No. 88-444
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
GEORGE HARPER, SUE FIFIELD, HUGH STANDLEY, JO LINDBERG,
MARCIA SCHREDER, FRANCIS MARONCELLI, CONSTITUTIONAL
DEFENSE CAMPAIGN AGAINST C-18, MONTANA LOW-INCOME
COAJ,ITION, et al,
Plaintiffs and Appellants,
MIKE GREELY, ATTORNEY GENERAL, STATE OF MONTANA,
Defendant and Cross-Appellant,
and
VERN BERTELSEN, SECRETARY OF STATE, STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Gordon R. Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven Bunch and Michael Sinclair, Mt. Legal Services,
Helena, Montana
James Goetz, Bozeman, Montana
Robert Wood, Helena, Montana
Andree LaRose, Montana Advocacy Program, Helena, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts and Kimberly Kradolfer, Assistant
Attorneys General, Helena
For Amicus Curiae:
Gregory J. Petesch and Valencia Lane, Legislative
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Council, Helena, Montana
3
12= Dennis Lopach, Montana Legal Defense Fund, Helena,
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Submitted on Briefs: September 9, 1388
- . -> Decided: October 12, 1988
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The appellants brought this action in the District
Court, Lewis and Clark County, requesting that House Bill 637
(Ch. 343, 1987 Mont. Laws) be declared unconstitutional,
unlawful, void and to enjoin the Secretary of State from
placing the constitutional amendment proposed by the Bill on
the November, 1988 ballot. The appellants further requested
that the Secretary of State be enjoined from publishing the
proposed amendment to the voter information pamphlet to be
mailed to the Montana voters before the election.
Specifically, the appellants contest the sufficiency of
the statement of purpose (title of HB 637) and the statements
of implication to the "for" and "against" statements found in
HR 637.
It is agreed that there are no factual issues in
dispute and the matter is to be treated as a request for a
declaratory judgment. The District Court dismissed the
appellants' complaint on the grounds that there is no trace
of authority for pre-election nullification of legislative
referendum and absolutely no express authority for that court
to review a legislatively proposed statement of implication.
This appeal is then from that order dismissing the complaint.
We agree with the District Court and its finding that there
is no statutory authority for judicial pre-election
nullification of a legislative referendum in this case.
The appellants and the Attorney General stipulated, and
this Court ordered on August 22, 1988, that the record on
appeal shall be the current District Court file supplemented
by the Attorney General's revised explanatory statement and
any information from the Secretary of State pertaining to
county requests for abbreviated ballots, ballot printing
deadlines or other information related to preparation of the
ballots.
Among the numerous parties involved in this case, those
submitting briefs include the Montana Legal Services
Association, Montana Advocacy Program, the Attorney General
of the State of Montana, the Montana Legislative Council and
the Montana Legal Defense Fund.
Over the fifteen years since adoption of Montana's 1972
Constitution, no provision in that Constitution has received
more attention than Article XII, which relates to the
economic assistance and social rehabilitative services to
those in need. A number of case are indicative of the
interest and the problems that have arisen because of this
provision. Those cases include: Butte Community Union v.
Lewis (Mont. 1987), 745 P.2d 1128, 44 St.Rep. 1911; State ex
rel. Boese v. Waltermire (Mont. 1986), 730 P.2d 375, 43
St.Rep. 2156; State ex rel. Harper v. Waltermire (Mont.
1984), 691 P.2d 826, 41 St.Rep. 2212; State ex rel. Mont.
Citizens for the Preservation of Citizens' Rights v.
Waltermire (Mont. 1987), 729 P.2d 1283, 43 St.Rep. 2192;
State ex rel. Mont. Citizens for the preservation of
Citizens' Rights v. Flaltermire (Mont. 1987), 738 P.2d 1255,
44 St.Rep. 913; and State ex rel. Montanans for the
Preservation of Citizens' Rights v. Waltermire (Mont. 1988),
757 P.2d 746, 45 St.Rep. 719.
This philosophy of caring for the needy is not new to
Montana, Art. X, sec. 5 of our original Constitution of 1889,
State Institutions and Public Buildings, was directed to this
very problem. Art. X, sec. 5 Mont. Const (1889) read:
The several counties of the state shall
provide as may be prescribed by law for
those inhabitants, who, by reason of age,
infirmity or misfortune, may have claims
upon the sympathy and aid of society.
That section and the numerous cases interpreting it served
this state for over eighty years through depressed times,
including the Great Depression of the 1930s. It was not
until Montana's 1972 Constitutional Convention met that a new
philosophy of caring for those in need evolved in this state.
The new article, Art. XII, sec. 3, again is directed at
institutions and assistance. Section 3 ( 3 ) states the
philosophy of the 1972 Constitution:
(3) The legislature shall provide such
economic assistance and social and reha-
bilitative services as may be necessary
for those inhabitants who, by reasons of
age, infirmities, or misfortune may have
need for the aid of society.
From this subsection comes the understandings and misun-
derstandings of the people of this state as to whether this
section guarantees a constitutional right to public
assistance for the citizens of this state. In Butte Commu-
nity Union v. Lewis (Mont. 1986), 712 P.2d 1309, 1312, 43
St.Rep. 65, 68, Mr. Justice Morrison writing for the majority
noted:
There is no constitutional right to
welfare within the Montana Constitution's
Declaration of Rights. Further, the
right to welfare is not a right upon
which constitutionally guaranteed rights
depend. In fact, welfare is more proper-
ly characterized as a benefit. Since
welfare is not a fundamental right,
strict scrutiny does not apply and the
State need show something less than a
compelling state interest in order to
limit that right.
It should be noted that in this opinion Mr. Justice
Sheehy, while specially concurring, stated:
I do not wish to be bound by the state-
ment in the majority opinion that funda-
mental rights under the Montana
Constitution must be found within the
Declaration of Rights, Art. 11. The
Article holds itself open to unenumerated
rights which may not be denied to the
people.
Butte Community Union, 712 P.2d at 1314, 43 St.Rep. at 72.
In a later case, Butte Community Union v. Lewis (Mont.
1987), 745 P.2d 1128, 44 St.Rep. 1911, authored by Mr.
Justice Sheehy, we affirmed the district court's finding
unconstitutional a law passed by the Legislature, noting:
The legislature, in determining where
sacrifices, are necessary, should regard
"welfare benefits grounded in the consti-
tution itself are deserving of great
protection." Butte community union v.
Lewis, 712 P.2d at 1314. The State mav
legitimately limit its expenditures fo;
public assistance, public education or
any other program even-handedly applied.
It may not limit its expenditures by the
expedient of eliminating classes of
eligible individuals from public
assistance without regard to their
constitutionally grounded right to
society's aid when needed, through
misfortune, for the basic necessities of
life. We do not hereby declare that
inhabitants have a constitutional right
to public assistance. We do declare that
the legislature, in performing its duty
under Art. XII, S 3(3), must not act
arbitrarily between classes of entitled
persons.
Butte Community Union, 745 P.2d at 1133.
It is clear from this background it was the inability
of the Legislature to write an act which would pass
constitutional muster which led to its attempts to control
the expenditures and the operations of the welfare programs.
In 1987, the 50th Legislature of the State of Montana
adopted a proposed amendment to the Constitution, House Bill
637 (Ch. 343, 1987 Mont. Laws). This legislation refers to
the voters of Montana a proposed amendment to Art. XII, sec.
3, Mont. Const. This House Bill was enacted under the
provisions of Art. XIV, sec. 8, Mont. Const., which provides
that a proposed constitutional amendment may be proposed by
any member of the Legislature and that if it is adopted by an
affirmative roll call vote of two-thirds of all members
thereof, whether one or both bodies, the proposed amendment
"shall be submitted to the qualified electors at the next
general election." This bill passed by a vote of 70 to 30 in
the House and 33 to 17 in the Senate, thereby exceeding the
supermajority requirement by three votes. Thereafter, House
Bill 637 was designated Constitutional Referendum No. 18
[C-181 by the Secretary of State's Office, and is scheduled
to be placed on the general election ballot for presentation
to the Montana voters on November 8, 1988. As previously
noted, we are asked to remove this referendum.
The appellants present the issue regarding the ballot
title and statements of implication (the "for" and "against"
statements) which will appear on the ballot, alleging they
are untrue, misleading and unconstitutional. Section
13-27-501(3), MCA, provides that the ballot title for the
legislative referendum proposing to amend the Constitution is
to be the title of the legislative proposal itself. The
title which will appear on the ballot reads as follows:
AN ACT TO SUBMIT TO THE QUALIFIED
ELECTORS OF MONTANA AN AMENDMENT TO
ARTICLE XII, SECTION 3, OF THE MONTANA
CONSTITUTION TO ALLOW THE LEGISLATURE
GREATER DISCRETION IN PROVIDING ECONOMIC
ASSISTANCE AND SOCIAL AND REHABILITATIVE
SERVICES TO THOSE IN MEED; AND PROVIDING
AN EFFECTIVE DATE.
The statements of implication from HE3 637, reads as follows:
/I FOR all-owing the legislature
greater discretion to determine the
eligibility, duration, and level of
economic assistance and social
services to those in need.
/7 AGAINST allowing the legislature
greater discretion to determine the
eligibility, duration, and level of
economic assistance and social
services to those in need.
It is important to note that this proposed amendment to
the Constitution followed the provisions of Art. XIV, sec 8.
Section 8 provides:
Amendment by legislative referendum.
Amendments to this constitution may be
proposed by any member of the legisla-
ture. If adopted by an affirmative roll
call vote of two-thirds of all the
members thereof, whether one or more
bodies, the proposed amendment shall be
submitted to the qualified electors at
the next 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 certification of the
election returns unless the amendment
provides otherwise.
Section 9 provides for amendment by initiative:
(1) The people may also propose
constitutional amendments by initiative.
Petitions including the full text of the
proposed amendment shall be signed by at
least ten percent of the qualified
electors of the state. That number shall
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 signed by the required
number of electors, 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 state-wide election. (3) At that
election, the proposed amendment shall be
submitted to the qualified electors for
approval or rejection. If approved by
the majority voting thereon, it shall
become a part of the constitution
effective the first day of July following
its approval, unless the amendment pro-
vides otherwise.
The principal issue in this litigation concerns the
ballot title and the statements of implication ("for" and
"against") which appear on the ballot. Section 13-27-501(3),
MCA, provides that the ballot title for the initiative
referendum proposing to amend the Constitution is the title
of the legislation itself. The title herein to be voted upon
is the same title as the legislative act, exactly as used in
HB 637 when introduced into the legislative process. We note
throughout the legislative history of this Bill there were
committee hearings, debates, and discussions concerning the
merits of the proposed constitutional change, and there were
no amendments, or even proposed amendments to the title. It
emerged from the legislative process in exactly the same
fashion it was entered. The words of the statement of
implication were provided for in that legislation and have
previously been noted. Throughout the committee hearings,
debates and discussions in the legislative process concerning
the merits of the constitutional change, neither the
plaintiffs' testimony at the hearings nor any member of the
Legislature offered any amendments concerning the title or
ballot language throughout the legislative history of HR 63?.
The appellants strenuously argue that the statutory
standard which applies to both the initiative and referendum
begun by petition, should equally apply to constitutional
referenda originating from the Legislature. They argue that
S 13-27-312(4), MCA, controls. That section states:
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 as to create
prejudice for or against the measure.
We are called upon to answer the question of what
standard is to be applied to this legislative referendum.
Because we find that the legislative referendum is a product
of the Legislature and is passed in the form of a bill, its
title should be examined according to the same standard
applied to other legislation. If it results in greater
deference being given to the ballot language which derives
from the legislation rather than the petition, then that is
appropriate due to the differences between the two sources.
This distinction has been noted by this Court in State ex
rel. Montana Citizens for the Preservation of Citizens'
Rights v. Waltermire (Mont. 1987), 738 P. 2d 1255, 1263, 44
St.Rep. 913, 923-924, where Mr. Justice Sheehy, writing for
the majority, noted:
There is evident wisdom in what the
constitutional framers provided with
respect to publication where initiatives
are concerned. In the other two cases,
that of convention and of legislative
referenda, the proposed amendments are
carefully worked over by contending
parties whose governmental business at
the time is to construct either a
constitution or propose amendments to it.
In the case of an initiative by the
people, not enough adverse input occurs
to justify the conclusion that a careful
study has been made of the proposed
amendement prior to its submission.
Article V, sec. ll(3) of the Montana Constitution
states in pertinent part: "Each bill... shall contain only
one subject, clearly expressed in its title." In State ex
rel. Wenzel v. Murray (1978), 178 Mont. 441, 585 P.2d 633,
the opponents to a ballot initiative argued that the ballot
title and statements of implication were unfair. They urged
this Court to require that the language of the title and
statements of implication clearly express the subject of the
proposal. In determining what the title should reflect, this
Court held it would not look beyond the terms of the
initiative itself: "We therefore examine the title of the
Initiative based upon the provisions of the Initiative it-
self." Wenzel, 585 P.2d at 637. This Court further stated
that we would use the rules of construction delineated in two
previous Montana cases to determine whether ballot language
would meet the constitutional standard provided for in Art.
V, sec. 11 Mont. Const.
One of the cases relied on in Wenzel is State v.
McKinney (1904), 29 Mont. 375, 74 P. 1095, which set forth
five principles for the construction of the titles by Montana
courts:
First. The purposes of this constitu-
tional provision are to prevent the
legislature from the enactment of laws
surreptitiously; to prevent "logrolling"
legislation; to give to the people
general notice of the character of pro-
posed legislation, so they may not be
misled; to give all interested an oppor-
tunity to appear before committees of the
legislature and be heard upon the advis-
ability of the proposed legislation; to
advise members of the legislature of the
character of the proposed legislation,
and give each an opportunity to intelli-
gently watch the course of the proposed
Bill; to guard against fraud in legisla-
tion, and against false and deceptive
titles. These purposes have been so
plainly announced by this court in numer-
ous opinions that a statement of the rule
and a citation of cases would seem
sufficient. (Citations omitted.)
Second. While all the provisions of the
constitution are "mandatory and prohibi-
tory" (Art. 111, Sec. 29), yet the
courts, bearing in mind that the legisla-
ture is a co-ordinate [sic] branch of the
government and that its action, if fair,
should be sustained, have given this
section of the constitution a liberal
construction, so as to not interfere with
or impede proper legislative functions.
(Citations omitted.)
Third. The legislature is the judge, to
a great extent, at least, of the title
which it will prefix to a Bill; and the
court has no right to hold a title void
because, in its opinion, a better one
might have been used. (Citations
omitted. )
Fourth. The title is generally suffi-
cient if the body of the Act treats only,
directly or indirectly, of the subjects
mentioned in the title, and of other
subjects germane thereto, or of matters
in furtherance of or necessary to accom-
plish the general objects of the Bill, as
mentioned in the title. Details need not
be mentioned. The title need not contain
a complete list of all matters covered by
the Act. (Citations omitted.)
Fifth. If the court, after an applica-
tion of all these principles, is still in
doubt as to the constitutionality of the
Bill, it should sustain the Act.
(Citations omitted.)
McKinney, 29 Mont. at 380-382, 74 P. at 1096. Numerous cases
have clearly followed the rationale of Wenzel.
In applying the constitutional requirement of "clearly
expressing the subject" in the title, and employing the rules
of construction developed under case law, the ballot title in
question here is legally sufficient. With the background of
the legislative hearings and a vote by two-thirds of the
members of the Legislature, we conclude that they understood
the issue and voted accordingly. Specific reference is made
in the title to Art. XII, sec. 3, Mont. Const., and that the
subject matter involves the provision of economic assistance
and social and rehabilitative services to those in need. The
explanation of the effect of the proposal is left to the
Attorney General's explanatory statement which is given each
voter the time of the election.
Two years ago, on three separate occasions, we refused
to intervene in the initiative process prior to submission of
the initiatives to the voters of Montana. Recognizing that
these cases involved the initiative rather than the
referendum process, they are yet applicable to the present
case and should be considered.
Art. 11, sec. 1 and 2, Mont. Const. (1972), read:
Section 1. Popular sovereignty. All
political power is vested in and derived
from the people. All government of
right originates with the people, is
founded upon their will only, and is
instituted solely for the good of the
whole.
Section 2. Self-government. The people
have the exclusive right of governing
themselves as a free, sovereign, and
independent state. They may alter or
abolish the constitution and form of
government whenever they deem it
necessary.
The initiative and referendum process enable the people to
peacefully accomplish the goals of these two sections of our
constitution by allowing important issues to be placed before
the people for a popular vote. To deny the right to vote
would thwart these provisions.
As we have noted, there are important distinctions
between the constitutional amendments proposed through the
initiative process (by the people) and constitutional amend-
ments proposed through the referendum process (by the
legislature). Our reasoning in refusing to intervene in the
initiative process prior to the vote of the people is
applicable in this case. In fact, such reasoning has greater
weight in relation to the referendum because of the
safeguards already built into the referendum process. While
the appellants cite precedent in which this Court granted
pre-election review and enjoined an election, we distinguish
these cases. In State ex rel. Steen v. Murray (19641, 144
Mont. 61, 394 P.2d 761, the challenged initiative was
unconstitutional on its face. In State ex rel. Harper v.
F'laltermire (Mont. 1984), 691 P.2d 826, 41 St.Rep. 2212, the
challenge to the initiative went to the text of the
initiative rather than to its title.
In State ex rel. Boese v. Waltermire (~ont.1986), 730
P.2d 375, 43 St.Rep. 2156, this Court was asked to declare
the Milk Decontrol Initiative, 1-104, void and invalid and to
enjoin the Secretary of State from allowing it to appear on
the November ballot. The petitioner challenged the
initiative on the grounds that the title was defective in
several ways. We refused to exercise jurisdiction to grant
pre-election judicial review because we found the petitioner
had failed to comply with the statutory procedures for
challenging the titles of initiatives. As this Court stated
in Boese, 730 P.2d at 378, 43 St.Rep. at 2160:
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 conducted. We
hold that the petitioner has failed to
demonstrate any reason to allow him to
sidestep the procedural requirements of
§ 13-27-316 (2), MCA.
Here, the appellants have not alleged that HB 637 is
unconstitutional on its face. Appellants have not challenged
the text of the referendum, only the title. As in Boese, we
decline to intervene in a referendum process prior to a vote
by the people on this constitutionally passed legislative
referendum.
We held in State ex rel. Montana Citizens for the
preservation of Citizens ' Rights v. Waltermire (Mont. 1986) ,
729 P.2d 1283, 1285, that:
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 consti-
tutions. In Montana this right of con-
stitutional 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 [(Mont. 1986), 729 P.2d 1297,
43 St.Rep. 21981, we should decline to
interfere with this right of constitu-
tional change by initiative unless it
appears to be absolutely essential.
The District Court recognized both the inability and
the inappropriateness of the removal of this legislative
referendum from the ballot and said in its opinion and order:
The next question is as to the remedy.
Two remedial actions would seem to be
available: nullification, as prayed for
by the plaintiffs, or judicial amendment,
a fallback position of defendants. A
combination of proper judicial restraint
and deference to the legislature would
commend neither. More importantly, there
is a dearth of stat_utor:r authority for
either action.
There is not a trace of statutory
authority for pre-election nullification
of a legislative referendum. The reason
is obvious. A referendum is not a single
act, it is a process. That process is
not complete until the electorate has
spoken...
We further note that there is a strong presumption in
favor of the constitutionality of legislative enactments.
T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 641 P.2d
1368, where we noted the party attacking a legislative enact-
ment has a heavy burden of proving a violation of fundamental
law. If a doubt exists, it is to be resolved in favor of the
legislation. Reeves v. Ille Elec. Co. (1976), 170 Mont. 104,
551 P.2d 647; In re estate of Kujath (1976), 169 Mont. 128,
545 P.2d 662; Bd. of Regents v. Judge (1975), 168 Mont. 433,
543 P.2d 1323.
In conclusion, we find that the ballot language and the
abbreviated form complained of by the appellants is not
legally deficient. While the language may not be the best
conceivable statement, it does not appear purposely
misleading, and does identify the measure on the ballot so
that a Montana voter, drawing on both official and unofficial
sources of information and education, will exercise his or
her political judgment.
The District Court's order that appellants' complaint
be dismissed is affirmed.
h
We concur:
Justices
Mr. Justice John C. Sheehy, dissenting:
I dissent and would take jurisdiction to remove this
shabby referendum from the ballot.
I begin by agreeing with the District Court judge that
this referendum is flagrantly deceitful. Its true intent, to
deprive this Court of our constitutional basis for rebuffing
the legislature's discriminatory acts, is trickily masked in
self-effacing language : ". . . to allow the legislature
greater discretion in providing economic assistance and
social and rehabilitative services to those is need."
(Emphasis added.) The legislature does not intend to
"provide;" it intends to "eliminate."
Greater discretion? The legislature now has absolute
discretion to determine the eligibility, duration and levels
of aid to the needy. The only limitation upon its discretion
is its constitutional duty to avoid invidious discrimination
between members of the same needy classes. Butte Community
Union v. Lewis (Mont. 1987), 745 P.2d 1128, 44 St.Rep 1911.
The legislature, unwilling to assume the burden of acting
constitutionally, wants the voters to remove the
constitution.
Under the present constitution, the aged, the infirm,
the unlucky, who without fault need the aid of society, must
be given economic assistance by the legislature. Art. XII, S
3 (3), 1972 Mont. Const. The legislature wants to get rid of
that "must" but it does not want to tell the voters directly.
Instead, the legislature proposes a referendum with its true
intent couched in vague and illusory wording.
For the purposes of history, I set out here the form of
the constitutional amendment as it will be submitted to the
electors. The Attorney General's Explanatory Statement will
not appear on at least 67 percent of the state ballots. The
county clerks of enough counties have requested permission to
omit the Attorney General's Explanatory Statement because of
lack of space on the ballot or machines. The constitutional
amendment, therefore, will be presented to a great majority
of the voters as follows:
CONSTITUTIONAL AMENDMENT NO. 18
AN AMENDMENT TO THE CONSTITUTION PROPOSED BY THE LEGISLATURE
AN ACT TO SUBMIT TO THE QUALIFIED ELECTORS OF
MONTANA AN AMENDMENT TO ARTICLE XI1 , SECTION 3 , OF
THE MONTANA CONSTITUTION TO ALLOW THE LEGISLATURE
GREATER DISCRETION IN PRCVIDING ECONOMIC ASSISTANCE
AND SOCIAL AND REHABILITATION SERVICES TO THOSE IN
NEED; AND PROVIDING AN EFFECTIVE DATE.
[ I FOR allowing the legislature greater
discretion to determine the eligibility,
duration, and level of economic assistance and
social services to those in need.
[ 1
- AGAINST allowing the legislature greater
discretion to determine the eligibility,
duration, and level of economic assistance and
social services to those in need.
Where in the ballot are the aged informed that their
present group right to state aid, if needy, is stripped away
by the ballot issue, and their lot cast to the whim of the
legislators? They are not informed.
Where in the ballot are the sick, the crippled, the
infirm told that their present group right to state aid, if
needy, will he gone with the wind? They are not told.
Where in the ballot does it state that a Montanan's
present group right to state aid in case of faultless poverty
will be lost? It is not stated.
In the face of such deceit, this Court should condemn
the referendum, and take it off the ballot for at least these
reasons:
(1) By hiding its true purpose, the referendum prevents
the free exercise by Montana voters of their right of
suffrage. (Art. 11, S 13, 1972 Mont. Const.)
(2) By hiding its true purpose, the referendum prevents
the public right of opportunity to participate in the
operation of state agencies. (Art. 11, 8, 1972 Mont.
Const. )
(3) By hiding its true purpose, the referendum deprives
the public of its right to examine public documents. (Art..
11, S 9, 1972 Mont. Const.)
(4) By hiding its true purpose, the referendum deprives
the public of its right to pursue life's basic necessities.
(Art. 11, S 3, 1972 Font. Const.)
(5) By hiding its true purpose, the referendum deprives
the needy aged, infirm and misfortunate persons of due
process of law. (Art. 11, § 17, 1972 Mont. Const.)
Because of the foregoing failings, the voters will not
be given an opportunity to exercise their franchise in a
knowing, conscientious manner. In Burgan and Walker v. State
Highway Commission (1943), 114 Mont. 459, 137 P.2d 663, this
Court enjoined a referendum before the election because of
its evident constitutional deficiencies. That situation
exists here. Our judicial duty is to enjoin or prevent the
submission of this mendacity to t h e ~ e o p l e .
Mr. Justice William E. Hunt, Sr., $&ins in the foregoing dissent
of Mr. Justice Sheehy.
Justice