No. 14623
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1979
THE STATE O F M N A A on t h e r e l a t i o n o f
OTN
LYNN MILLER, I n d i v i d u a l l y and a s C h a i r -
man o f t h e Tax R e l i e f A s s o c i a t i o n ,
P l a i n t i f f s and R e l a t o r s ,
FRANK MURRAY, Montana S e c r e t a r y o f S t a t e ,
and t h e County C l e r k a n d R e c o r d e r s , e t a l . ,
R e s p o n d e n t s and D e f e n d a n t s .
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l District,
H o n o r a b l e P e t e r G . Meloy, J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Relators:
P e t a j a , J a c q u e s & Smoyer, H e l e n a , Montana
C h a r l e s P e t a j a a r g u e d , H e l e n a , Montana
Leo G a l l a g h e r a r g u e d , H e l e n a , Montana
For Respondents:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Mike McGrath a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
R i c h a r d P. H e i n z , County A t t o r n e y , a r g u e d , P o l s o n ,
Montana
P a t r i c k F l a h e r t y , County A t t o r n e y , B o u l d e r , Montana
Mark Murphy, Deputy County A t t o r n e y , a r g u e d , B o u l d e r ,
Montana
C h a r l e s G r a v e l e y , County A t t o r n e y , H e l e n a , Montana
D e n z i l R. Young, County A t t o r n e y , B a k e r , Montana
J o h n F l y n n , County A t t o r n e y , Townsend, Montana
Submitted: September 2 0 , 1979
Decided: 8 C T 2 lgm
Filed: .3%T 2
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Lynn Miller appeals from an order of the Lewis and
Clark County District Court, denying a request for a
declaratory judgment interpreting section 13-27-103, MCA,
and instructing the respondents to certify and accept
certain signatures which appear on petitions supporting
relators' proposed initiative. Miller also appeals from
the same order granting respondents' motion to quash
relators' alternative request for a writ of mandate compelling
the respondents to certify and accept the signatures so that
the initiative could be placed on the ballot at the next
general election.
Relators, Lynn Miller is chairman of the Tax Relief
Association, a group organized for the purpose of placing a
constitutional initiative expanding the state gambling laws
on the 1978 general election ballot.
Petitions for the purpose of collecting the necessary
31,672 signatures were duly approved by the Secretary of
State as to form and style prior to June 30, 1978, and
thereafter circulated among the electorate by members and
supporters of the Association. The signed petitions were
then turned into the respective County Clerk and Recorders
who reviewed the submitted signatures and certified to the
Secretary of State the signatures which they believed were
qualified electors of the State by July 14, 1978. Shortly
thereafter, the Secretary of State determined the petition
drive had fallen short by 2,904 signatures.
On August 15, 1978, the Association filed suit alleging
approximately 3,500 signatures were wrongfully disqualified.
Specifically, relators requested a declaratory judgment
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declaring:
(1) that the signatures on an initiative
petition need not be identical to satisfy the
statutory requirement of section 37-116, R.C.M.
1947, that requires the petition be signed in
substantially the same manner as on the voter
registry card;
(2) that the address given by a petition signer
need not be identical to that found on the voter
registry card, so long as the address is still
within the county and legislative district in
which the petition is submitted for certification;
and
(3) that certain signatures rejected by the Clerks
and Recorders be declared valid, and direct the
Montana Secretary of State to accept them and to
certify the initiative as a ballot issue for the
next general election.
In the alternative, appellants sought a writ of mandate
directing:
(1) the County Clerk and Recorders to recount
the signatures on the petitions filed in the
respective counties and to certify those
signatures which are substantially similar to
the signatures on the voter registry cards or
to show cause why;
(2) to certify those signatures which were
accompanied by an address not identical to that
on the voter registry cards but which are still
within the county and legislative district in
which the petition was submitted for certification
or to show cause why;
(3) the Montana Secretary of State to accept the
recertified petitions and to certify the initiative
as a ballot issue in the next general election if the
required number of signatures have been secured or
to show cause why.
An alternative writ of mandate was issued by the District
Court. A show cause hearing was held on August 29, 1978,
at which time arguments were heard and motions were made
to dismiss the complaint and quash the writ of mandate.
The District Court by an order entered September 5, 1978,
denied the declaratory relief and writ of mandate and granted
respondents' motion to quash. The Court based its denial
of declaratory relief on the reasons that the controversy
would become moot before a factual determination could be
made and that it is the function of the legislature and
not the judiciary to resolve the question of petition
signature qualifications. The denial of mandate relief
was for the reason that in carrying out their duties, the
County Clerks must exercise their discretion to determine
whether a petition is signed in substantially the same
manner as the voter registry card and mandate will not issue
to control discretion. We affirm.
Relators present three issues for our review:
(1) Did the District Court err in refusing to issue a
declaratory judgment?
(2) Did the District Court err in refusing to issue
the writ of mandate as asked?
(3) Is it necessary for the Supreme Court to enter a
declaratory judgment?
We find that the first issue in this case is controlled
by the last issue which will be addressed first and the mandate
issue discussed last. This Court will not pass upon moot
questions. State v. Thompson (1978), Mont . , 576
P.2d 1105, 35 St.Rep. 343; Bell v. State Highway Commission
(1954), 128 Mont 122, 271 P.2d 425; Adkins v. City of Livingston
(1948), 121 Mont. 528, 194 P.2d 238. A question which is
moot is not a proper subject for a declaratory judgment. See
Chovanak v. Mathews (1948), 120 Mont. 520, 188 P.2d 582. A
moot question is one which existed once but because of an
event or happening, it has ceased to exist and no longer
presents an actual controversy. In the present case, the
Forty-Sixth Montana Legislature has significantly modified
the statute on which relators depend. See Chapter 494,
Laws of 1979. As a result, it would be superfluous for this
Court to issue a declaratory judgment as requested by relators.
The controversy cannot be repeated because the law has been
decisively changed.
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Not only has the specific statute in controversy been
changed, but so have the initiative procedures that will
be used for the ballot in 1980. Under the new law, the
procedures to be used to petition for an initiative to be
on an election ballot differ greatly from the process used
for the 1978 elections. See Chapter 400, Laws of 1979.
Even though a sufficient number of valid signatures may in
fact exist, there was not sufficient time available to qualify
the matter for the 1978 ballot and we find no means of legal
or equitable relief is now available.
For these reasons, this Court finds no basis to issue
the declaratory relief sought by the relators.
A writ of mandate may be issued "to compel the performance
of an act which the law specially enjoins - - duty
as a
resulting from an office . . ." (Emphasis added. ) Section
27-26-102(1), MCA. "Mandamus is an extraordinary remedy
which lies to compel only a 'clear legal duty.'" State ex
rel., State Tax, Etc. v. Montana Bd. (1979), - Mont . I
593 P.2d 747, 749, 36 St.Rep. 849, 851. The difficulty here
is that there was not a legal duty on the part of the
Secretary of State under section 13-27-304, MCA, to accept
any signatures which were not forwarded by the County Clerk
and Recorders and verified as registered electors. Likewise,
the Clerk and Recorders do not have a duty to accept and
certify signatures submitted to them as a matter of course.
The Clerk and Recorders are only required to certify to the
Secretary of State the number of signatures they find to be
valid.
In order to decide if a signature may be counted, the
Clerk and Recorder must determine if the signatures on the
petition are "signed in substantially the same manner" as
the signatures on the voter registry cards. Section 13-27-
103, MCA. To satisfy this statutory requirement, the individual
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Clerk and Recorders must exercise discretion. Mandate
does not lie to control discretion, absent an abuse thereof.
Burgess v. Softich (1975), 167 Mont. 70, 535 P.2d 178.
Addresses aid the Clerk and Recorders in the certification
process. The only purpose of the address is to aid in the
identification of the signer so that the Clerk can then locate
the signer's voter registration for the purpose of certifi-
cation. State v. Board of Examiners (1952), 125 Mont. 419,
239 P.2d 283. However, if it is the belief of the individual
Clerk and Recorder that the signature differs from that on
the voter registry card, then the signature is not valid for
this means of signature certification. This function of
the Clerk and Recorder is discretionary, and we hold that
the District Court did not err in refusing to issue a writ
of mandate as requested by the relators.
The order of the District Court is affirmed.
Justice v
We Concur:
Chief Justice
tices