challenge to the ation. This not addressed 30, constitutionality applied. It could be Initiative to its but completely eliminate as to argued go so far that the voters could II, affecting powers without Mont. Const. Article Section we de- those reasons judicial government. branch of For state question. pre-election jurisdiction over this clined exercise IV Attorney purpose and statement Are General’s statement untrue, implication misleading, prejudicial? and procedure initiative’s statutory opponents’ challenges to an (the pre- implication title statement of statement of and 13-27-316(2), General) pared out at Section set may be provides MCA. title of an initiative That section that the County challenged in the Lewis Clark within District Court for days governor. ten of certification to date July
This Initiative certified to was Governor proce any objection Plaintiffs failed to the title under to make MCA, 13-27-316(2), rea have shown no dure Section outlined exactly justifying this this issue is son failure. We conclude 13-27-316(2), MCA, type challenge contemplated under rel. Boese v. fully in State ex opinion and discussed more in our St.Rep. (1986), 230,] 730 P.2d Waltermire [43 [224 right of lightly the constitutional We will not interfere with 2156]. people through the of Montana to make and amend our laws process, legislature’s protection of that initiative nor with the through statutory timely challenges to initiative titles. provision for procedure in accept jurisdiction We therefore declined where not, 13-27-316(2),MCA, been, followed. but was could have application prejudice. Plaintiffs’ without for relief was denied HARRI- MR. CHIEF MR. JUSTICES JUSTICE TURNAGE and SON and concur. GULBRANDSON
ORDER original Plaintiffs proceeding and Relators have filed on relief, Injunction Court for Writ of appropriate and other constitutionality challenge the of Constitutional Initiative “liability Briefs, motions, initiative.” have materials other Relators, been filed Respondents, Defendants and Plaintiffs Party and Real argument Interest. was the Court Oral held before immediately on this date. The Court has concluded it is advisable to parties issue its all Order inform of the result.
IT IS ORDERED:
(1) Application Appro- That the Injunction for Writ of Other and priate entirety, Relief is denied in its prejudice without to considera- tion of the in proceedings. issues other
(2) opinion That an of this will be at Court issued a later date setting forth basis this Order. October,
DATED day this 7th Turnage, Chief Justice
s/J.A. Weber, J. Justice s/Fred Harrison, Conway Justice s/John Gulbrandson, Justice s/L.C. GARY,
HONORABLE sitting JOSEPH B. in place of JUS- MR. MORRISON, JR., TICE B. grant FRANK would the writ of injunction. HUNT,
MR. JUSTICE SHEEHY dissenting and MR. JUSTICE St. Rep. [43 1869]: 7, 1986,
On in original proceeding October an before this Court above, captioned Court, majority consisting of this of Chief Weber, Turnage Conway, Justice J. A. J. John Justices Fred Harrison L. denying C. Gulbrandson handed down an Order application injunction appropriate writ and other relief its entirety. Court, Sheehy,
The remainder of John consisting of Justices C. Hunt, Judge, William B. Joseph Gary, E. Sr. the Hon. District Jr., sitting Morrison, place Mr. Justice Frank B. dissented injunction. We file Order, they grant majority stating would MCA, 3-2-204, with Opinion Dissenting this accordance Order. support of our Dissent to that denied Order, majority application was In recited that proceed- in other of the issues prejudice to consideration “without majority will defer if means that ings.” do not know this We It them this Dissent. the issues as we discuss consideration of opposi- application and the position that the issues raised our Opinion immediately and this must be tackled tion thereto a full discussion of the issues. therefore entail JURISDICTION AND STANDING Dissent, plaintiffs as “relators.”
In will refer to all of the Liability Coa- is Montana party The real interest in this case remaining de- lition, “Coalition.” to which we will refer as the brought us respondents parties before are incidental fendants and they having to with conduct officials do because are elected state, on No- including coming general election in this elections vember Rights is an of Citizens’ for the Preservation
Relator Montanans citizens, taxpayers ad hoc group voters and of individual Montana proposed essentially opposing Constitu- formed for on November tional Initiative No. now set for the ballot directly individually, adversely affected who claim AFL-CIO a feder- Montana State Initiative. Relator organization have and remedies ation of labor workers who II, protected by Montana Constitution Section 16 Relator impaired Initiative No. 30. Constitutional of the Student Bar Association Women’s Law Caucus is a section *7 School, Montana, pres- University of Law who contend Initi- rights is involved and enhancement of women’s ervation Tyndall Cox is adversely thereby. a is Relator ative and threatened citizen, a has sustained Workers’ taxpayer voter who Montana against a injury, third-party has action Compensation and who a injuries he sus- part all or of the who contractor liable by adversely is threatened his cause of action tained and contends citizen, years age, a Gary is 31 of the Initiative. Relator Hendricks presently he main- paraplegic for which and a from an accident Hendricks taining against manufacturer. an action an automobile injuries compensation full for his contends he has a proposed adversely by Initiative. directly affected voter, citizen, Pam of taxpayer, Relator McClain is a the mother a daughter disabling minor has a in- who sustained severe and brain jury. presently maintaining proceeding McClain is a for dam- court ages again adversely proposed she contends Initiative will affect the claim. fully
Constitutional No. set out more in this Initiative hereafter Dissenting contend, Opinion, agree, relators dissenters serious In- constitutional defects which render the submission of the general itiative to the voters election of November impermissible. Court,
Relators enjoined by contend that unless election officialswill submit general electors in the election of Novem- constituted, ber 1986 CI-30 as it is now and that the same will adversely affect their pursue fundamental full redress for injury character; property, person speedy that no other or ade- quate remedy lies to following them at law or otherwise and that the by issues should be considered this Court: 1. The Attorney statement of General and the state- implication ments of contained in the Initiative are false and misleading.
2. The separation Initiative powers invades the of doc- by trine transferring judicial authority legislature. 3. The Initiative does not meet the requirement constitutional presenting single subject to the voters.
The responds: Coalition sufficiency That the issue of the the statements of Attor- ney 13-27-316(2), General is barred MCA and laches by the relators. merely That the judicial Initiative restores standards of review
recently enlarged this Court as full redress. separation powers
3. That the provision of Montana Consti- tution judicial powers authorizes the provisions division under III, Section 1. presents
4. That the single subject, though Initiative multi-fac- eted, to the electors. responds Coalition accepts jurisdic- further if this Court General,
tion on sufficiency Attorney the statements false, reasonable minds could differ on whether the statements are partial prejudicial. significant response,
It is that in its while the denies our Coalition jurisdiction of sufficiency issue General’s *8 282 immediately
statements, jurisdiction this Court’s it does not contest by the relators as issues raised hear and decide constitutional their claims of defects CI-30. therefore, present justiciable issues clear, pleadings It is that the impli effect, deep constitutional and have which involve statewide issues, substantial delete determines the cations. Unless this Court may standing and Accordingly, parties have harm rious result. determine the is accept jurisdiction Court should immediate (Mont. 1984), Montana, et al. presented. v. State sues Grossman 427,] St.Rep. See Section 3-2- P.2d 41 804. [209 205(2), MCA. majority dissented there- have
The effect of the Order to parties all issues when fore is decline to decide the substantive majority us. The refusal concede should be decided the reasons we have this case issues is one of to decide such dissented. THE AT- THE SUFFICIENCY OF
WHETHER THE OF ISSUE BARRED TORNEY IS GENERAL’S STATEMENTS may pro- people provides that the Montana Constitution XIV, pose by initiative. constitutional amendments signatures petition 9. a sufficient number containing When a required Secretary time been filed with the of State within the law, duty Secretary of State the constitution or it is the completed petition has certify immediately that the to the Governor case, 13-27-308, officially In this the Attor- been MCA. filed. July 30, It ney to the Governor on General certified the CI-30 Secretary copy of the ballot duty to transmit a is the of State completed peti- day Attorney same form to the General on the 13-27-310, MCA. It tion is certified to the Governor. Section up General, procedure on Section duty through set purpose, 13-27-312, MCA, provide a statement for the ballot against the implications of vote for and and statements of the implica- purpose and the statements measure. The statement impartial explanation of express tion a true and must may be ar- plain easily-understood language and not ballot issue against the prejudice for or gumentative so to create or written 13-27-312(4), oppose who Initia- MCA. Persons measure. Section impli- and of that the statements tive and do believe days of the of law within ten satisfy requirements cation petition date of certification to the Governor the District Court County Lewis and Clark for relief. Court, proceed an
Relators did not the District but instead filed original meantime, August action this Court on In the *9 Secretary county of State had certified the ballot to the election 20, 1986, August on printing administrators and had awarded the packet 21, for August contract the voter on information The Coalition in contends that the Relators are barred this Court because did not first seek relief in the Yet District Court. upon statute opponents’ the Coalition relies for action commence in permissive. the District at Court is most 13-27- 316(2), provides: opponents
“If the
of a ballot measure believe that the
statement
purpose,
implication
vote,
the statements of
aof
or the fiscal state-
ment
by
pursuant
formulated
General
to 13-27-312 do
satisfy
13-27-312,
not
requirements
they may,
days
within 10
of the date of certification
completed peti-
to the Governor that
filed,
officially
tion has been
in
file an action
District Court
County
challenging
adequacy
Lewis and Clark
requests
statement and
to the court to alter the statement.”
important
It is
imperative
to note that Section 13-27-316 is
an
not
statute.
“may”
interpreted
The word
only.
must
permissive
be
as
This Court
prior experience
has had a
interpreting
bitter
with
“may”
“must,”
word
in State
rel.
ex
Interstate Lum
as
which it
did
Company
ber
v. District Court
(1918),
602,
54 Mont.
172 P.1030.
Hardenburgh
The holding
Hardenburgh
was repudiated
v.
in
(1944),
115
Ogle
v.
(1945),
Mont.
Johnson
Laches is party party prejudice to another when results the inaction one position prejudice. party change his to his or induces another has been though argued Even Coalition in the prejudiced have been altered because the statement could Court, The ten argument apply to this case. District cannot days provided in this permissive in the statute would be insufficient in- relate to the statements here case to formulate issues that argued impossible, as the Coalition volved. Further it would us, compose before statement of the District Court in- adequately of the issues words which would advise the voter interested, repre- Moreover, parties are volved CI-30. there here, involved, rights are the thousands Montana sented whose the courts full redress before residents whose fundamental jeopardized the Initiative. duty in a This a minimum to make certain Court has at least *10 act, case, power that when voters proper when Court has the this initiative, a right their to determine constitutional exercise ballot in a they adequately purpose the of the initiative informed of are deny- majority by their Order impartial true here and manner. The permissive compliance ing place greater with a statute relief stock truly impar- making than in certain that initiative issues are tially stated. why this very compelling a reason Court
There is further and sufficiency of the statements should not hesitate now to examine the statutory for initia- scheme CI-30. That reason is that under the tives, ap- object to opportunity opponents to statements the game. in the proved by Attorney far late the General comes too signa- for petition for action is ever circulated Before initiative Council, tures, Legislative its form must first be to the submitted Secretary State, Section 37-27- the and to the General. petition, in- the form of the MCA. These officials must review implication purpose cluding the and the statements statement are signatures approve reject petition form the before or the objector the provision then an statutory is no for solicited. There procured signatures are object to before Initiative to the statements given the then although proponents the of the measure go peti- if agree approved to court with the form of the do case, 13-27-316(1), petition tion. Section MCA. in this it- Thus signatures, pur- self as it was circulated for contained statement pose implication approved by Secretary and statements of Attorney General, State and the which as we shall demonstrate were say signatures false. Who can if that would have been obtained signers knew truth what the form of the Initiative masked? equitable are no grounds application against There for the of laches the relators here under the of this If facts case. the District Court or intent, this Court were to revise the statement of to its true permitted case, and we a vote on a form in revised the issue on substantially ballot be petitioned would different from the issue signing petition. those point, The final hope day proper which we will be raised some in a case, adoption 13-27-316, is MCA, by Legis- that of Section legislative lature is power. in excess of its procedure It is a rule procedure and rules of subject only are the of this business Court disapproval Legislature. VII, 2(3), 1972 Mon- tana Constitution.
The last argu- contention on might which laches is based ment of the elected printed officials that have ballots been out, sent expensive change would now to them. Such argument an is interrupted process balderdash. We have the ballot at as Harper State ex rel. example close closer intervals. See for v. (Mont. 1984), Waltermire 425,] 691 P.2d [213 St.Rep. 2212.
THE OF THE FALSITY BALLOT ISSUE premise CI-30, The basic appear as follows. As the issue will ballot, on the given impression voters will be their vote, time will have the Legislature affirmative first to determine damage person, injury and remedies for property premise baldly long or character. As That false. state, have Legislature power. been a had *11 We set CI-30, out for the appear reader the full text of as it will on the ballot: amending FOR the Montana Constitution to authorize
“[ ] Legislature to rights injury determine the or dam- and remedies age person, property, or cháracter. AGAINST amending the to authorize
“[ Montana Constitution ] injury or rights and remedies Legislature to determine person, damage property, character.” or Purpose” Attorney General’s “Statement language The ballot, appear the text of the appear there will not on the nor will Attor- proposed. as If the voter desires to examine Initiative it is statement, “1986 ney explanatory must look to the General’s he/she Secretary Pamphlet” promulgated Voter Information reader, Attorney set forth full State. For the benefit of the purpose: explanatory statement of General’s to author- “This initiative would the Montana Constitution amend injury rights Legislature ize determine and remedies for Currently the Constitu- damage person, property, or character. A two- permit and remedies. tion does not limits on these required to set Legislature would be thirds vote of each house bodily resulting damages for economic loss dollar limits injury.”
Further, with the acquaint if the voter desires himself/herself says, will have full text of the Initiative to what it determine he/she separate Information page to find on a 1986 Voter Pamphlet. counties, any, if form of
Only having an abbreviated those MCA) (Section 13-27-501, explan- General’s ballot upon implication which the atory statement and statements appear juxtaposition vote to each other. is taken Initiative, reader, as it For the benefit of the full text of the appeared signed petitions, on the set forth: here
“BE IT BY STATE OF ENACTED THE MONTANA: II, of the State of “Section 1. Article section of the Constitution Montana amended to read: “ justice. ‘Section 16. administration of (1) speedy every rem- open person, justice Courts shall be Right edy every injury person, property, or character. afforded for sale, denial, delay. justice shall administered without “ ‘(2) in- person legal redress for deprived this full No shall be person be liable jury employment for which another incurred employer who except employees his immediate to fellow provides coverage under the employer hired him if such immediate justice-shall Right -and Compensation state. Workmen’s Laws be-admtnistered-Ayithottt-sale, or-delay: denial upon
“(3 limitation as a This section shall not be construed
287 authority legislature establishing, limiting, enact statutes modifying, abolishing remedies, damages, relief, or allo- claims for responsibility damages any proceeding; except cations for civil any express compensatory damages dollar limits on actual bodily injury approved by economic loss for must be a % vote of legislature. each house of the ap-
“Section Effective Date. on This amendment is effective proval of the electorate.” by Words struck out indicate words to deleted the Initi-
[NOTE: Underlining ative. indicates new material.] The Purpose” so-called “Statement of the Initiative that was approved Secretary General of State and probably by Legislative Council, petitions signatures before the circulated, appeared were petitions all signed. on that were It appear will not on the palpably ballot itself. The statement false. is The Purpose Statement by telling starts out the voter that the Initiative “would amend” the Montana “to Constitution authorize Legislature rights determine the injury remedies for damage person, property or character.” As we will demonstrate below, Legislature always has authority. had that The sen- next Purpose, tence of the however, particularly Statement of is mislead- states, ing and “Currently deceitful. It the Constitution does not permit limits on these legal remedies.” There no statutory basis for that statement. V, 1,
Article provides, 1972 Montana Constitution “The power Legislative . legislature vested . .” The 1889 Montana V, language. Constitution carried the same Section 1. In (1935), State ex 959, rel. DuFresne v. Leslie 100 Mont. 50 P.2d we said: sovereign power
“The people. legis- of the state rests with the assembly, representative lative as the people, authorized of the exer- sovereign power. cises this very
“. . . that, It is except placed upon clear for limitations power first, Legislature, of the by the Constitution of the United and, second, by States State, the Constitution of the the will of the legislative body may freely legislative exercised in all matters unrestricted.” 452-453,
100 Mont.
In Shea v. North Butte
55 Mont.
Coalition),
de-
(amazingly
this Court
In the same the issue Thus Implication equally in the voter deceitful. Statements is told: amending the Constitution authorize FOR Montana
“[ ] rights injury for or dam- Legislature and remedies to determine the age person, property, or character. to authorize amending AGAINST the Montana Constitution
“[ ] injury Legislature and remedies to determine the damage person, property, or character.” cunning masking of intent of CI-30 could
No more the true slick or “FOR” presented to here to vote devised than the voter be what giving Legisla- be “for” or “AGAINST.” What voter would not giving “against” authority? kind of voter would ture such What authority? designers Initiative have Legislature The such disguised cleverly derogatory effect of the Amendment mask- ing Implication seemingly words and the Statements of innocent phrases. fakery Implication worst The Statements of are kind. FALSITY BY SILENCE Purpose Implica-
False as the Statement and the Statements of state, expressly they equally tion are what false what petition them signer omit to tell voter or the about effect of the Initiative. passage
The statements do not tell the voter that of the Initiative away every person’s remedy every will speedy take right to a injury person, property, “every” or character. The word is deleted 16(1). in the “every” Initiative’s Section The word that context part has been a our State’s Constitution since See III, 1889 Montana Constitution.
The statements do not tell the voter that their of redress for injury longer no right. The describing words “this full” full legal 16(2) redress were deleted of the Initiative.
Perhaps all, worst tell statements do not the voter that all judicial power to validity review and construe the of actions taken Legislature away. under the Legisla- Initiative is taken ture will judge legality become the sole of its actions under the Initiative. It should be clear that such drastic transference of judicial power Legislature from the courts to the should be a subject of advice Purpose to the voter in the Statement of *14 the Statements Implication, away of and not hidden in the arcane provisions of the Initiative.
Finally, the authority statements do not advise the voter that the given Legislature passes merely the if the Initiative is not limited to Every right remedy, every nature, “tort reform.” kind and away be judicial locked Legislature review whenever the acts under the Initiative.
It purpose delegates was constructing the of the constitutional the open up process 1972 Montana Constitution to the initiative people. They provided III, people Section that may XIV, by enact laws They provided initiative. further in Article by that the Constitution itself can be amended initiative. respect laws, With propose initiatives which to enact State provides petition sufficiency Constitution initiative questioned III, shall not be after the election is held. Article 4(3). respect which provision appears with to initiatives No such people may for the amend the Constitution. It be fortunate would sufficiency petitions Constitutional for this this state that high may questioned election. Otherwise the Initiative after the preserve people delegates to of the constitutional by pe- power rights could be subverted to define their constitutional purposes and masked intentions. titions circulated with dubious by fleshing rights provided In the new Constitu- out the initiative tion, prevent happening here with Legislature sought what 13-27-312(4), MCA, provided It in Section that: CI-30. Implication Purpose the Statements
“The Statement of must express impartial explanation proposed the true and may plain, easily language not be ar- ballot issue understood prejudice against guments so it create a or written could measure.” Purpose Implication, as and the Statements of Statement of
they appear petitions, they appear on the ballot are and as now will true; they impartial; argumentative, and written are not measure. prejudice so as to create a for the case, we have majority Before the of this Court Order of people in power protect ballot not hesitated to exercise our Stores, Mitchell, (1936), Sawyer Inc. v. et al. In issues. applicable language 62 P.2d this Court set out today implication: to statements of “ portrayal fair ‘Description’ signifies in these circumstances meaning plain so proposed law words of the chief features of the persons entitled to vote. It must be understood could scope convey intangible and im- plain enough an idea of detail, port ought not to be clouded undue law. It ought readily comprehensible. It yet as not to be nor so abbreviated any tendency, amplification, misleading whether to be free from omission, partisan coloring. It fallacy; contain no or of it must intelli- every particular to the end that must in be fair to the voter ordinary person gent enlightened judgment be exercised in deciding how to mark the ballot.” Sawyer to the Statement of Pur- applied
If rule of this Court case, they could not pose Implication in this and the Statements of stand. Sawyer, uninformed voter pinpointed the dilemma of the
In facing such issue: a ballot in man- so much interested majority qualified electors are
“The *15 carefully time consider aging their own affairs have no that affecting general public. great A of voters un- measures number doubtedly superficial knowledge proposed laws to be voted have upon, newspaper derived from comments or from conversa- is safely with tions their the assertion be associates. We think earnestly only persons ventured it is or zeal- that few who favor law, ously oppose by passage proposed petition, of a initiated attentively prob- who have studied how its contents and know it will ably private greater effect their number of interests. voters do possess usually not knowledge this information and derive their proposed inspection the contents aof law from an of the title thereof, only very meager which is from sometimes secured de- by tails afforded a ballot which is examined an election booth preparatory exercising suffrage.” (as is) foregoing quotation If the think true we it all the more compliance reasons exist provisions with the our statutes descriptive required relation to placed manner which is to be by proposed the ballot which a measure is submitted.
It was thought the evident Legislature, enacting of the 13-27-202, MCA, requiring sample pro- the submission of a posed measure and of Purpose Statements and Statements of Im- plication Council, Legislative State, to the Secretary and the petitions circulated, General before are that such officials protect people would misleading and deceitful submissions public case, initiative. In defense of the officials in this it should recognized presentation simple that petition pro- of a parte, and, ex ponents Sawyer, only made we as noted it is persons earnestly few zealously who oppose passage favor or of a by petition study law initiated attentively who its contents probably and know how will their affect interests. Whatever cause, they slipped through, however the statements do here up requirements measure impartiality of truth and in Section 13-27-312(4),MCA. Sawyer, supra,
Faced with the same situation in Court had this no patience prevented with the contention laches action remove the ballot from the election. This Court said: plaintiff estopped process
“Defendants contend that this ac- tion reason of present purposes, laches. For as we consider true allegations each of the of defendants’ answer in relation phase Conceding plaintiff the matter. did not act herein as expeditiously done, yet it might opinion have of such failure on the not be dismissed because the action should merely private proceeding part plaintiff. If this affected *16 plea plaintiff, the of laches would rights of the then doubtless above, the because of good. jurisdiction, This has as noted Court opinion that the public are of interest which attaches here. We merely jeopardized people of this State should not be liberties of the of celer- plaintiff greatest not acted decree because the with ity; plea and therefore such is not sustained.” 191, 72 P.2d 103 Mont. 357.
THE IS MULTIFARIOUS INITIATIVE IMPERMISSIBLY provides XIV, 11, 1972 Montana Constitution
Article
Section
at
“if
is submitted
more than one amendment
the Constitution]
[to
election,
prepared
distinguished that
be so
the same
each shall
applies to ballot mea-
upon separately.”
it
The section
can be voted
process
through
as
proposed by
the initiative
sures
the electorate
State ex
legislative enactment.
through
well as
those
61,
(1964),
Murray
144
CI-30 combines six addition, in either amendatory CI-30 are not contained effects of Purpose Implication. the Statement of or the Statements of II, Article By “every” in the first sentence of deleting 1. the word speedy 16, protection for a Section CI-30 removes the constitutional property any injury person, right trial and of redress from character. 16(2), Initia- By Section removing
2. the words “this full” from persons right of to a protection the tive removes from constitutional wrongs. complete remedy in for the redress the courts full” from By “every,” the words “this removing the words remedies, equal 16, rights under the Initiative removes Section standards, scrutiny by the courts. protection strict from Section By removing “every” “this full” from the words any Initiative, 16(3), power state in Section eliminates limit the in manner which would construing court from Section 16 remedy any right power Legislature adopting mode of the provide. might seek to 16(3), legislative branch vests 5. Section under the Initiative remedies, rights and authority sole as to the extent of individual excluding right of access to the courts. II, the Constitution existing
6. CI-30 adds to place limits dollar authority Legislature to of the a limitation on the
293 approval such enact- compensatory damages requiring Legislature. of each ments a two-thirds vote house easy A of the Initiative is to demonstrate. multifariousness might preserve access to the courts for voter wish to every wrong, Legislature but authorize to limit remedies redress; might give agree so not to or the voter to remove “full” “every preserve the words and “full” from Section but validity legislative adoptions of the courts to examine the might under 16. A vote of voter favor two-thirds each Legislature compensatory damages, house of the for limits on but speedy every injury, removal access for or for full redress.
By initiative, all combining subjects single these in a Sawyer Stores, proposals voter is defeated. We condemned such Inc. v. (1936), Mitchell stating: P.2d
“. . . a
propositions
submission is
where
void
two
have been sub-
expression
mitted so
pro-
as to have one
of the voter answer both
*17
positions,
thereby
and this
might
for the reason
in-
that voters
duced to
for
propositions
vote
both
would
who
not have done so if
question
singly.
had been submitted
As the
this
voter in
instance
might
bill,
against
adoption
have been
of the initiated
but desir-
ous of locating
capital
carried,
question
in event
the bill
should
separately
have been
him
might
submitted to
he
so ex-
press his will. This
Lozier
holding
was the effect of the
court
Drug
v.
Company,
Alexander
1,
supra,
P. 808,]
Okl.
99
where
[23
opportunity
the Court
No
given
separately
said:
was
the elector
express
upon
his
question
adoption
will
his vote
of the
or
rejection
provision
proposed
of said
as
...”
173,
103 Mont.
THE TRUE PURPOSE THE OF INITIATIVE In White v. (Mont. 1983), State Montana 363,] Mont. 661 [203 1272, 509, P.2d St.Rep. 507, 510, 40 Court the lan- held guage present II, everyone guarantees Article Section “a fun- 16 right” bring damental action in a court of civil law. (Mont. 1985), v. State 495,
In 206,] 42 Mont. P.2d 713 [219 Pfost St.Rep. 1957, 1966, legal “full redress” in held the words II, protected right Section right, as a “fundamental persons fully compensated injury.” every holding to be This ne- application scrutiny” legisla- cessitated when of the “strict test light equal protection in the tive enactments are examined standards. right purpose remove the status of fundamental
The of CI-30 is to character, and the every injury person, property or actions for injury. fur- equally such fundamental to full redress for any enactments of Initiative is to remove such objective ther II, judi- Legislature proposed Article under the cial review. said, Initiative, is we masked from the
The true voter. press, proponents of advertising,
In in statements to the A advancing under the banner of “tort reform.” CI-30 are its cause reform,” yet not realize that might well wish for “tort voter abolish, Legislature to authorize the amendment would remedy recovery without modify every possible right or or limit ap- adopted, If CI-30 will judicial review the new under remedies, tort, specific ply only contract to remedies for but to might any remedy that the reader performance, other name. crisis, Initiative 30 exchange liability
In insurance short term will of the to the unbridled long-term will substitute a submission Legislature. Any long-time history of the Montana student of the folly Legislature recognize the of that direction. CONSID-
THE BE FROM FURTHER MAJORITY MAY BOXED DEFECTS ERATION OF INITIATIVE 30’S concerning initi- In a constitutional another case before this Court of Novem- general the voters at the election ative to be submitted to School Board Asso- ex rel. Montana State Montana 4, 1986, ber Constitution, et al. v. Jim and Friends ciation, Waltermire Inc., (1986) 2198], 296,] St.Rep. de- P.2d [43 [224 2198], here Rep. two of the Justices cided October St. [43 although dissenting CI-27 to the voters authorized the submission of *18 Dis- they in the Initiative. recognized possible constitutional defects Judge Gary participate trict did not that decision. presented by CI-30. presented aspect from that
CI-27 a different July Thus provided CI-27 its effective date would be time, to rem- passes, if action to be taken there is that Initiative however, case, involv- edy In this the defects if such defects do exist. effective date CI-30, provides that the ing 2 of the Initiative Thus if the immediately approval of the electorate. shall be on the approve, voters CI-30 take effect on November and be effective from that date.
By voters, voting go majority to the in this allow CI-30 to effectively prevented case have themselves from further consid- eration of provi- the constitutional issues therein involved. If the Constitution, part sions of CI-30 become a of the how can it later be said that are unconstitutional? Dissent,
As we question indicated earlier in this of the suffi- ciency petitions on which constitutional CI-30 is based is still open question. permitted If that be the majority reason that the voters, go thought CI-30 to to the sufficiency with the that such questioned, however, could be later good. purpose, well and Such expressed was not entry to the dissenters before majority Order.
By making immediately CI-30 upon approval by effective its electorate, a serious any roadblock exists to further examination of provisions successful, of CI-30 if constitutionality it is and its questioned. opinion dissenters, In the delay of the relators (it delay) was a getting minimal the issues to this Court is not a sufficient reason for this Court not to preroga- exercise its tive, indeed, duty, protect its the electors of this State from misleading manipulations false and process. of the initiative We affirm our majority Dissent to the Order in this cause of Octo- ber
MR. JUSTICE HUNT GARY, and HONORABLE JOSEPH B. Judge, District sitting for MR. JUSTICE MORRISON concur.