No. 14466
IN THE: SUPRFME COUHT O THE STATE
F OF MONTANA
1978
STATE ex re1., WILLIAM J. WENZEL,
Relator,
FRANK m y , S CZ T W OF S A E
EIEA T T
OF THE S A E O MONTANA,
T T F
Respondent.
ORIGINAL PROCEEDING:
Counsel of Record:
For Relator:
Hooks and Budewitz , Tbmsend, Montana
Thca~s Budewitz argued, Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Mike JWSrath argued, Assistant Attorney General, H e l e n a , Montana
Steven J. Perlmutter (Intervenor) argued, Helena, Wntana
Filed:
Mr. Justice John C. Sheehy delivers the Opinion of the
Court.
The prayer of relator for an injunctive order is denied
and his complaint dismissed for the reasons expressed herein.
Relator, William J. Wenzel, filed on August 30, 1978,
his complaint requesting this Court to issue a permanent
injunction restraining and enjoining respondent Secretary of
State, State of Montana, from taking any action to submit
Initiative No. 80 to the electors at the general election to
be held on November 7, 1978.
The original complaint of the relator, and his memorandum
filed therewith, raised questions of sufficient import that
a majority of this Court deemed it necessary that a response
be ordered from the Secretary of State and the matter be set
for adversary hearing. On September 6, 1978, we issued an
order directing service of the complaint upon the Secretary
of State and the Attorney General, requiring a response
within fifteen days, and setting the matter for adversary
hearing on September 22, 1978.
Responses and memoranda have now been received from all
parties, as well as from Nuclear Vote, an applicant for
intervention, and opportunity for oral argument granted to
all parties.
Initiative No. 80 is a proposed act empowering Montana
voters to approve or reject any proposed nuclear power
facility certified under the Montana Major Facility Siting
Act. The initiative was approved as to form and title by
the Attorney General on March 14, 1978. On July 21, 1978,
the Secretary of State notified the Governor that sufficient
qualified electors had signed petitions to place Initiative
No. 80 on the ballot for the upcoming general election.
As required by law (section 37-127 (3), R.C.M. 1947),
the Attorney General has drafted and submitted to the
Secretary of State an explanatory statement as to Initiative
No. 80, which will be submitted to the voters at the time
they cast their votes for or against the proposed Initiative.
That explanatory statement is as follows:
"The initiative would impose rigid restrictions
before a nuclear facility could be built.
Restrictions include:
"1. Posting a bond equaling not less than
30% of the capital costs of the facility
to insure against liability.
"2. A showing radioactive material can be
contained with no reasonable chance of
escape.
"3. Comprehensive testing of similar
physical systems in actual operation.
"4. Approval by the Board of Natural
Resources.
"5. Approval by a majority of Montana
voters in an election called by initiative or
referendum.
"The initiative would forbid limitations on
the rights of persons to seek compensation
for injuries resulting from operation of
the facility."
Relator, as a Montana property owner, taxpayer, and
registered elector, alleged in his complaint that Initiative
No. 80 is illegal in that its title does not clearly express
the subject matter of the Initiative, the Attorney General's
explanatory statement does not give a true and impartial state-
ment of the purposes of the Initiative, and the statement of
the implications of the vote on the ballot form does not
clearly explain the meaning of the vote for or against the issue.
Relator further contends the Initiative is unconstitutional
as special legislation and for the further reason that Congress
has pre-empted the authority to regulate radiation hazards.
On these grounds, relator contends the expenditure of
public monies by the Secretary of State in putting Initiative
No. 80 to a vote is illegal, unconstitutional, and injurious
to relator and all other taxpayers and electors similarly
situated.
It appears by affidavit of the Chief Deputy Secretary
of State that since the filing of the action in this Court,
but before oral argument thereon, the Secretary of State's
office has certified, on September 8, 1978, all ballot
measures to the county clerks, as required by section 37-
135, R.C.M. 1947. It further appears that the duty of the
Secretary of State to furnish a voter information pamphlet
for all ballot measures must be distributed to the qualified
electors 30 days prior to the election. The Secretary of
State, because of the time requirement, has committed himself
to order 500,000 such pamphlets, and submitted final proofs
to the printer before September 12, 1978. The final press
run on these pamphlets began on September 17, 1978, and the
pamphlets will be shipped directly to the county clerks by
the printer. Any change of the ballot form would require an
insert to be prepared by the Secretary of State, requiring
approximately 10,000 pounds of paper, and additional costs
of printing and shipping. In addition, the inserts would
have to be manually placed in each pamphlet by the county
clerk and recorder in each respective county.
The ballot form to which relator objects as to the
implication of a vote for or against the measure is stated
in the following language:
"FOR giving Montana voters power to approve
or reject any proposed major nuclear power
facility and establishing nuclear safety
and liability standards
"AGAINST giving Montana voters power to approve
or reject any proposed major nuclear power
facility and establishing nuclear safety and
liability standards."
The principal issues argued by relator are (1) both
the Attorney General's statement, and his statement of the
implication of the vote for or against on the form ballot,
are insufficient and inadequate because they do not inform
the voters that a vote for the measure would in effect be a
ban or prohibition of nuclear power plants in Montana; (2)
to adopt Initiative No. 80 would be illegal because the
Congress has pre-empted the field of nuclear power plant
regulation.
The Secretary of State, the Attorney General and inter-
vener counter these issues by defending the title of the Initia-
tive,the form of the explanatory statement, and the ballot
form. They contend further relator has no standing to sue
in this action and that relator's complaint does not raise a
justiciable controversy. The Attorney General further
charges laches on the part of the relator.
The Title of the Act
The title of the Initiative as certified to the Governor
by the Secretary of State, is as follows:
"AN ACT EMPOWERING MONTANA VOTERS TO APPROVE
OR REJECT ANY PROPOSED NUCLEAR POWER FACILITY
CERTIFIED UNDER THE MONTANA MAJOR FACILITY
SITING ACT; DEFINING TERMS; ESTABLISHING
STATE SAFETY AND FINANCIAL LIABILITY STANDARDS
FOR MAJOR NUCLEAR FACILITIES; EXEMPTING MEDICAL
AND RESEARCH FACILITIES; PROVIDING FOR PUBLICATION
OF EMERGENCY EVACUATION PLANS; INVALIDATING
EMERGENCY APPROVAL AUTHORITY FOR NUCLEAR FACILITIES;
AMENDING SECTION 70-804, REVISED CODES OF MONTANA,
1947."
The 1972 Mont. Const., Art. VII, §11(3), provides that
an act "shall contain only one subject, clearly expressed in
its title". Relator contends the foregoing title of the
Initiative is misleading in that it does not clearly express
the subject matter.
The source of relator's contention lies in section
4(1) (a) of the Initiative, which contains a requirement that
no certificate to construct a nuclear facility may be issued
by the board unless it first finds that no limits exist
regarding the rights of a [person] to bring suit for and
recover full and just compensation from the entities respon-
sible for the nuclear plant and further that no legal limits
exist regarding the total compensation recoverable from such
responsible parties. Relator contends the clear import of
the restrictions in section 4(l) (a) and other related
provisions is to - the construction of any and all power
ban
facilities in the State of Montana. He further contends the
provisions of the Price-Anderson Act, particularly Title 42,
U.S. Code, 52210, provides for a top total liability for a
single nuclear incident of $ 5 6 0 million. Relator states
this limitation of recoverable amount contained in the
federal statute cannot be squared with the language in the
proposed Initiative. Therefore, says relator, an applicant
for a proposed nuclear facility in Montana could not comply
with both the State and federal provisions respecting limits
of liability and right to recovery, and in effect the passage
of Initiative 80 would be a ban on the erection of any
nuclear facilities in this State.
Respondent and intervention petitioners answer relator's
contention in two ways. First, they claim under the Price-
Anderson Act, the Nuclear Regulatory Commission (NRC) has
the power to waive the $ 5 6 0 million limitation in exchange
for a promise from an applicant for permission to build a
nuclear plant, that the applicant waives the usual common
law defenses and statutes of limitation with respect to
possible claimants and accept "strict liability" as to the
plan, design, direction, maintenance and operation of the
plant. Therefore, respondents contend there is no impossible
clash between the proposed Initiative and the Price-Anderson
Act. Second, they maintain there is a presumption against
pre-emption as between State and federal regulations (Savage
v. Jones (1912), 225 U.S. 501, 32 S.Ct. 715, 56 L Ed 1182);
that utility siting is traditionally within State control
(Rice v. Santa Fe Elevator Company (1947), 331 U.S. 218,
230, 67 S.Ct. 1146, 91 L Ed 1447); and that Congress has not
in any event pre-empted the whole of the nuclear power plant
field, but at most a limited portion thereof (Kelly v.
Washington (1937), 302 U.S. 1, 58 S.Ct. 87, 82 L Ed 3).
The Attorney General, on behalf of respondent, Secretary
of State, adds that Initiative No. 80 is not unconstitutional
on its face and that until the Initiative has become codified
as law, there is no justiciable controversy in existence now
for this Court to decide. The Attorney General also contends
the preponderant weight of authority throughout the United
States is that enactment of legislation may not be enjoined
on the grounds of alleged substantive unconstitutionality,
citing Bardwell v. Parrish Counsel (LA 1949), 44 S.2d 107,
19 A.L.R. 2d 514; State ex rel. Kittel v. Bigelow (Ohio
1941), 37 N.E.2d 41; Unlimited Progress v. City of Portland
(Oregon 1958), 324 P.2d 239 and cases annoted in 19 A.L.R.
2d 519.
We must agree with the Attorney General, that after
examination of the provision of the proposed Initiative, on
its face, the Initiative is not unconstitutional. This
takes it out of the operation of State ex rel. Steen v. Murray
(1964), 144 Mont. 61, 394 P.2d 761, where this Court did
enjoin the Secretary of State from placing an Initiative on
the ballot which was on its face unconstitutional because it
would preclude the legislature from prohibiting gambling.
We therefore examine the title of the Initiative based
upon the provisions of the Initiative itself. We find the
title conforms to the constitutional rule that the subject
of the Initiative text be clearly expressed in the title.
We make that determination based upon the rules of construction
set out in State v. McKinney (1904), 29 Mont. 375, 74 P.
1095; and Evers v. Hudson (1907), 36 Mont. 135, 142, 92 P.
462.
The Attorney General's Statement
Relator's contentions with respect to the Attorney
General's statement are akin to his objections to the title
of the Initiative. Relator contends the statement should
inform the voter that the proposed Initiative is in effect
a "ban" or a "prohibition" on nuclear facilities in the
State, and that the Attorney General should use those words
or words of like import in his statement.
In Sawyer Stores, Inc. v. Mitchell, et al. (1936), 103
Mont. 148, 62 P.2d 342, this Court enjoined the Secretary of
State from placing an Initiative which purported to tax
chain stores on the ballot. This Court found the explanatory
statement, then written by the Secretary of State, was
clearly misleading, in that it did not mention the tax
applied not only to chain stores, but to individually-owned
stores. We do not have that situation here. The statement
of the Attorney General as we have quoted it above, fairly
states to the voters what is proposed within the Initiative.
Relator contends the Attorney General has no discretion
in this matter and that because in relator's view, the
proposed Initiative is indeed a ban, the Attorney General
must be directed to insert the words "ban" or a similar word
in his statement to the voters. We hold, however, that as
long as the Attorney General in his explanatory statement
uses "ordinary plain language," explains the general purpose
of the issues submitted, in language that is true and impartial,
and not argumentative or likely to create prejudice either
for or against the issue, he has followed the law (section
37-127(3), R.C.M. 1947). His discretion as to the choice of
language in following the provisions of section 37-127(3) is
entirely his.
We do not find the word "ban" or a word of like import
should be contained in the statement for the same reasons
that we do not find such words necessary in the title of the
Initiative.
Standing to Sue Issue and Justiciable Controversy
The relator as a taxpayer, property owner and elector,
has standing to sue to prevent the waste of public monies,
Sawyer Stores Inc. v. Mitchell, supra, and accordingly had
the right to bring this action. Unfortunately, because of
the lapse of time here and the necessity for the Secretary
of State to comply with the election laws, expenses have
been incurred and will be incurred by the Secretary of State
that are unavoidable, although this action was pending.
Therefore, most of relator's attempt to save public money
has now gone by the boards. Nevertheless, he has standing
to sue in this action.
The question of whether he presents a justiciable
controversy however, is a quite different question. The
Initiative has not been approved or adopted, no applicant
-9-
appears yet for a certificate of authority to locate a
nuclear power facility and no present rights of such an
applicant are involved in this case. We said in Holt v.
Custer County (1926), 75 Mont. 328, 243 P. 811:
"To invoke the jurisdiction of a court of
justice, it is essential that there be
involved a genuine existing controversy
calling for the adjudication of present
rights involved. The courts are not
constituted nor operated for the
vindication of parties with respect to
their conception of the correct application
of the law, and it does not devolve upon
them to decide questions not arising in
the due course of litigation simply for
the gratification of the parties or
others." 75 Mont. at 331.
The controversies upon which relator relies are the
possible pre-emption of the field by the federal Congress
and the possible inability to comply both with the Initiative
and the Price-Anderson Act. These are matters not presently
before us because proper parties to raise such issues and to
define and delineate the same in litigation are not before
us. Accordingly, we do not find a justiciable controversy
about which we must make a decision is presented by the
relator's complaint.
Interpretation of this Opinion
There are other contentions raised by relator and other
parties, but they need no discussion by us, as we are of the
opinion Initiative No. 80 is validly proposed for adoption
or rejection by the electors at this time. We also find that
the Attorney General's statement of the implications of the
vote are fairly stated.
Beyond stating the Initiative is one properly submitted
for a vote, nothing in this opinion should be interpreted
as an expression of opinion by us, one way or the other,
as to the merits of the proposed Initiative, or as to any
future issues of constitutionality or validity therein, or
the application of the provisions of the Initiative, if
it should be adopted into law. This opinion is limited to
the proposition that we find nothing in the matters presented
to us that invalidates the submission of Initiative No. 80
to a vote.
The complaint of relator for an injunction is denied
and the complaint dismissed. It is not necessary to act on
the intervener's application for intervention. No party is
entitled to costs or attorney fees from any other party.
. -
We Concur:
Chief Justice
Justices d