IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 86-400
STATE OF MONTANA, ex rel.
Montanans for the Preservation
of Citizens' Riqhts, the Montana
State AFL-CIO; the WOMEN'S LAW
Fe?r Fq'=J
A- ..
:
JGi..?'*-
P L ~ N
1387
s * ~
CfLdw.~ ' C n 4 d o f l
CAUCUS; TYNDALL COX; GARY HENRICKS
and PAM MCCLAIN, individually and
as next friend of her minor daughter, @LhRK O f m i
fm W m U
FELICIA MCCLAIN, BTATE OF FJ~ONTANA
Plaintiffs & Relators,
VS.
JIM WALTERMIRE, Secretary of
State of the State of Montana;
ANDREA BENNETT, State Auditor OPINION AND ORDER
of the State of Montana; ED ON RECONSIDERATION
ARGENBRIGHT, Superintendent of
Public Instruction of the State
of Montana; and MIKE GREELY,
Attorney General of the State
of Montana as the BOARD OF
STATE CANVASSERS of the State
of Montana; and the STATE OF
MONTANA,
Defendants & Respondents,
and
MONTANA LIABILITY COALITION,
Real Party in Interest.
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Attorney General Mike Greely has filed a petition for
rehearing following the issuance of our original opinion on
May 22, 1987. The real party in interest, Montana Liability
Coalition, has filed a petition for reconsideration, which we
regard as a petition for rehearing. Jim Waltermire,
Secretary of State, has filed a petition for clarification.
Such a petition is not provided for in our rules, but we will
regard it as a petition for rehearing. In any case, each
petition is by the Court DENIED.
The petition of the Attorney General contends that the
case of Durfee v. Harper (18991, 22 Mont. 354, 56 P. 585 was
overruled by the 1972 Constitutional Convention; that
publication of the "full text" of the proposed Initiative
Amendment of the Constitution is not required by the State
Constitution; that voiding the Initiative Amendment CI-30 is
too harsh; and that the Court should fashion a relief such as
requiring another election within 75 days under § 13-35-107,
MCA, or certifying the issue for submission to the electorate
at the next general election in 1988.
The petition of the real party in interest, Montana
Liability Coalition, contends that our decision overturns the
Initiative Amendment on a "slight procedural irregularity";
that our decision has the incidental effect of voiding all
amendments to the Constitution (by initiative or referendum)
since 1977; that the proceedings in the 1972 Constitutional
Convention express the intent that full text publication of
initiative amendments is not required; and that substantial
compliance with statutory directions for publication and
proposed initiative amendments is enough.
The Secretary of State's petition asks us to determine
whether we should mandate a new election on the Initiative
under § 13-35-107, MCA; and whether our decision now requires
that any future constitutional amendment, by referendum or by
initiative be printed in full on the ballot, as distinguished
from the voter information pamphlet.
The relators have filed a response, answering in one
instrument the contentions of each of the petitioners for
rehearing. In their response, Relators contend that none of
the petitions meet the requirements of Rule 34,
M.R.App.Civ.P.; that it is inarguable that the language of
the Initiative Amendment to Art. 11, § 16, 1972 Mont. Const.,
filed by the Secretary of State after the election is not the
same language submitted to the electors for their vote on
November 4, 1986; that this Court pointed out in its original
majority opinion that no other amendment to the Constitution
was affected by the decision herein; that the constitutional
provision requiring printing the full text of a proposed
initiative amendment in the media does not require publishing
the full text of the proposed amendment on the face of the
certified ballots; that the doctrine of strict compliance
expressed in Durfee continues to be the law in this state;
and that asking for a further election under S 13-27-501,
MCA, or certifying a ballot for the general election of 1988
is asking for an advisory opinion on issues never raised,
briefed or argued.
A petition for rehearing, to be sufficient, must, under
Rule 34, M.R.App.Civ.P., be presented upon the following
grounds and none other: that some fact material to the
decision or some question decisive of the case submitted to
counsel, was overlooked by this Court, or that the decision
is in conflict with an expressed statute or controlling
decision to which the attention of this Court was not
directed. On their faces, the petitions do not meet that
criteria. The majority opinion expressly sets out that it
adopts the doctrines espoused in Durfee and like cases
regarding constitutional amendments; that the true text of
the proposed initiative amendment should be found in the
Voter Information Pamphlet promulgated by the Secretary of
State before the election; that publication by the Secretary
of State of the full text of the proposed amendment is
required under Art. XIV, 9 of our Constitution; and that
publication of the Attorney General's summary of the
amendment ( $ 13-27-312, MCA) expressed in 100 words or less
did not in this instance meet the requirements for
publication in the media. Yet, out of a decent respect for
the concerns of the petitioners, which we take to be honestly
expressed, we will discuss those few issues not glaringly
found in the majority opinion itself.
Before we start, we assert one unassailable fact: Apart
from the several thousand persons who may have seen the full
text of the proposed amendment when they signed the
initiative petitions and those few dozens of people who were
intimately involved in these proceedings, the great majority
of voters never saw the full text of the amendment CI-30
which the Secretary of State eventually certified had been
adopted by their vote. What they did see in the Voter
Information Pamphlet, their only source of information, was a
text which completely reversed what the petitions for
initiative amendment proposed. There is far more here than a
slight "procedural irregularity" or a mere "cumbersome
detail." The text in the Voter Information Pamphlet was as
different from the text certified by the Secretary of State
as yes from no, white from black or good from bad.
We turn first to the contention that the 1972
Constitutional Convention "overruled" Durfee v. Harper,
- -- - ---
The statement relied on by the Coalition regarding
Durfee is found in the Constitutional Convention proceedings
regarding what is now Art. XIV, § 8, Amendment by Legislative
Referendum. The Convention's Committee on Constitutional
Revision had proposed two methods of amendment by the
legislature, one by referendum, and one by the legislature
itself. Eventually, the Convention eliminated amendment by
the legislature itself. In the discussion respecting
amendments by referenda, the Committee Report stated:
...
The first procedure. .
. is analogous to the
method of amending the Constitution in the present
Constitution's, Art. XIX, § 9. The proposed
section, however, does not go into the cumbersome
procedural detail contained in the present
Constitution. This cumbersome detail has been a
burden to often-popular Constitutional change. In
one instance the Supreme Court of Montana voided a
proposed constitutional amendment for the slight
procedural irregularity of failure to follow the
Constitutional directive in Art. XIX, Section 9 and
enter the proposed amendment in full in the
journals of both houses [Durfee v. Harper, 22 Mont.
354 (1899)l.
1972 Montana Constitutional Convention, Vol. 1, at 361, 362.
The same committee report also contained the original
proposal for amendment by initiative, the constitutional
section with which we are concerned in this case. When
speaking of the original proposal that 158 of the voters must
sign such a petition for initiative amendment, the report
said:
... the proposed article creates a new power for
the people of Montana, the right to initiate
Constitutional amendments. The committee feels
that this is an inherent right in a body politic
whose Constitution is to be the embodiment of the
will of the people. The committee's proposal sets
up the exact machinery for expressing this will
through establishment of the petition requirements
and the administration process. The 15 per cent
petition requirement and the geographical
requirement are high, but the committee feels that
it is not unreasonable to demand strict standards
when dealing with something as fundamental and
important as Constitutional change. Although the
standard is high, the committee does not feel it is
so high that pressing popular and needed
Constitutional reforms could not be initiated by
the people. The standard, the committee feels,
will operate to check erratic whimsy.
1972 Montana Constitutional Convention, Vol. 1, at 363.
The initiative amendment proposal eventually was
considered by the Convention sitting as a committee of the
whole. It was in Committee of the Whole that the discussion
occurred regarding whether the publication by the Secretary
of State of proposed amendments by initiative should be
solely in newspapers, or whether electronic media could be
used. No definitive agreement was reached by the Convention
on this question, but what is surprising is the report of the
Committee of the Whole which was adopted by the Convention in
the full committee report. Action of the Committee of the
Whole on the initiative proposal was reported and adopted by
the full Convention in this fashion:
... that Section 11 [the initiative proposal] be
amended by striking the following: "in such event
the secretary of state shall cause the amendment or
amendments to be published in full in at least one
newspaper in each county in which a newspaper is
published, twice each month for the two months
previous to the next general election for members
to the legislative assembly;" that Section 11 be
adopted as amended;. ..
1972 Montana Constitutional Convention, Vol. 111, at 534.
The whole article with respect to constitutional
revision was then referred by the convention to the Committee
on Style and Drafting. When the proposal for amendment by
initiative emerged from the Committee on Style and Drafting,
the provision for publication by the Secretary of State,
exactly as it now appears, had been reinserted. (1972
Montana Constitutional Convention, Vol. 11, at 852, Report
No. 2., February 26, 1972.) Thereafter the provisions sailed
through Committee of the Whole (Vol. IV, at 1194) and through
final vote (Vol. VI, at 1918-1919) in the same form.
The record of the Constitutional Convention proceedings
therefore supports our statement in the majority opinion that
"nowhere do the constitutional framers discuss publishing
less than the full amendment." Indeed, the minority agreed,
saying "that the official transcript of Montana's 1972
Constitutional Convention does not answer the question of
intent conclusively; there is no statement of the collective
view of the delegates." The foregoing recitation respecting
the proceedings in the Constitutional Convention is
burdensome but is made necessary by petitioner's contentions
that somehow the convention had "overruled" Durfee. The
Convention proceedings simply do not support that contention.
Next we turn to the contention of the relators that the
majority opinion, by requiring publication of the full text
of initiative proposals to amend the Constitution, have
incidentally voided all amendments to the Constitutions since
1977, including a) the drinking age of adults (1978); b)
optional local government review (1978); c) confidentality of
judicial documents in the Judicial Standards Commission
(1950); d) a poll of the legislators to overthrow a
gubernatorial veto (1982); e) discipline of judges for breach
of canons of judicial ethics (1984); f) congressional
redistricting (1984); and g) elimination of the study of the
Salary Commission (1986).
This contention has caught the fancy of some observers
and a few editorial writers who see all around us bogey-men
threatening the structure of state government.
A short answer to this contention would be that an
action to void an election must be commenced within 1 year of
the date of the election in question (5 13-35-107, MCA). A
short answer will not suffice for what needs to be explained
here.
In our majority opinion, we stated that we had examined
the history of other constitutional amendments that have
occurred since 1972 and that our decision in this case had no
effect on such constitutional amendments.
The provisions of S 13-27-311, MCA, which purport to
permit the Secretary of State to publish a "summary of the
amendment as provided by the Attorney General" in advance of
the election on an initiative amendment proposal came into
the statute by way of the amendment in 1979 (Ch. 571, Laws of
Montana (1979)). Before that time, 5 13-27-311 required that
the text of any proposed constitutional amendment, whether by
initiative or by referendum, be published by the Secretary of
State in at least one newspaper of general circulation in
each county, twice each month for two months previous to the
election. Therefore, if any constitutional amendment adopted
prior to the effective date of Ch. 571, Laws of Montana
(1979), had not been properly published, the defect would not
arise from the majority opinion but rather from the failure
of the Secretary of State to follow the law with respect to
those amendments.
Since 1979, the only amendment to the Constitution
proposed by means of an initiative which is affected by our
decision is the one before us in this case. Another
initiative proposal to amend the State Constitution also
failed to muster a majority vote in 1986.
Our decision has no effect on amendments to the
Constitution that may have been adopted through referendum
from the legislature since 1979. As we pointed out in the
majority opinion, there is no constitutional provision for
publication by the Secretary of State or any other officer
relating to amendments by legislative referendum. Art. XIV,
5 8, 1972 Mont. Const. The majority opinion here can have no
affect on such amendments. All of the amendments which the
relators say are threatened by our opinion were
legislatively-inspired and do not have their source in
initiative. There is, therefore, no substance to the
contention that we have incidentally voided other
constitutional amendments.
But, the Secretary of State and the relators contend,
our majority decision means not only that the full text of an
initiative ,proposal for constitutional amendment must be
published, but it also means that the full text of the
initiative proposal must be stated on the face of the
certified ballot given to each voter. Such a contention is
an extrapolation of logic stretched to the fullest extent.
Nowhere in the majority Opinion is there any indication that
printing the full text of an initiative proposal on the face
of the ballot is required nor was such a contention raised in
any pleading or brief before the Court until the petition for
rehearing. The majority Opinion has confined itself to the
provisions of Art. XIV, S 9, that "the secretary of state
shall cause the amendment to be published as provided by law,
twice each month for two months previous to the next regular
statewide election." By no means can consideration of that
language be stretched to determine what should be on the face
of the ballot. In point of fact, however, the majority
opinion has given tacit approval to publishing the full text
of the initiative proposal in the voter information pamphlet
instead of the ballot, provided - -the - - text is there
that - full
correctly stated.
Finally, we come to the contentions presented for the
first time to us in the petitions for rehearing, that we
should order a new election under 5 13-35-107, MCA, or as the
Attorney General suggests, certify the issue for the 1988
general election ballot.
There is a grave problem as to whether 5 13-35-107, MCA,
could apply to this type of case, especially where the
officials through whom the errors occurred seem reluctant to
1
admit any fault. In any event, 5 13-35-107 is discretionary
and the majority can see no equity in requiring the state to
incur the costs of a special statewide election within 75
days of our majority opinion. It is virtually certain that
it would be impossible in that time to provide for the
necessary publications in newspapers or other media and the
other election requirements that would have to be followed.
The suggestion defeats itself. As for certifying the issue
over for the 1988 ballot, we find no statutory authority for
that step and i t would stretch our inherent power to an
.
On October 29, 1986, an affidavit of the Bozeman
Chronicle revealed that the Secretary of State had
failed to cause any publication of the proposed
amendment, either of the Attorney General's summary or
the full text, in Gallatin County. That county had
28,357 voters of whom 18,582 voted. Votes for CI-30
were 9,735, against 8,046 in Gallatin County. This
disputable result was certified to the Secretary of
State by the county election officials. In spite of his
record of nonfeasance on CI-30, the Secretary of State
has persisted in the media in denouncing the decision of
the majority a-s the work of "liberals" and "political"
members of the court, and has accepted no responsibility
for the fiasco.
'UBINBU yaea ale uoyqe3-rryxe-Ia pue 'uorqexapysuoaa~
Iburxeayax xoj s u o ~ q y q a d ayq lsuoseax b u ~ o b a x o j ayq x o ~
-pasngax
axosalayq sy suorqsabbns asoyq 30 yap3 'quaqxa paquexxemun
Mr. Justice Fred J. Weber dissents from the opinion and order
on reconsideration.
The majority contends that an unassailable fact is that
the great majority of voters never saw the correct text of
the amendment CI-30 as finally certified. The error in the
voter information pamphlet was that the words "this full"
were printed - - instead of this-id&.
this full, I emphasize
that the pamphlet itself did not explain what is meant by
underlining as compared to interlineation. While I agree
that underlining commonly is used to designate material being
added and interlineation to designate material being deleted,
I suggest that the record does not demonstrate that this is
knowledge which can be presumed to be held by all of the
voters. The pamphlet itself contained the extensive printed
arguments by the opponents to the measure which clearly set
forth their opposition to the elimination of the words "this
full" from the constitutional provision. I question that
anyone who actually read the pamphlet would have been misled
as to the positions of the opponents and the supporters of
the amendment. The majority does not consider the publica-
tion by the Secretary of State which described the error in
the voter pamphlets and was contained in a news release
published throughout Montana. In addition, the majority does
not consider the wide discussion of the Initiative in the
printed media, the radio and the television, as well as the
debate which was reported in the media. I conclude that the
pamphlet gave the accurate information necessary for each
voter to conclude whether to vote for or against the amend-
ment. Nothing more was required. I conclude that there is
no real basis for the declaration of unconstitutionality
because of the pamphlet printing error.
The majority states that the record of the
Constitutional Convention supports its statement that "no-
where do the constitutional framers discuss publishing less
than the full amendment." It is true that the record of
discussions by the delegates does not answer the question of
this intention. However, I believe that the sections of the
Constitution speak for themselves. Following is the full
text of Art. XIV, § 8 and § 9:
Section 8. Amendment by legislative referendum.
Amendments to this constitution may be proposed by
any member of the legislature. If adopted by an
affirmative roll call vote of two-thirds of all the
members thereof, whether one or more bodies, - the
roposed amendment shall be submitted - - quali-
to the
;e
i d electors at the n e z general election. If
approved by a majority of the electors voting
thereon, the amendment shall become a part of this
constitution on the first day of July after certi-
fication of the election returns unless the amend-
ment provides otherwise.
Section 9. Amendment by initiative. (1) The
people may also propose constitutional amendments
by initiative. Petitions including - - -
the full text
of - proposed amendment shall be signed by at
- the
least ten percent of the qualified-electors of the
state. hat number shail include at least ten
percent of the qualified electors in each of
two-fifths of the legislative districts.
(2) The petitions shall be filed with the
secretary of state. If the petitions are found to
have been siqned by the required number of elec-
tors, the sec;etary-of state-shall cause - amend-
the
ment ---be published-as
-
.
to - provided 2 law twice each
months for two months previous to the next regular
state-wide election.
(3) At that election, the proposed amendment
shall be submitted - - qualified electors for
to the
approvalor rejection. If approved by a majority
voting thereon, it shall become a part of the
constitution effective the first day of July fol-
lowing its approval, unless the amendment provides
otherwise. (Emphasis supplied. )
The case held to be controlling by the majority, State
ex rel. Woods v. Tooker (1894), 15 Mont. 8, 37 P. 840, point-
ed out that the 1889 Constitution required publication
in full for three months, and publication in Tooker was made
for only two weeks. In view of that constitutional require-
ment it was reasonable for the Court to reach the decision it
did in Tooker. In contrast, 9 (2) provides that the secre-
tary of state shall cause the amendment to be published - as
provided 2 - It is significant that the present Consti-
law.
tution does not include the words "in full" which were
present in the 1889 Constitution and that in addition, the
constitutional provision now requires publication as provided
by law. Section 9(1) provides that the people may propose
constitutional amendments by initiative and then states that
petitions including - - - - - of the proposed amendment
the full text
shall be signed by the electors. This demonstrates the
ability of the delegates in the Constitutional Convention to
clearly describe when -- is to be used. Those words
full text
are omitted from both paragraphs (2) and (3) of S 9 as well
as from 5 8. It is not necessary to read any Constitutional
Convention proceedings to determine intent. The intent seems
quite clear from $ 9 (2) itself. There is no requirement for
publication "in full" in our present Constitution.
I conclude that the Montana Liability Coalition (Coali-
tion) has presented a strong argument with regard to the
effect of the majority opinion. In substance, the Coalition
questions whether the definition of "the amendment" as mean-
ing "the full text of the amendment" for § 9(2) of our Con-
stitution can also be applied to § 8. In § 8 the provision
for submitting to the electorate an amendment proposed by the
legislature itself is that "the proposed amendment" shall be
submitted to the electors. In a similar manner, 5 9(3)
provides that so far as submitting the initiative to vote is
concerned, "the proposed amendment" shall be submitted to the
electors. In analyzing S 9 (2) of the Constitution, the
majority concludes that the words "the amendment" mean that
the full text of the amendment must be published. The major-
ity fails to explain why the full text should be published
while adjacent paragraphs should be construed to require only
a summary. The Coalition argues that the same logic as used
by the majority can be applied to S 8, raising a question as
to referendums because in no instance was the proposed amend-
ment submitted in full to the electors. Instead only a
summary was used on the ballot. Similarly, under S 9(3), the
proposed amendments were not submitted in full to the quali-
fied electors but were submitted in summary form only. I
conclude that the Coalition has raised a significant question
which follows from the majority interpretation of our Consti-
tution. The purpose of publication and printing on the
ballot is to provide adequate information to Montana voters.
That purpose is not fulfilled by the fact that members of the
legislature have considered the matter. I conclude that it
can be argued that the conclusion of the majority could be
applied to both S 8 and S 9(3) of the Constitution, requiring
invalidation of referendum and initiative measures where the
proposed amendment was not set forth in full in the ballot.
The majority has stated that 5 13-35-107, MCA, sets
forth a one-year statute of limitations on actions to void an
election ballot. I am not certain that the provision could
be applied to a constitutional challenge.
For the foregoing reasons I would grant the petitions
for rehearing and reconsideration.