No. 84-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA, ex rel., STEVE HARPER,
ROBERT C. I,;IALTMIRE,BRAD BELKE, and
COMMON CAUSE OF MONTANA, a State affiliate
of common cause,
Plaintiffs and Relators,
JIM WALTERMIRE, Secretary of State, State
of Montana,
Defendant and Respondent,
and
MONTANANS FOR A BALANCED FEDERAL BUDGET
COMMITTEE,
Real party in Interest.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Plaintiff/Relator:
McGarvey, Lence & Heberling; Jon L. Heberling argued,
Kalispell, Montana
Jonathan Motl, Helena, Montana
For Respondent:
Mike Greely, Attorney General, Helena, Montana
Alan D. Robertson, Helena, Montana
Luxan & Murfitt; Walter Murfitt argued for Secretary of
State, Helena, Montana
Ted Lympus argued for Respondent Hindman, Kalispell, Montana
For Real Party in Interest:
John W. Larson argued, Helena, Plontana
Maxwell Miller argued, Denver, Colorado
For Amicus Curiae:
Harrison, Loendorf & Poston; Jerome Loendorf for National
Taxpayers, Helena, Montana
John T. Noonan, Jr. for Sam Ervin, Jr. & Taxpayers Foundation,
Berkeley, California
Submitted: October 1, 1984
Decided: November 28, 1984
i\io\i ;$ ;984
Filed:
Clerk
Mr. Chief Justice Frank I. Haswel-I delivered the Opinion of
the Court.
Plaintiffs filed an application for writ of injunction
on September 11, 1984, seeking an order finding Constitution-
al Initiative No. 23 void and unconstitutional. PI-aintiffs
further sought to enjoin the Secretary of State and other
election officials from certifying a ballot and deliveri.ng a
voter pamphlet containing this ball.ot initiative. After
hearing arguments of the parties on September 28, 1984, the
requested relief was granted by this Court in an order dated
October 1, 1984. Application for a stay of this order was
denied. by the United States Supreme Court October 10, 1984.
,
Montanans for a Balanced Fed. Budget Comm. v. Harper (1.984)
U.S. , 105 S.Ct. 13, - L.Ed.2d . This opinion
sets forth this Court's reasoning on the original October 1,
1984, order.
Initiative No. 23 is a measure that, if adopted by the
voters, wou1.d have directed the Legislature to apply to
Congress pursuant to Article V of the United States Constitu-
tion to call a convention to consider a federal balanced
budget amendment. On July 13, 1984, the Secretary of State
certified that the requisite number of signatures had been
submitted to quelify the initiative for the November ballot.
The statement of purpose drafted to accompany the initiative
on the ballot reads as follows:
"This initiative would a m e ~ dthe Montana
Constitution to direct the 1985 Legisla-
ture to adopt a resolution requesting
Congress to call a constitutional conven-
tion o r the purpose of adopting a bal-
anced budget amendment. The initiative
would also require that if the resolution
is not adopted within ninety legislative
days, the Legislature shall remain in
sessi-on without compensatior, to its
members, and with no recess in excess of
three calendar days, until the resolution
is adopted. The initiative would become
void if the convention is not limited to
the subject of a balanced budget or if
Congress itself proposes a similar
amendment."
Initiative No. 23 by form is a constitutional amendment. By
the language of the initiative, the Secretary of State is
directed to forward copies of the amendment to the Secretary
of the United States Senate, the Clerk of the United States
House of Representatives, and officers of the state legisla-
tures after ninety days of deliberation by the Montana Legis-
lature regardless of whether that body had adopted the
resolution.
Plaintiffs and relators contend that Tnitia-tiveNo. 23
is beyond the power of initiative granted the people by the
Montana Constitution and is facial]-y invalid under the United
States Constitution. We agree.
The initiative process in the Montana Constitution was
designed to enact laws, Art. 111, Sec. 4 , 1 9 7 2 Mont. Const.;
state constitutional amendments, Art. XIV, Sec. 9, 1 9 7 2 Mont.
Const.; and to initiate a call for a state constitutional
convention, Art. XIV, Sec. 2, 1 9 7 2 Mont. Const. Although
Initiative No. 23 purports to be a constitutional amendment,
it is nothing but a legislative resolution. The initiative
power within the Montana Constitution does not include the
power to enact a legisl-ative resolution, particularly a.
resolution making an Article V application for a federal
constitutional convention.
The only attribute that the balanced budget initiative
shares with a bona fide constitutional amendment initiative
i.s its form and label. The subject matter of the initiative
reveals its true nature. It is a directive to the Legisla-
ture to take a specific action: to adopt a resol-ution. Its
import and purpose is to create this resolution. To accom-
plish this goal, the constitutional amendment form is used as
a vehicle to transport language that reads as a resolution
and alternatively as an act. The measure contains references
to "the resol-ution required," "the following resolution,"
and "this act."
Labeling a document a constitutional amendment does not
make it one. See, Stovall- v. Gartrell (Ky. 1960), 332 S.W.2d
256. This simple truth is particularly appropriate here
where the initiative at issue would create a transient amend-
ment for a specialized purpose. A temporary initiative
measure is not a part of the permanent fundamental law of a
state and should not be submitted under the guise of a con-
stitutional amendment. See Ruchanan v. Kirkpatrick (Mo.
1981), 615 S.W.2d 6; Livermove v. Waite (1894), 102 Cal-. 1.13,
36 P. 424.
Initiative No. 23, unmasked, is an attempt to create a
legislative resolution by direct vote of the people. A
constitutional amendment facade does not enlarge the initia-
tive power granted the people by the Montana Constitution to
include the power of legislative resolution. The electorate
cannot circumvent their Constitution by indirectly doing that
which cannot be done directly.
F e have invalidated this ballot measure recognizing
J
that the inittative power should be broadly construed to
maintain the maximum power in the people. Chouteau County v.
Grossman (1977), 172 Mont. 373, 563 P.2d 1125. However, we
cannot fail. to recognize the independent legislative power
vested in the legislature. Art. T7, Sec. 1, 1972 Mont. Const.
The stricken ballot measure would compel the Legislature to
reach a specific result under threat of confinement and no
pay. Such coercion is repugnant to the basic tenets of our
representative form of government guaranteed by the Montana
Constitution.
The initiative is therefore invalid on these state
grounds, entirely independent, separate and apart from feder-
al constitutional i-nfirmitiesto which we now turn.
Article V of the United States Consti-tution provides a
proced-ure under which the federal constitution may he amend-
ed. In relevant part, Article V provides:
"The congress, whenever two-thirds of
both houses shall deem it necessary,
shall propose amendments to this consti-
tution, or, on the application of the
legislatures of two-thirds of the several
states, shall call a convention for
proposing amendments, which, in either
case, shall be valid to all intents and
purposes, as part of this constitution,
when ratified by the legis3.atures of
three-fourths of the several states, or
by conventions in three-fourths thereof,
as the one or the other mode of ratifica-
tion may be proposed by the congress;"
Thus, there are two methods by which amendments may be pro-
posed: by vote of Congress or through a convention called by
Congress on the application of two-thirds of the state legis-
latures. Proposed amendments become effective upon ra.tifica-
tion by the state legislatures or state conventions. The
ballot measure at issue seeks to direct the Montana Legisla-
ture to submit an application to Congress for a constitution-
al convention. The question becomes whether the people of
Montana may properly dictate to the Legislature that such
application be made. In other words, does the initi-ative
constitute a constitutionally permissible manner of initiat-
ing the Article V amendment process?
Resolution of this question involves interpretation of
the Article V language: "on the application of the legisla-
tures." The United States Supreme Court has not previously
interpreted this exact clause. The Supreme Court has had the
occasion to interpret the word "legislatures" for purposes of
Article V and we find its opinions on the issue controlling.
A joint resolution of Congress was adopted in 1917
~roposing the Eighteenth Amendment to the United States
Constitution. The amendment proposed a prohibition on the
sale and manufacture of al-coho1 and was submitted to the
states for ratification. The Ohio Constitution provided that
all proposed fed.era1 amendments be subject to a referendum
vote of the people foll-ocl7i.ng ratification by the Ohio legis-
lature. After the state legislature ratified the Eighteenth
Amendment, it was placed on the ballot for approval. In a
subsequent suit for injunctive relief, the Ohio Supreme Court
found this referend-um proper. The United States Supreme
Court reversed the Ohio court in Hawke v. Smith ( 1 9 2 0 ) , 253
U.S. 2 2 1 , 40 S.Ct. 495, 64 L.Ed. 8 7 1 .
The Hawke opinion discussed. the meaning of the word
'Yegislatures" for purposes of Article V. The Court noted
that the framers' intent was clear and that they consciously
chose ratification by a representative body over other possi-
ble nethods, including a vote by the people. The Court
stated that use of "legislatures" within the ratification
process called for "action by deliberative assemblages repre-
sentative of the people. . . ." 253 U.S. at 227. The Court
held that the Ohio constitutional requirement of referendum
violated the Article V ra.tification process.
This Court followed the holding of I3a.wk.ein an ana1.0-
gous case, State ex rel. Hatch v. Murray (1974), 165 Mont.
90, 526 P. 2d 1369. In Hatch we held that the Montana Legis-
lature could not constitutionally subject its ratification of
the proposed Equal Rights Amendment to a referendum vote of
the people.
The discussion in Hawke of legislatures in the context
of the amendment ratification clause of Article V is equally
applicable to the application clause. There is no reason
that the framers would have ascribed different meanings to
the two instances in which they used the word "legislatures"
within the same sentence of Article V. A legislature making
an application to C~ngress for a constituti.ona1 convention
under Article V must be a freely deliberating representative
body.
The deliberative process must be unfettered by any
limitations imposed by the people of the state. Leser v.
Garnett (1922), 258 U.S. 1-30, 42 S.Ct. 217, 66 L.Ed. 505.
After Congress proposed the Plineteenth Amendment giving women
the right to vote, the people of the various states placed
I-imitations in their state constitutions upon the power of
their legislatures to ratify the a.mendment. In Leser, these
limitations were struck down by the United States Supreme
Court :
". . . [tlhe function of a state legisla-
ture in ratifying a proposed amendment to
the Federal Constitution, like the func-
tion of Congress in proposing the amend-
ment, is a federal function derived from
the Federal Constitution ... it tran-
scends any limitations sought to be
imposed by the people of a State." 258
u.S. at 137. ( ~ h ~ h a s i s
supplied.)
Again, we find the ratification language of the Court in
Leser applicable to the present controversy where the people
of Montana through an initiative measure seek to compel their
Legislature to make an application under the federal Article
V amendment process.
Summarizing this discussion, we find that whenever a
state legislature acts to amend the United States Constitu-
tion under Article V powers, the body must be a deliberative
representative assemblage acting in the absence of any exter-
nal restrictions or limitations. Initiative No. 23 is fa-
cially unconstitutional for precisely this reason. The
measure attempts to direct and orchestrate the 1-egislative
application process in contravention of the plain language of
Article V.
It has been suggested by the sponsors of Initiative No.
23 and real party in interest, Montanans for a Balanced
Federal Budget Committee, that the initiative is a nonbinding
recommendation to the Legislature and does not remove the
application function from the Legislature as that body re-
mains the final actor in the Article V process. We need only
look to the wording of Initiative No. 23 and the precedent of
I-Iawke and Leser to determine the merit of this argument.
The initiative states: "The people ... adopt and
direct the next requl.ar legislative session to adopt the
following resolution [making an application to Congress to
call a convention] and submit the same to the Congress . . ."
This is no less than an express directive from the people to
the Legislature to take a specific action. Until this action
is taken, the Legislature is kept in perpetual session.
After ninety legislative days, no members may be compensated
a n d no additional business may be considered. Under these
constraints, any application made by the 1,egislature would
violate the language and spirit of Article V as interpreted
by the Unit.ed States Supreme Court in Kawke and Leser.
Legislative deliberation cannot exist where the outcome is a
predetermined specific action.
Recently the California Supreme Court considered the
constitutionality of a balanced budget initiative strikin-gly
similar to Initiative No. 23. Amer. Fed. of Labor-Congress
v. March Fong Eu (1984), 36 Cal.3d 687, 206 ~ a l . ~ p t r 89, 680
.
P.2d 609. This initiative was in the form of a law that
would direct the California legislature to adopt a resolution
making application to Congress for a constitutional conven-
tion. In striking the initiative from the ballot, the Cali-
fornia court concluded:
". . . A rubber stamp legislature could
not fulfill its function under articl-e V
of the Constitution.
". .. [A] state may not, by initiative
or otherwise, compel. its legislators to
apply for a constitutional. convention, or
to refrain from such action. Under
article V, the 1egisl.a.tors must be free
to vote their own considered judgment,
being responsible to their constituents
through the electoral process. ..
" 686
p.2d at 622.
The framers of the ITnited States Constitution cou1.d
have provided the people, through direct vote, a role in the
Article V application process. They chose instead to solely
vest this power within deliberative bodies, the state legis-
latures. The people through initiative cannot affect the
deliberative process. As Initiative No. 23 places signifi-
cant constraints on the Montana Legislature it is facially
unconstitutional^ under Artic1.e V.
Accordingly, the relief requested by plaintiffs and
relators has been granted.
-
Chief Justice
We concur:
Mr. Justice L. C. Gulbrandson dissenting.
I respectfully dissent.
Mr. Justice Daniel J. Shea specially concurs and will file a
separate opinion later.