No. 86-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA, ex rel., MONTANA
CITIZENS FOR THE PRESERVATION OF
CITIZENS' RIGHTS, et al.,
Plaintiffs and Relators,
JIM WALTERMIRE, Secretary of State,
et al.,
Defendants and Respondents,
and
MONTANA LIABILITY COALITION,
Real. Party in Interest.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relators:
Goetz, Madden & Dunn; James H. Goetz argued, Bozeman,
Montana
For Respondents:
Hon. Mike Greely, Attorney General, Helena, Montana
James M. Scheier argued, Asst. Atty. General, Helena
H. Elwood English argued, Secretary of State's Office,
Helena, Montana
Gary Pringle, Clerk & Recorder, Bozeman, Montana
Real Party in Interest:
Gerald J . Neely argued, Billings, Montana
Amicus Curiae:
Shelton D. Williams, Montana Assoc. Defense Counsel,
Missoula, Montana
Submitted: October 7, 1 9 8 6
Decided: December 11, 1 9 8 6
Filed: ~~G111986
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs and relators filed an original proceeding in
this Court for a writ of injunction and other appropriate
relief to prevent Constitutional Amendment Initiative 30, the
"liability limits initiative," from appearing on the November
1986 Montana election ballot. In an order dated October 7,
1986 (copy of order attached to this opinion), this Court
denied the plaintiffs1 application for relief. This opinion
explains the reasons for that order.
The issues are:
1. What initiative matters are appropriate for exercise
of the Court's pre-election jurisdiction?
2. Is the Initiative invalid because it presents more
than one amendment in a single ballot, in violation of Mont.
Const. Art. XIV, S 11?
3. Is the Initiative unconstitutional because it at-
tempts to transfer judicial power to the legislative branch
in violation of the doctrine of separation of powers?
4. Are the Attorney General's statement of purpose and
statement of implication untrue, misleading, and prejudicial?
Plaintiffs' standing to bring this action is not disput-
ed, nor is it disputed that a writ of injunction could be
issued by this Court. Therefore those issues, although
raised, will not be discussed in this opinion.
After petitions containing the necessary number of
signatures of Montana voters had been filed, CI-30 was certi-
fied to the Governor by the Secretary of State on July 3,
1986. The Initiative amends Mont. Const. Art. 11, § 6 as
follows (new portions are underlined, del.eted portions are
lined through) :
BE IT ENACTED BY THE STATE OF MONTANA:
Section 1, Article 11, section 16, of the
Constitution of the State of Montana is amended to
read:
"Section 16. The administration of justice (1)
Courts of justice shall be open to every person,
-
and speedy remedy afforded for every injury of
person property, or character. Right and justice
shall - administered without sale, denial, -
- - be or
delay.
- No person shall be deprived of t h i s ftt&&
(2)
legal redress for injury incurred in employment for
which another person may be liable except as to
fellow employees and his immediate employer who
hired him if such immediate employer provides
coverage under the Workmen's Compensation Laws of
this state. Right-a~d-3ustiee-3ku&&-Ise-adrninis-
- - section shall - - construed - -
(3) This not be as a
limitation upon the authority - - legislature to
of the
enact statutes establishing, limiting, modifying,
- abolishing remedies, claims - relief, damages,
or for
or allocations of responsibility for damages in any
- r
-
clvil proceeding; except that any express dollar
limits on compensatory damages for actual economic
loss- r bodily injury must be approved & - -
- fo -- a 2/3
vote of each house - - legislature.
--- of the
Section 2. Effective Date. This amendment is
effective on approval of the electorate."
Plaintiffs filed their application for writ of injunc-
tion on August 28, 1986. On September 2, 1986, this Court
ordered that briefs be filed by the parties, reserving the
issue of whether jurisdiction would be accepted. On October
7, 1986, oral arguments were heard and this Court denied
plaintiffs' application.
Three members of the Court have already issued their
dissent to this opinion. The dissent has addressed in sub-
stantive detail each of the issues raised by the parties. We
do not respond to the detailed issue analysis of the dissent
because, as more fully explained below, we concluded that it
would be improper for us to consider the issues prior to the
election.
I.
What initiative matters are appropriate for exercise of
the Court's pre-election jurisdiction?
Plaintiffs assert that this matter is appropriate for
assumption of jurisdiction under the criteria set forth in
State ex rel. Greely v. Water Court of State (Mont. 1 9 8 5 ) ,
691 P.2d 833, 41 St.Rep. 2373, final opinion (1985), 712 P.2d
754, 42 St.Rep. 1856: it involves a constitutional issue of
major statewide importance, the questions involved are pure
legal questions of statutory or constitutional construction,
and urgency and emergency factors make the normal appeal
process inadequate. The Greely case involved. challenges to
acts of the Water Court of the State of Montana under the
then-existing statutes. It was not, like this case, a chal-
lenge to a proposed law. For that reason, we conclude that
the Greely factors are not dispositive of the issues here.
In a pre-election challenge to the constitutionality of an
initiative, other considerations are also involved.
The reasons which have been recognized for this Court's
intervention in the initiative process prior to an election
are quite limited. This Court has assumed original jurisdic-
tion over pre-election challenges when the initiative was not
properly submitted under the election laws, e.g., State ex
rel. Livingston v. Murray (1960), 137 Mont. 557, 354 P.2d
552, and where the initiative was unconstitutional on its
face, e.g., State ex rel. Steen v. Murray (1964), 144 Mont.
61, 394 P.2d 761.
Both the Livinqston and Steen cases were decided prior
to the adoption of the 1972 Montana Constitution. Also of
particular importance is the Rule 17, M.R.App.Civ.P., provi-
sion that the assumption of original jurisdiction is
discretionary with this Court.
The right retained by the people of Montana to change
our Constitution by initiative is unique. The people do not
have such a right under the federal Constitution nor under
many state constitutions. In Montana this right of constitu-
tional change by initiative was first inserted in the 1972
Constitution. As we stated in our opinion in State ex rel.
Mont. School Board Ass'n. v. Waltermire (Dec. 11, 1986) , No.
86-411, we should decline to interfere with this right of
constitutional change by initiative unless it appears to be
absolutely essential.
I1
Is the Initiative invalid because it presents more than
one amendment in a single ballot, in violation of Mont.
Const. Art. XIV, § 11?
The plaintiffs say that the Initiative seeks to: 1)
remove the fundamental right to bring a civil action in a
court of law; 2) remove from constitutional protection the
right to be compensated for every injury; 3) change the
standard of constitutional review under Art. 11, § 16 to
rational basis analysis; 4) eliminate the authority of the
Court to review legislative enactments under Art. 11, §
, 16;
5) give the legislature sole authority to determine the
existence and extent of individual rights and remedies; and
6) require a 2/3 majority of the legislature to approve
specific dollar caps on damages. Plaintiffs argue that these
should not all be grouped into one initiative. The defen-
dants contend that it is entirely proper that an initiative
be multifaceted so long as it affects only one section of a
constitution as this one does.
Even if plaintiffs' view is correct, this type of multi-
plicity is not a proper basis for this Court's intervention
in the initiative process prior to election. This challenge
does not constitute the type of question of unconstitutional-
ity on the face of the Initiative over which this Court has
previously accepted pre-election jurisdiction. Neither is
this a challenge of the propriety of submission of the Initi-
ative to the voters. Without ruling upon the merits of the
contention, we declined to consider this issue prior to
election.
I11
Is the Initiative unconstitutional because it attempts
to transfer judicial power to the legislative branch in
violation of the doctrine of separation of powers?
Plaintiffs argue that the Initiative renders the rights
declared in Art. 11, $ 16 of the Montana Constitution mean-
ingless because of the provision that the section "shall n ~ t
be construed as a limitation upon the authority of the legis-
lature" to enact statutes affecting the rights. They main-
tain that the amendment deprives the courts of the right of
review over any legislative enactments pursuant to the sec-
tion, thereby violating the doctrine of separation of powers.
Again, unless an initiative is clearly unconstitutional
on its face or has been improperly submitted, it would not be
appropriate for this Court to remove it from the ballot prior
to the voters' consideration. This challenge is not ad-
dressed to the facial constitutionality of Initiative 30, but
to its constitutionality as applied. It could be argued that
the voters could go so far as to completely eliminate Mont.
Const. Art. 11, S 16, without affecting the powers of the
judicial branch of state government. For those reasons we
declined to exercise pre-election jurisdiction over this
question.
IV
Are the Attorney General's statement of purpose and
statement of implication untrue, misleading, and prejudicial?
The statutory procedure for opponents' challenges to an
initiative's title (the statement of purpose and statement of
implication prepared by the Attorney General) is set out at
S 13-27-316(2), MCA. That section provides that the title of
an initiative may be challenged in the District Court for
Lewis and Clark County within ten days of the date of certi-
fication to the governor.
This Initiative was certified to the Governor on July 3,
1986. Plaintiffs failed to make any objection to the title
under the procedure outlined in S 13-27-316(2), MCA, and have
shown no reason justifying this failure. We conclude that
this issue is exactly the type of challenge contemplated
under S 13-27-316(2), MCA, and discussed more fully in our
opinion in State ex rel. Boese v. Waltermire (Dec. 10, 1986),
No. 86-383. We will not lightly interfere with the constitu-
tional right of the people of Montana to make and amend our
laws through the initiative process, nor with the legisla-
ture's protection of that right through statutory provision
for timely challenges to initiative titles. We therefore
declined to accept jurisdiction where the procedure in
5 13-27-316 (2), MCA, could have been, but was not, followed.
Plaintiffs' application for relief was denied without
prejudice.
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 86-400
STATE OF MONTANA ex rel. Montanans
for the Preservation of Citizens'
Rights, the Montana State AFL-CIO;
the WOMEN'S LAW CAUCUS; TYNDALL COX;
GARY HENRICKS and PAM McCLAIN,
individually and as next friend of
her minor daughter, FELICIA McCLAIN,
Plaintiffs and Relators,
JIM WALTERMIRE, Secretary of State
of the State of Montana, MIKE GREELY,
Attorney General of the State of Montana;
GARY PRINGLE, Election Administrator and
Clerk and Recorder of Gallatin County,
Montana, individually and as representative
of the Class of All Election Administrators
and the Clerk and Recorders of the State of
Montana; and the STATE OF MONTANA,
Defendants and Respondents,
and
MONTANA LIABILITY COALITION,
Real Party in Interest.
O R D E R
Plaintiffs and Relators have filed an original proceed-
ing in this Court for Writ of Injunction and other appropri-
ate relief, in which they challenge the constitutionality of
Constitutional Initiative 30, the "liability initiative."
Briefs, motions, and other materials have been filed by
Plaintiffs and Relators, Defendants and Respondents, and Real
Party in Interest. Oral argument was held before the Court
on this date. The Court has concluded it is advisable to
immediately issue its Order to inform all parties of the
result.
IT IS ORDERED:
(1) That the Application for Writ of Injunction and
Other Appropriate Relief is denied in its entirety, without
prejudice to consideration of the issues in other
proceedings.
(2) That an opinion of this Court will be issued at a
later date setting forth the basis for this Order.
?t
7-
DATED this -day of October, 1986.
47~
~:~ Chief Justlce
The Honorable Joseph B. Gary, sitting in place of Justice
Frank B. Morrison, Jr., would grant the writ of injunction.
Justice John C. Sheehy and Justice William E. Hunt. Sr.,
dissenting:
We dissent and would grant the injunction. Our opinion
dissenting will follow in short order.