No. 8 6 - 4 0 0
IN THE SUPRENE CCURT OF THE STATE OF MOW"NA
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, Rozeman,
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 , 1986
Decided: 06i 2 :' 1 8
96
Clerk
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 & R-elators,
VS.
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 & Respondents,,
and
MONTANA LIABILITY COALITION,
Real Party in Interest.
DISSENTING OPINION
On October 7, 1986, in an original proceeding before
this Court captioned as above, the majority of this Court,
consisting of Chief Justice J. A. Turnage and Justices Fred
J. Weber, John Conway Harrison and L. C. Gulbrandson handed
down a n Order denying the application for writ of injunction
and other appropriate relief in its entirety.
The remainder of the Court, consisting of Justices John
C. Sheehy, William E. Hunt, Sr. and the Hon.. Joseph B. Gary,
District Judqe, sittj.nq in p3.ace of Mr. Justice Frank R .
Morrison, Jr., dissented from the majority Order, stating
they would grant the injunction. We file this Dissenting
Opinion in accordance with § 3-2-204, MCA, in support of our
Dissent to that Order.
In the Order, the majority recited that the application
was denied "without prejudice to consideration of the issues
in other proceedings." We do not know if this means that the
majority will defer consideration of the issues as we discuss
them in this Dissent. It is our position that the issues
raised by the application and the opposition thereto must be
tackled immediately and this Opinion will therefore entail a
full discussion of the issues.
JURISDICTION AND STANDING
In this Dissent, we will refer to all of the plaintiffs
as "relators." The real party in interest in this case is
the Montana Liability Coalition, to which we will refer as
the "Coalition." The remaining defendants and respondents
are incidental parties brought before us because they are
elected officials having to do with the conduct of elections
in this state, including the coming general election on
November 4, 1986.
Relator Montanans for the Preservation of Citizens'
Rights is an - - group of individual Montana citizens,
ad hoc
voters and taxpayers formed for the purpose essentially of
opposing proposed Constitutional Initiative No. 30, now set
for the ballot on November 4, 1986, who claim they are
individually, directly and adversely affected by the proposed
Initiative. Relator Montana State AFL-CIO is a federation of
labor organization workers who have rights and remedies
protected by Art. 11, S 16 of the Montana Constitution which
may be impaired by Constitutional Initiative No. 30. Relator
Women's Law Caucus is a section of the Student Bar
Association of the University of Montana, Law School, who
contend that the preservation and enhancement of women's
rights is involved in the Initiative and is adversely
threatened thereby. Relator Tyndall Cox is a Montana
citizen, voter and taxpayer who has sustained a Workers'
Compensation injury, and who has a third-party action against
a contractor who may be liable for all or part of the
injuries he sustained and contends his cause of action is
adversely threatened by the Initiative. Relator Gary
Henricks is 31 years of age, a citizen, and a paraplegic from
an accident for which he is presently maintaining an action
against an automobile manufacturer. Henricks contends that
he has a right to full compensation for his injuries which is
directly and adversely affected by the proposed Initiative.
Relator Pam McClain is a citizen, taxpayer, voter, the mother
of a minor daughter who has sustained a severe and disabling
brain injury. McClain is presently maintaining a court
proceeding for damages and again she contends the proposed
Initiative will adversely affect the claim.
Constitutional Initiative No. 30, set out more fully
hereafter in this Dissenting Opinion, relators contend, and
the dissenters agree, has serious constitutional defects
which render the submission of the Initiative to the voters
in the general election of November 4, 1986 impermissible.
Rela-tors contend that unless enjoined by this Court, the
election officials will submit to the electors in the general
election of November 4, 1986 CI-30 as it is now constituted,
and that the same will adversely affect their fundamental
rights to pursue full redress for injury to property, person
or character; that no other speedy or adequate remedy lies to
them at law or otherwise and that the following issues should
be considered by this Court:
1. The statement of purpose of the Attorney General and
the statements of implication contained in the Initiative are
false and misleading.
2. The proposed Initiative invades the separation of
powers doctrine by transferring judicial a-uthority tc the
legislature.
3. The Initiative does not meet the constitutional
requirement of presenting a single subject to the voters.
The Coalition responds:
1. That the issue of the sufficiency of the statements
of the Attorney General is barred b 7 S 13-27-316 (2) , MCA and
l
by la-chesby the relators.
2. That the Initiative merely restores standards of
judicial review recently enlarged by this Court as to the
right of full redress.
3. That the separation of powers provision of the
Montana Constitution authorizes the division of judicial
powers under provisions of Art. 111, § 1.
4. That the Initiative presents a single subject,
though multi-faceted, to the electors.
The Coalition further responds that if this Court
accepts jurisdiction on the sufficiency of the statements of
the Attorney General, reasonable minds could differ on
whether the statements are false, partial or prejudicial.
It is significant that in its response, while the
Coalition denies our jurisdiction of the issue of the
sufficiency of the Attorney General's statements, it does not
contest this Court's j~xrisdiction immediately to hear and
decide the constitutional issues raised by the relators as to
their claims of defects in CI-30.
It is clear, therefore, that the pleadings present
justiciable issues which involve a statewide effect, and have
deep constitutional implications. Unless this Court
determines the issues, substantial deleterious harm may
result. Accordingly, the parties have standing and this
Court should accept immediate jurisdiction to determine the
issues presented. Grossman v. State of Montana, et al.
(Mont. 1984), 682 P.2d 1319, 41 St.Rep. 804. See S
3-2-205 (2), MCA.
The effect of the majority Order to which we have
dissented therefore is to decline to decide the substantive
issues when all parties concede they should be decided by us.
The refusal of the majority in this case to decide such
issues is one of the reasons we have dissented.
WHETHER THE ISSUE OF THE SUFFICIENCY OF THE ATTORNEY
GENERAL'S STATEMENTS IS BARRED
The 1972 Montana Constitution provides that the people
may propose constitutional amendments by initiative. Art.
XIV, 5 9. When a petition containing a sufficient number of
signatures has been filed with the Secretary of State within
the time required by the constitution or by law, it is the
duty of the Secretary of State to certify immediately to the
Governor that the completed petition has been officially
filed. Section 13-27-308, MCA. In this case, the Attorney
General certified the CI-30 to the Governor on July 30, 1986.
It is the duty of the Secretary of State to transmit a copy
of the ballot form to the Attorney General on the same d.ay
the completed petition is certified to the Governor. Section
13-?7-310, MCA. It is the duty of the Attorney General,
through procedure set up in § 13-27-312, MCA, to provide for
the ballot a statement of purpose, and statements of the
implications of a vote for and against the measure. The
statement of purpose and the statements of implication must
express a true and impartial explanation of the proposed
ballot issue in plain easily-understood language and may not
be argumentative or written so as to create prejudice for or
against the measure. Section 13-27-313(4), MCA. Persons who
oppose the Initiative and do not believe that the statements
of purpose and of implication satisfy the requirements of law
may within ten days of the date of certification to the
Governor petition the District Court in Lewis and Clark
County for relief.
Relators did not proceed in the District Court, but
instead filed an original action in this Court on August 28,
1986. In the meantime, the Secretary of State had certified
the ballot to the county election administrators on August
20, 1986, and had awarded the printing contract for the voter
information packet on August 21, 1986.
The Coalition contends that the Relators are barred in
this Court because they did not first seek relief in the
District Court. Yet the statute upon which the Coalition
relies for opponents' action to commence in the District
Court is at most permissive. Section 13-27-316(2), provides:
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 for the County of Lewis and
Clark challenging the adequacy of the statement and
requests to the court to alter the statement.
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 prior
experience with 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 as the imperative must."
The reason given by the majority for the order denying
relief, as that reason was expressed to us in this case, is
that had the relators brought their action in the District
Court, and there raised the sufficiency of the statement of
purpose and the statements of implication, the District Court
could have cured the same in the manner provided S 13-27-316,
MCA. Since 5 13-27-316, is purely permissive, however, the
majority, in denying relief, must be relying on laches, the
other ground raised by the Coalition in its opposition to
consideration of the sufficiency of the statements of purpose
and implications.
Laches is really a species of equitable estoppel.
Generally it applies when the inaction of one party results
in prejudice to another party or induces another party to
change his position to his prejudice. Even though it may be
argued that the Coali-tion has been prejudiced because the
statement could have been altered in the District Court, that
argument cannot apply to this case. The ten days provided in
the permissive statute would be insufficient in this case to
formulate the issues that r e l a t e to the statements here
involved. Further it would be impossible, as the Coalition
has argued before us, for the District Court to compose a
statement of 100 words which would adequately advise the
voter of the issues involved in CI-30. Moreover, there are
parties interested, not represented here, whose rights are
involved, the thousands of Montana residents whose
fundamental rights to full redress before the courts are
jeopardized by the Initiative.
This Court has at least a minimum duty to make certain
in a proper case, when this Court has the power to act, that
when voters exercise their ballot right to determine a.
constitutional initiative, they are adequately informed of
the purpose of the initiative in a true and impartial manner.
The majority here by their Order denying relief place greater
stock in compliance with a permissive statute than in making
certain that initiative issues are truly and impartially
stated.
There is a further and very compel'ling reason why this
Court should not hesitate now to examine the sufficiency of
the statements in CI-30. That reason is that under the
statutory scheme for initiatives, the opportunity of
opponents to object to statements approved by the Attorney
General comes far too late in the game. Before a petition
for initiative action is ever circulated for signatures, its
form must first be submitted to the Legislative Council, to
the Secretary of State, and to the Attorney General. Section
37-27-202, MCA. These officials must review the form of the
petition, including the statement of purpose and the
statements of implication and approve or reject the form of
the petition before signatures are solicited. There is no
statutory provision then for an objector to the Initiative to
object to the statements before signatures are procured
although the proponents of the measure are given the right
then to go to court if they do not agree with the approved
form of the petition. Section 13-27-316(1), MCA. Thus in
this case, the petition itself as it was circulated for
signatures, contained a statement of purpose and statements
of i.mplication approved by the Secretary of State and the
Attorney General, which as we shall demonstrate were false.
Who can say that the signatures would have been obtained if
the signers knew in truth what the form of the Initiative
masked? There are no equitable grounds for the application
of laches against the relators here under the facts of this
case. If the District Court or this Court were to revise the
statement of purpose to its true intent, and we permitted a
vote on a revised form in this case, the issue on the ballot
would be substantially different from the issue petitioned
for by those signing the petition.
The final point, which we hope will be raised some day
in a proper case, is that the adoption of § 13-27-316, MCA,
by the Legislature is in excess of its legislative power. It
is a rule of procedure and rules of procedure are the
business of this Court subject only to disapproval by the
Legislature. Art. VII, $ 2 (3), 1972 Montana Constitution.
The last contention on which laches might be based is
the argument of the elected officials that the ballots have
been printed and sent out, and that it would be expensive now
to change them. Such an argument is balderdash. We have
interrupted the ballot process at as close or closer
intervals. See for example State ex rel. Harper v.
Waltermire (Mont. 1984), 691 P.2d 826, 41 St.Rep. 2212.
THE FALSITY OF THE BALLOT ISSUE
The basic premise of CI-30, is as follows. As the issue
will appear on the ballot, the voters will be given t-he
impression that by their affirmative vote, the Legislature
- - first time will have the right to determine the
for the
rights and remedies for injury or damage to person, property
or cha.racter. That premise is baldly false. As long as we
have been a state, the Legislature has had that power.
We set out for the reader the full text of CI-30, as it
will appear on the ballot:
[ ] FOR amending the Montana Constitution to
authorize the Legislature to determine the
rights and remedies for injury or damage to
person, property, or character.
[ ] AGAINST amending the Montana Constitution to
authorize the Legislature to determine the
rights and remedies for injury or damage
to person, property, or character.
The language of the Attorney General's "Statement of
Purpose" will not appear on the ballot, nor will there appear
the text of the Initiative as it is proposed. If the voter
desires to examine the Attorney General's explanatory
statement, he/she must look to the "1986 Voter Information
Pamphlet" promulgated by the Secretary of State. For the
benefit of the reader, we set forth in full the Attorney
General's explanatory statement of purpose:
This initiative would amend the Montana
Constitution to authorize the Legislature to
determine the rights and remedies for injury or
damage to person, property, or character.
Currently the Constitution does not permit limits
on these rights and remedies. A two-thirds vote of
each house of the Legislature would be required to
set dollar limits on damages for economic loss
resulting from bodily injury.
Further, if the voter desires to acquaint
himself/herself with the full text of the Initiative to
determine what it says, he/she will have to find it on a
separate page of the 1986 Voter Information Pamphlet.
Only in those counties, if any, not having an
abbreviated form of ballot ( 13-27-501, MCA) will the
Attorney General's explanatory statement and the statements
of implication upon which the vote is taken appear in
juxtaposition to each other.
For the benefit of the reader, the full text of the
Initiative, as it appeared on the signed petitions, is here
set forth:
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
justice shall - administered without sale, denial,
be
- delay.
or
(2) No person shall be deprived of this *a&&
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 and =jast&ee she&& be
admi~isteredwitheat se&e, de~&a&,e r desay.
- - section shall - - construed - -a
(3) This not be as
limitation upon the authority - - legislature to
of the
enact statutes establishing, limiting, modifyinc
or abolishing remedies, claims for relief, damaqes,
-
- allocations of responsibility for damages - any
or in
civil proceedin* except that any express dollar
limits on compensatory damages for actual economic
- fo
loss- ~ b o d i l yinjury - -be approved
must a 2/3
- -
vote of each house - - legislature.
--- of the
Section 2. Effective Date. This amendment is
effective on approval of the electorate."
[NOTE: Words struck out indicate words to be deleted by the
Initiative. Underlining indicates new material.]
The so-called "Statement of Purpose" of the Initiative
that was approved by the Attorney General and the Secretary
of State a.nd probably by Legislative Council, before the
petitions for signatures were circulated, appeared on all the
petitions that were signed. It will not appear on the ballot
itself. The statement is palpably false.
The Statement of Purpose starts out by telling the voter
that the Initiative " F J O U amend" the Montana Constitution
~~
"to authorize the Legislature to determine the rights and
remedies for injury and damage to person, property or
character." As we will demonstrate below, the Legislature
has always had that authority. The next sentence of the
Statement of Purpose, however, is particularly misleading and
deceitful. It states, "Currently the Constitution does not
permit limits on these rights and remedies." There is no
legal or statutory basis for that statement.
Art, V, (5 1, 1.972 Montana Constitution provides, h he
Legislative power is vested in a legislature ... " The
1889 Montana Constitution carried the same language. Art. V,
S 1. In State ex rel. DuFresne v. Leslie (1935), 100 Mont.
449, 50 P.2d 959, we said:
The sovereign power of the state rests with the
people. The legislative assembly, as the
authorized representative of the people, exercises
this sovereign power.
... It is very clear that, except for limitations
placed upon the power of the Legislature, first, by
the Constitution of the United States and, second,
by the Constituti.on of the State, the will of the
legislative body may be freely exercised in all
1-egislativematters unrestricted.
100 Mont. 452-453, 50 P.2d 961.
Similar language regarding the plenary power of the
Legislature will be found in Mills v. Stewart (1926), 76
Mont. 429, 247 P. 332; State ex rel. Evans v. Stewart (1916),
53 Mont. 18, 161 P. 309; State v. Camp Sing (1896), 18 Mont.
128, 44 P. 516.
In Shea v. North Butte Mining Company (1919), 55 M o ~ t .
522, 179 P. 499 (amazingly relied on by the coalition), this
Court defended the right of the Legislature to establish a
Workers1 Compensation Act which took away from injured
workers covered by the Act the right to go to court against
their employer. We held that no Constitutional guarantee was
impinged by the abolition through the Legislature of the
injured parties1 common law rights against the employer and
the substitution of a Workers' Compensation Act.
Thus it has always been recognized that the Legislature
has full authority "to determine the rights and remedies for
injury or damage to person, property or character" although
the ballot issue under CI-30 would imply that it has no such
power.
Nor has the Legislature been reticent in using its power
to limit rights and liabilities. It has provided measures of
damages in all civil actions (Title 27, Part 3, MCA) ;
provided for the survival of causes of action in cases of
death, (§ 27-1-501, MCA); accorded minors the right to bring
a civil action, ( S 27-1-511, MCA); accorded immunity from
suit for legislative acts and omissions, ( S 2-9-111, MCA);
and this Court has upheld restrictive access to the courts
under the Montana Medical Legal Panel Act (Title 27, Chapter
6, MCA). There are hundreds of other examples.
Plainly, the Legislature is fully authorized to
determine the rights and remedies for injury or damage to
person, property or character, and that authority has been
fully backed by this Court. The bald assertion otherwise
contained in the Statement of Purpose in CI-30 is pointedly
and palpably false.
In the same light, the issue as presented to the voters
on the ballot in the Statements of Implication is equally
deceitful. Thus the voter is told:
[ ] FOR amending the Montana Constitution to
authorize the Legislature to determine the
rights and remedies for injury or damage to
person, property, or character.
[ 1 AGAINST amending the Montana Constitution to
authorize the Legislature to determine the
rights and remedies for injury or damage to
person, property, or character.
No more slick or cunning masking of the true intent of
CI-30 could be devised than what is presented to the voter
here to vote "FOR" or "AGAINST." What voter would not be
"for" giving the Legislature such authority? What kind of
voter would be "against" giving the Legislature such
authority? The designers of the Initiative have cleverly
disguised the derogatory effect of the Amendment by masking
the Statements of Implication in seemingly innocent words and
phrases. The Statements of Implication are fakery of the
worst kind.
FALSITY BY SILENCE
False as the Statement of Purpose and the Statements of
Implication are in what they expressly state, they are
equally false in what they omit to tell the voter or the
petition signer about the effect of the Initiative.
The statements do not tell the voter that passage of the
Initiative will take away every person's right to a speedy
remedy for every injury of person, property, or character.
The word "every" is deleted in the Initiative' s § 16 (1) . The
word "every" in that context has been a part of our State's
Constitution since 1889. See Art. 111, 6, 1889 Montana
Constitution.
The statements do not tell the voter that their right of
redress for injury will no longer be a full right. The words
"this full" describing legal redress were del-eted in 5 16 (2)
of the Initiative.
Perhaps worst of all, the statements do not tell the
voter that all judicial power to review and construe the
validity of actions taken by the Legislature under the
Initiative is taken away. The Legislature will become the
sole judge of the legality of its actions under the
Initiative. It should be clear that such a drastic
transference of the judicial power from the courts to the
Legislature should be a subject of advice to the voter in the
Statement of Purpose and in the Statements of Implication,
and not hidden away in the arcane provisions of the
Initiative.
Finally, the statements do not advise the voter that the
authority given the Legislature if the Initiative passes is
not merely limited to "tort reform. " Every right to remedy,
of every kind and nature, will be locked away from judicial
review whenever the Legislature acts under the Initiative.
It was the purpose of the constitutional delegates in
constructing the 1972 Montana Constitution to open up the
initiative process for the people. They provided in Art.
111, S 4 that the people may enact laws by initiative. They
further provided in Art. XIV, S 9, that the Constitution
itself can be amended by initiative. With respect to
initiatives which propose to enact laws, the Sta.te
Constitution provides that the sufficiency of the initiative
petition shall not be questioned after the election is held.
Art. 1 1 1 43 No such provision appears with respect to
initiatives which would amend the Constitution. It may he
fortunate for the people of this state that the sufficiency
of the petitions for this Constitutional Initiative may be
questioned after the election. Otherwise the high purpose of
the constitutional delegates to preserve in the people the
power to define their constitutional rights could be
subverted by petitions circulated with dubious purposes and
masked intentions.
In fleshing out the initiative rights provid.ed by the
new Constitution, the Legislature sought to prevent what is
happening here with CI-30. It provided in S 13-27-312(4),
MCA, that:
The Statement of Purpose and the Statements of
Implication must express the true and impartial
explanation of the proposed ballot issue in plain,
easily understood language and may not be arguments
or written so it could create a prejudice for or
against the measure.
The Statement of Purpose and the Statements of
Implication, as they appeared on the petitions, and as they
now will appear on the ballot are not true; they are not
impartial; they are argumentative, and written so as to
create a prejudice for the measure.
Before the Order of the majority of this Court in this
case, we have not hesitated to exercise our power to protect
the people in ballot issues. In Sawyer Stores, Inc. v.
Mit~hel.1.~ al.
et (1936), 103 Mont. 148, 62 P.2d 342, this
Court set out language which is applicable today to
statements of implication:
"Description" in these circumstances signifies a
fair portrayal of the chief features of the
proposed law in words of plain meaning so that it
could be understood by the persons entitled to
vote. It must be plain enough to convey an
intangible idea of the scope and import of the
proposed law. It ought not to be clouded by undue
detail, nor yet so abbreviated as not to be readily
comprehensible. It ought to be free from any
misleading tendency, whether of amplification, of
omission, or of fallacy; it must contain no
partisan coloring. It must in every particular be
fair to the voter to the end that intelligent
enlightened judgment may be exercised by the
ordinary person in deciding how to mark the ballot.
If this Court applied the rule of Sawyer to the
Statement of Purpose and the Statements of Implication in
this case, they could not. stand.
In Sawyer, we pinpointed the dilemma of the uninformed
voter facing such a ballot issue:
The majority of qualified electors are so much
interested in managing their own affairs that they
have no time to carefully consider measures
affecting the general public. A great number of
voters undoubtedly have a superficial knowledge of
proposed laws to be voted upon, which is derived
from newspaper comments or from conversations with
their associates. We think the assertion may be
safely ventured that it is only the few persons who
earnestly favor or zealously oppose the passage of
a proposed law, initiated by petition, who have
attentively studied its contents and know how it
will probably effect their private interests. The
greater number of voters do not possess this
information and usually derive their knowledge of
the contents of a proposed law from an inspection
of the title thereof, which is sometimes secured
only from the very meager details afforded by a
ballot which is examined in an election booth
preparatory to exercising the right of suffrage.
If the foregoing quotation be true (as we think it is) all
the more reasons exists for a compliance with the provisions
of our statutes in relation to the descriptive manner which
is required to be placed on the ballot by which a proposed
measure is submitted.
It was the evident thought of the Legislature, in
enacting $ 13-27-202, MCA, requiring the submission of a
sample of the proposed measure and of Statements of Purpose
and Statements of Implication to the Legislative Council, the
Secretary of State, and the Attorney General before petitions
are circulated, that such officials would protect the people
from misleading and deceitful submissions by initiative. In
defense of the public officials in this case, it should be
recognized that the presentation of a sample petition by the
proponents is made - parte, and, as we noted in Sawyer, it
ex
is only the few persons who earnestly favor or zealously
oppose the passage of a proposed law initiated by petition
who attentively study its contents and know how it probably
will affect their interests. Whatever the cause, and however
they slipped through, the statements here do not measure up
to the requirements of truth and impartiality in 5
13-27-312 ( 4 ) , MCA.
Faced with the same situation in Sawyer, supra, this
Court had no patience with the contention that laches
prevented action to remove the ballot from the election.
This Court said:
Defendants contend that plaintiff is estopped to
process this action by reason of laches. For
present purposes, we will consider as true each of
the allegations of defendants' answer in relation
to this phase of the matter. Conceding that
plaintiff did not act herein as expeditiously as it
might have done, yet we are of the opinion that the
action should not be dismissed because of such
failure on the part of the plaintiff. If this
proceeding affected merely the private rights of
the plaintiff, then doubtless the plea of laches
would be good. This Court has jurisdiction, as
noted above, because of the public interest which
attaches here. We are of the opinion that the
liberties of the people of this State should not be
jeopardized merely because the plaintiff has not
acted with the greatest degree of celerity; and
therefore such plea is not sustained.
103 Mont. 181, 62 P.2d 357.
THE INITIATIVE IS IMPERMISSIBLY MULTIFARIOUS
Art. XIV, § 11, 1972 Montana Constitution provides that
"if more than one amendment [to the Constitution] is
submitted at the same election, each shall be so prepared and
distinguished that it can be voted upon separately." The
section applies to ballot measures proposed by the electorate
through the initiative process as well as through those
proposed by legislative enactment. State ex rel. Steen v.
Murray (1964), 144 Mont. 61, 394 P.2d 761.
CI-30 combines six disparate amendments to the
Constitution. In addition, the amendatory effects of CI-30
are not contained in either the Statement of Purpose or the
Sta.tements of Implication.
1. By deleting the word "every" in the first sentence
of Art. 11, S 16, CI-30 removes the constitutional protection
for a speedy trial and right of redress from any injury to
person, property or character.
2. By removing the words "this full" from $ 16 ( 2 ) , the
Initiative removes from constitutional protection the right
of persons to a complete remedy in the courts for the redress
of wrongs.
3. By removing the words "every," and the words "this
full" from § 16, the Initiative removes rights and. remedies,
under equal protection standards, from strict scrutiny by the
courts.
4. By removing the words "every" and "this full" from §
16, the Initiative, in 5 16(3), eliminates the power of any
state court from construing 5 16 in a manner which would
limit the power of the Legislature from adopting any mode or
right of remedy it might seek to provide.
5. Section 16(3), under the Initiative vests in the
legislative branch the sole authority as to the extent of
individual rights and remedies, excluding the right of access
to the courts.
6. CI-30 adds to existing Art. 11, 5 16, of the
Constitution a limitation on the authority of the Legislature
to place d.ollar limits on compensatory damages by requiring
the approval of such enactments by a two-thirds vote of each
house of the Legislature.
The multifariousness of the Initiative is easy to
demonstrate. A voter might wish to preserve the right of
access to the courts for every wrong, but to authorize the
Legislature to limit the remedies so as not to give "full
redress; or the voter might agree to remove the words "every"
and "full" from S 16, but to preserve the rights of the
courts to examine the validity of legislative adoptions under
6 A voter might favor a two-thirds vote of each house of
the Legislature for limits on compensatory damages, but not
the removal of the right of speedy access for every injury,
or for full redress.
By combining all these subjects in a single initiative,
the will of the voter is defeated. We condemned such
proposals in Sawyer Stores, Inc. V. Mitchell (1936) 103
Mont. 148, 62 P.2d 342 stating:
... a submission is void where two propositions
have been submitted so as to have one expression of
the voter answer both propositions, and this for
the reason that voters might thereby be induced to
vote for both propositions who would not have done
so if the question had been submitted singly. As
the voter in this instance might have been against
the adoption of the initiated bill, but desirous of
locating the capital in event the bill carried, the
question should have been separately submitted to
him that he might so express his will. This was
the effect of the holding the court in Lozier v.
Alexander Drug Company, supra, where the Court
said: No opportunity was given the elector
separately to express his will by his vote upon the
question of the adoption or rejection of said
provision as proposed .'
I ..
103 Mont. 173, 62 P.2d 354.
THE TRUE PURPOSE OF THE INITIATIVE
In White v. State of Montana (Mont. 1983), 661 P.2d 272,
40 St.Rep.. 507, 509, 510, this Court held that the language
of present Art. 11, 5 16 guaranties everyone "a fundamental
right" to bring a civil action in a court of law.
In Pfost v. State (Mont. 19851, 713 P.2d 495, 42 St-Rep.
1957, 1966, we held that the words "full legal redress" in
Art. 11, § 16, protected as a "fundamental right, the right
of persons to be fully compensated for every injury." This
holding necessitated the application of the "strict scrutiny"
test when legislative enactments are examined in the light of
equal protection standards.
The purpose of CI-30 is to remove the status of
fundamental right in actions for every injury of person,
property or character, and the equally fundamental right to
full redress for such injury. The further objective of the
Initiative is to remove any such enactments of the
Legislature under the proposed Art. 11, S 16, from judicial
review.
The true purpose of the Initiative, is as we said,
masked from the voter.
In advertising, and in statements to the press, the
proponents of CI-30 are advancing its cause under the banner
of "tort reform.'' A voter might well wish for "tort reform,"
and yet not realize that the proposed amendment would
authorize the Legislature to abolish, limit or modify every
possible right of recovery or remedy without judicial review
under the new 5 16. If adopted, CI-30 will apply not only tc
remedies for tort, but to contract remedies, specific
performance, or any other right or remedy that the read.er
might name.
In exchange for a short term liability insurance crisis,
Initiative 30 will substitute a long-term submission to the
unbridled will of the Legislature. Any student of the
long-time history of the Montana Legislature will recognize
the folly of that direction.
THE MAJORITY MAY BE BOXED FROM FURTHER CONSIDERATION OF
INITIATIVE 30's DEFECTS
In another case before this Court concerning a
constitutional initiative to be submitted to the voters at
the general election of November 4, 1986, (State of Montana
ex rel. Montana School Board Association, et al. v. Jim
Waltermire and Friends of the Constitution, Inc., Cause No.
86-411, decided October 7, 1986) two of the Justices here
dissenting authorized the submission of CI-27 to the voters
although they recognized possible constitutional defects in
the Initiative. District Judge Gary did not participate in
that decision.
CI-27 presented a different aspect from that presented
by CI-30. CI-27 provided that its effective date would be
July 1, 1987. Thus there is time, if that Initiative passes,
for action to be taken to remedy the defects if such defects
do exist. In this case, however, involving CI-30, 5 2 of the
Initiative provides that the effective date shall be
immediately on the approval of the electorate. Thus if the
voters approve, CI-30 will take effect on November 4, 1986,
and be effective from that date.
By voting to allow CI-30 to go to the voters, the
majority in this case may have effectively prevented
themselves from further consideration of the constitutional
issues therein involved. If the provisions of CI-30 become a
part of the Constitution, how can it later be said that they
are unconstitutional?
As we indicated earlier in this Dissent, the question of
the sufficiency of the petitions on which constitutional
CI-30 is based is still open to question. If that be the
reason that the majority permitted CI-30 to go to the voters,
with the thought that such sufficiency could be later
questioned, well and good. Such purpose, however, was not
expressed to the dissenters before the entry of the majority
Order.
By making CI-3 0 effective immediately upon its approval
by the electorate, a serious roadblock exists to any further
examination of the provisions of CI-30 if it is successful,
and its constitutionality is questioned. In the opinion of
the dissenters, the d.elay of the relators (it was a minimal
delay) in getting the issues to this Court is not a
sufficient reason for this Court not to exercise its right
and prerogative, and indeed, its duty, to protect the
electors of this State from false and misleading
manipulations of the initiative process.
We affirm our Dissent to the majority Order in this
cause of October 7, 1986.
' Justice
1 /
We Concur: