No. 86-383
I N THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA, e x r e l . , ROBERT
BOESE,
P e t i t i o n e r a.nd R e l a t o r ,
J I M WALTERMIRE, Secretary of S t a t e ,
S t a t e of M o n t a n a ,
Defendant,
and
THE CONSUMER COMMITTEE TO DECONTROL
M I L K P R I C E S I N MONTANA,
R e a l P a r t y i n Interest.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For ~etitioner/Relator:
Linne1l;Newhall & Martin; K e v i n C. Meek, G r e a t F a l l s ,
Montana
F o r Respondent:
H o n . 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
E l w o o d E n g l i s h , S e c r e t a r y of S t a t e ' s , H e l e n a , M o n t a n a
F o r R e a l P a r t y i n Interest:
M i c h a e l D. C o k , B o z e m a n , M o n t a n a
S t e v e M c G r e g o r , p r o se f o r C o n s u m e r C o m m i t t e e t o D e c o n -
t r o l Milk P r i c e s , B o z e m a n , M o n t a n a
Submitted: October 9 , 1 9 8 6
Decided: December 1 0 , 1 9 8 6
Filed: 5EC101986
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Petitioner asked this Court to declare Initiative 104
(the Milk Decontrol Initiative) void and invalid, and to
enjoin the Secretary of State from allowing it to appear on
the November 1986 ballot. In an order signed October 2,
1986, we denied petitioner's request. This opinion explains
the reasoning behind that order.
The issues are:
1. Does petitioner have standing to bring this action?
2. Does the title to Initiative 104 clearly express the
subject of the Initiative as required by the Montana Consti-
tution, and does it violate the Constitution by failing to
disclose the creation of cooperative associations and the
repeal of Fair Trade Rules statutes?
In March 1986 the form of the Milk Decontrol Initiative
was approved by the Secretary of State, pursuant to
§ 13-27-202(3), MCA. The Attorney General then set forth the
statement of purpose, fiscal note, and statement of implica-
tion which would appear on the Initiative for circulation.
- 5 13-27-312, MCA.
See
The proponents of the Initiative requested review in
District Court of the statement of purpose and the fiscal
note pursuant to § 13-27-316(1), MCA. A compromise agreement
was reached between the proponents and the Attorney General.
Then the petition was circulated to Montana voters, and
enough voter signatures were obtained for the Initiative to
be placed on the ballot.
The petitioner, a Montana taxpayer, property owner,
elector, and milk producer, asks us to remove the Initiative
from the ballot. He argues that this Court has jurisdiction
to exercise pre-election review of an initiative and that he
has standing to bring this action. He asserts that the title
of the Initiative is defective in several ways: (1) it
misleads the voters by implying that the state would lose
only some, and not - of its power to regulate the process-
all,
ing, storage, and distribution of milk; (2) it does not
disclose that the Initiative gives "special powers and privi-
leges" to cooperative associations; and (3) it fails to
disclose the Initiative's repeal of the Rules of Fair Trade
Practices, 88 81-23-303 through -305, MCA.
I
Does petitioner have standing to bring this action?
Petitioner correctly states that he has standing to
bring this action under this Court's decision in State ex
rel. Wenzel v. Murray (1978), 178 Mont. 441, 585 P.2d 633.
That case involved a pre-election challenge to a proposed
initiative which would have given Montana voters the power to
approve or reject any proposed nuclear power facility certi-
fied under the Montana Major Facility Siting Act. This Court
held " [t]he relator as a taxpayer, property owner and elec-
tor, has standing to sue to prevent the waste of public
monies . . . and accordingly had the right to bring this
action." Wenzel, 585 P.2d at 638. Like that relator, peti-
tioner is a taxpayer, property owner, and elector. He has
standing to bring this action.
I1
Does the title to Initiative 104 clearly express the
subject of the initiative as required by the Montana Consti-
tution, and does it violate the Constitution by failing to
disclose the creation of cooperative associations and the
repeal of Fair Trade Rules statutes?
Section 13-27-316(2), MCA, provides for challenges to an
initiative's title by opponents of the initiative:
If the opponents of a ballot measure believe that
the statement of purpose, the statements of impli-
cation of a vote, or the fiscal statement formulat-
ed by the attorney general pursuant to 13-27-312 do
not satisfy the requirements of 13-27-312, they
may, within 10 days of the date of certification to
the governor that the completed petition has been
officially filed, file an action in the district
court in and for the county of Lewis and Clark
challenging the adequacy of the statement and
requesting the court to alter the statement.
The legislative history of 5 13-27-316, MCA, indicates that
the legislature intended a clear and speedy means by which
both proponents and opponents could attack the sufficiency of
statements of purpose and implication and fiscal notes. The
statutory procedure allows district court and Supreme Court
review for correction of any deficiencies so that the initia-
tive might still be presented to the voters at the general
election. In the present case, the Initiative was certified
to the Governor on July 10, 1986. Under the statute the
opponents had 10 days from then to file an action in the
District Court of Lewis and Clark County. Instead, the
petitioner waited until August 19, 1986, to file his petition
in this Court. Clearly he failed to make any attempt to
follow the statutory procedures of 5 13-27-316(2), MCA.
It is important to consider the procedure set forth in
S 13-27-316(2), MCA, with other sections covering initia-
tives. Under 5 13-27-202(3), MCA, before a petition for an
initiative may be circulated for signatures, a sample sheet
must be submitted to the Secretary of State. The Secretary
of State then refers a copy of the petition to the Attorney
General for his approval and the Secretary of State and
Attorney General each review the petition and approve or
reject the form. Last, under paragraph 4 of S 13-27-202,
MCA, the Secretary of State makes a final decision on approv-
al or rejection of the form of the petition. If the Secre-
tary of State approves the petition, he sends written notice
to the proponents within 28 days of submission. If the
Secretary of State rejects the petition, he must send written
notice to the proponents within 14 days of submission.
The proponents have a right under 5 13-27-316(1), MCA,
within 10 days of notice of the Secretary of State's rejec-
tion or approval, to file an action in the District Court of
Lewis and Clark County challenging the adequacy of the state-
ment. In the present case that was done and an agreement was
reached so that the challenge was satisfied.
The notice provisions pertaining to the opponents of the
measure, such as the petitioner in the present case, do not
require that the opponent immediately come into the District
Court or otherwise act in order to oppose an initiative.
Instead, the statute reasonably allows the initiative proce-
dure to go ahead. The proponents may proceed to obtain
signatures on the petition. If they are able to obtain
sufficient signatures to meet the statutory requirements for
placing the initiative on the ballot, then the petitions must
be filed with the Secretary of State. At that point the
Secretary of State under 5 13-27-308, MCA, is required to
certify to the Governor that the completed petition has been
officially filed, entitling the initiative to be placed on
the ballot. It is that certification to the Governor which
triggers the time in which the opponents of the measure may
act. Under 5 13-27-316(2), MCA, the opponents have 10 days
after that date to file a challenge in the District Court of
Lewis and Clark County. This procedure allows the opponents
to an initiative to prepare for a court challenge from the
time the petition is initiated until ten days after all
necessary voter signatures have been obtained, but does not
require them to act until after sufficient signatures have
been obtained to allow a vote by the people of Montana.
While the ten day period allowed after certifica.tion is not
long, the statutes provide for immediate access to the
courts, S 13-27-316(3) (a), MCA, and for correction of the
challenged title in time so the initiative can still appear
on the ballot. The five days allowed for appeal to this
Court is similarly of significant benefit because it allows
this Court to review the challenge without a time delay which
would interfere with the initiative's appearing on the bal-
lot. We conclude this is a rea.sonable procedure so far as
opponents are concerned.
Petitioner argues that this Court may exercise original
jurisdiction over this matter despite his failure to comply
with S 13-27-316 (2), MCA. He cites State ex rel. Steen v.
Murray (1964), 144 Mont. 61, 394 P.2d 761. In that case, the
Secretary of State was enjoined from placing a gambling
initiative on the ballot. This Court held that the initia-
tive was unconstitutional on its face because it directly
contradicted Art. XIX, S 2, Mont. Const. In contrast, the
petitioner here has failed to demonstrate that the Milk
Decontrol Initiative is unconstitutional on its face. Addi-
tionally, the opinion in Steen was issued before 5 13-27-316,
MCA, was enacted.
This Court has exercised jurisdiction to consider a
pre-election constitutional challenge to an initiative since
the enactment of § 13-27-316, MCA. That case, State ex rel.
Harper v. Waltermire (Mont. 1984), 691 P.2d 826, 41 St.Rep.
2212, involved a challenge to the text, not the title, of the
initiative.
Petitioner cites Art. V, S 11 (3), Mont. Const., as the
basis for his objections to this Initiative. That section
requires that "[elvery bill . . . sha.11 contain only one
subject, clearly expressed in its title." We have a fair
provision at § 13-27-316, MCA, which allows adequate opportu-
nity for both opponents and proponents to go before both the
district court and this Court. To excuse the opponent from
complying with the statute would eliminate a primary inten-
tion of the statute: to allow any insufficiencies of title to
be corrected in time for the initiative to be placed on the
ballot. If we proceeded as requested by the petitioner, we
would substantially negate the initiative right by allowing
the petitioner in effect to lie in wait in the weeds and have
an initiative eliminated even though the title was correct-
able under the statutory provisions.
We conclude that to effectively protect and preserve the
right which Montanans have reserved to themselves to change
the laws of this State through the initiative process,
pre-election judicial review should not be routinely conduct-
ed. We hold that the petitioner has failed to demonstrate
any reason to allow him to sidestep the procedural require-
ments of 5 13-27-316 (2), MCA. In our order dated October 2,
1986, we therefore dismissed the petition.
We Concur:
Mr. Justice John C. Sheehy, concurring and dissenting:
I concur that the petition here should be dismissed. I
dissent from the reasons stated by the majority for the
dismissal.
In the general election of November 4, 1986, Initiative
104 d.id not muster enough votes from the electorate to become
law. Because of the failure of the Initiative to gain
passage, the issues raised by the petition, filed before the
general election, have become moot. For that reason alone,
the petition should be dismissed. There is no reason to
discuss the issues raised by the petition further.
I dissent from the reasons given for the dismissal of
the petition by the majority because those reasons are wrong
in law and in logic.
The implication to be gained from the majority opinion
is that unl-ess the opponents of an initiative measure proceed
under S 13-27-316(2), MCA, they are thereby precluded from
any other judicial relief from a flawed initiative proposal.
That implication is reached without a.n adequate discussion in
the majority opinion as to the statute that is involved nor
its interpretation.
Section 13-27-316 (2), is permissive rather than
mandatory. Its permissive character is not discussed in the
majority opinion and for purposes of this dissent, I set it
forth here.
(2) If the opponents of a ballot measure believe
that the statement of purpose, the statements of
implication of a vote, or the fiscal statement
formulated by the attorney general pursuant to
13-27-312 do not satisfy the requirements of
13-27-312, they may, within 10 days of the date of
certification to the governor that the completed
petition has been officially filed, file an action
in the district court in and for the county of
Lewis and Clark challenging the adequacy of the
statement and requesting the court to alter the
statement. (Emphasis added.)
Two things ought to be clear from a rea.ding of the
foregoing statute. First, it pertains only to statements,
and secondly, it is permissive, since the statute uses the
word "may."
In our dissent in Cause No. 86-400, entitled State of
Montana, ex r e . , Montana Citizens for the Preservation of
Citizens' Rights, et al., plaintiffs and relators vs. Jim
Waltermire, Secretary of State, et al., defendants and
respondents, and Montana Liability Coalition, real party in
interest, we discussed the effect of that statutory
provision. We said in our dissent:
It is important to note that S 13-27-316 is not an
imperative statute. The word "may" must be
interpreted as permissive only. This Court has had
a bitter experience in interpreting the word "may"
as "must," which it did in State ex rel. Interstate
Lumber Company v. District Court (1918), 54 Mont.
602, 172 P. 1030. The holding was repudiated in
Hardenburgh v. Hardenburgh (1944), 115 Mont. 469,
146 P.2d 151, and in Johnson v. Ogle (1945), 117
Mont. 419, 159 P.2d 337. Following up on these
cases, this Court in Love v. Mon-0-Co Oil
Corporation (1958), 133 Mont. 56, 319 P.2d 1056,
again decided that the word "may" should not be
given the force of "must." Our last expression on
the subject occurred in Clark Fork Paving, Inc. v.
Atlas Concrete and Paving (1978), 178 Mont. 8, 582
P.2d 799, 781, where we said that the word "may" as
an exception to the statute [a venue statute]
"needs to be read as a permissive word, and not a-s
the imperative must. "
The majority opinion does not discuss this statute nor
whether it is now by implication giving the word "may" the
imperative force of "must" as far as legal actions to correct
statements in initiative proposals are concerned. The
implication in the majority opinion is that a failure to
apply to the District Court in Lewis and Clark County within
LO days of the day of certification to the governor precludes
all further judicial review of initiative proposal. That Is
an unwarranted, unnecessary and improper restriction on the
judicial power. When initiative proposals affect directly
the interests of the whole people of this state, when the
public is vitally interested in the matter, and when the
liberties or the property of the people of this state are
involved, we should as a Court insist on the full
jurisdiction of the district courts and of this Court to
review and protect those rights and liberties.
The second issue adverted to by the majority opinion but
not properly treated is whether Initiative 104 contained more
than one subject.
Article V, $ 11 (3), 1972 Mont. Const., provides that:
" [elach bill . . . shall contain only one subject, clearly
expressed in this title." We held in State ex rel. Steen v.
Murray (1964), 144 Mont. 61, 66, 394 P.2d 761, 764, that the
provisions of a like constitutional section in the 1889
Montana Constitution applied to initiative procedures.
Because Initiative 104 failed to gain the approval of
the electorate, whether the initiative was multiplicitous is
also now moot. Instead of so treating the issue, the
majority opinion considers the issue foreclosed because the
opponents did not bring an action within 10 days from the
governor's certification under $ 13-27-316(2), MCA. That
basis for handling the issue is clearly wrong. Section
13-27-316 (2) applies to actions brought with respect to the
statements contained in the Initiative. The statute does not
apply to objections such as multiplicity in an initiative
proposal. An initiative which is multiplicitous cannot be
cured through an amendment of a statement of purpose because
the statement itself will be multiplicitous if it correctly
portrays the effect of the initiative. Clearly the right to
resort to the judicial power to correct multiplicitous
initiatives cannot be considered circumscribed, limited and
prohibited by S 13-27-316 (2).
For the reasons foregoing, although I concur in the
dismissal of the petition here, I cannot agree with the
majority in the reasons given for the dismissal.
Justice
I concur in the above dissent of Mr. Justice Sheehy.
I join in the dissent of Mr. Justice Sheehy.