IN THE SUPREMECOURT OF THE STATE OF MONTANA
STATE OF MONTANAEX REL., R. BUD
GOULD, H. W. "SWEDE" HAMMOND,
JERRY NOBLE, JOHN E. PHILLIPS,
and BOB THOFT,
Petitioners and Relators,
v. OPINION
MIKE COONEY, Secretary of State of and
the State of Montana; KIM HARRIS,
Election Administrator and Clerk ORDER
and Recorder of Lewis and Clark
County, Montana, individually and
as representative of the class of
all election administrators and clerk
and recorders of the State of Montana,
and THE STATE OF MONTANA,
Respondents.
This is an application and petition for writ of injunction and
declaratory judgment. Petitioners and relators are members of the
Montana legislature and residents, registered voters, and taxpayers
of Montana. They ask this Court for an injunction preventing
defendants and respondents from allowing a referendum measure
identified as House Bill 19 from appearing on the June 1992
election ballot. This is the proposition otherwise known as the
"Treasure State Endowment." Petitioners and relators also ask for
a declaratory judgment that House Bill 19 is an unconstitutional
attempt by the legislature to refer to the people of Montana a
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"bill" which has not been subject to the veto power of the Governor
of Montana.
Responses to the application and petition have been filed by
Kim Harris, Lewis and Clark County Treasurer/Clerk and Recorder,
and by Mike Cooney, Secretary of State. Cooney, supported by
Harris, moves to dismiss the action for failure to properly join
and serve all necessary parties, failure to bring the action in a
timely fashion, failure to present a case for which the Supreme
Court should assume original jurisdiction, and failure to state a
claim for which relief can be granted.
In filing this action, petitioners and relators named the
Secretary of State and all of the election administrators through-
out the state as respondents. However, instead of serving all of
the county election administrators, they simply named Rim Harris as
the representative of the class of election administrators
throughout the state. Respondents argue that this case does not
meet the Rule 23(a), M.R.Civ.P., requirement for a class action
that the members of the class are so numerous that joinder of all
members is impracticable.
Because we conclude, as described more fully below, that it is
necessary for this Court to assume original jurisdiction in this
matter and that the petition for an injunction should be denied, we
shall proceed to the merits of this matter. We make no ruling as
to the method of service of process used in this case.
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In order to assume original jurisdiction, this Court has
stated that three elements must be met. These are 1) that
constitutional issues of major statewide importance are involved;
2) that the case involves pure legal questions of statutory and
constitutional construction; and 3) that urgency and emergency
factors exist making the normal appeal process inadequate. State
ex rel. Greely v. Water Court of State (1984), 214 Mont. 143, 691
P.2d 833; Butte-Silver Bow Local Government v. State (1989), 235
Mont. 398, 768 P.2d 327.
The ultimate issues in this case are constitutional issues of
major statewide importance which can be resolved on a purely legal
basis of statutory and constitutional construction. Delaying a
final ruling on the application and petition would leave unanswered
the question of whether the referendum measure identified as House
Bill 19 will appear on the rapidly approaching June 2 primary
ballot in Montana. Therefore, and in the interests of judicial
economy, we accept original jurisdiction in this matter.
Petitioners and relators assert that Article VI, Section 10,
of the Montana Constitution requires the governor to sign legisla-
tion authorizing the submission of a legislative referendum to the
vote of the people. They suggest that the term "referendum" as
used in Article VI, Section 10, does not include a legislative
referendum.
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In resolving disputes of constitutional construction, this
Court applies the rules of statutory construction. Under these
rules, the intent of the framers of the Constitution is controlling
and must first be determined from the plain language of the words
used. Butte-Silver Bow, 768 P.2d at 330.
Article VI, Section 10, of the Montana Constitution provides:
Veto power. (1) Each bill passed by the legislature,
except bills proposing amendments to the Montana consti-
tution, bills ratifying proposed amendments to the United
States constitution, resolutions, and initiative and
referendum measures shall be submitted to the governor
for his signature. [Emphasis added.]
Article III, Section 5, of the Montana Constitution provides that:
[a] referendum shall be held either upon order bv the
lesislature or upon petition signed by at least five
percent of the qualified electors in each of at least
one-third of the legislative representative districts.
[Emphasis added.]
We conclude that "referendum measures" as used in the Montana
Constitution means both legislative referendum and initiative
referendum. The plain language of these sections of the Montana
Constitution makes it clear that legislation calling for a
referendum measure is not required to be signed by the governor.
Petitioners and relators also claim that the referendum
measure identified as House Bill 19 is an appropriations measure
and, therefore, under Article III, Section 5, of the Montana
Constitution, cannot be submitted to the people as a ballot issue.
However, as described in the Attorney General's ballot statement
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fiscal note, the "measure redirects coal severance tax from the
permanent trust to a treasure state endowment trust." On its face,
this measure is not an appropriation of money.
Section 13-27-310(2), MCA, provides that:
The secretary of state shall transmit a copy of an act
referred to the people or a constitutional amendment
proposed by the legislature and a copy of the form in
which the issue will appear on the ballotto the attorney
general no later than 6 months before the election at
which the issue will be voted on by the people.
Petitioners and relators argue that, because House Bill 19 was
passed by the legislature less than six months before the special
election at which the legislature ordered it be placed on the
ballot, and was therefore necessarily submitted to the Attorney
General less than six months before the election, the measure must
be removed from the ballot as violative of § 13-27-310(2), MCA.
However, 5 l-2-102, MCA, provides that:
[i]n the construction of a statute, the intention of the
legislature is to be pursued if possible. When a general
and particular provision are inconsistent, the latter is
paramount to the former, so a particular intent will
control a general one that is inconsistent with it.
House Bill 19 specifically directs the Secretary of State to
place this referendum on a special election ballot held at the same
time as the June 1992 primary election. As discussed above, the
legislature possesses authority to do so, under Article III,
Section 5, of the Montana Constitution. Petitioners and relators
have not alleged that any procedural steps have been disregarded as
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a result of the shortened time between submission of this measure
to the Attorney General and the June 1992 election. Further, the
time element did not prevent petitioners and relators from delaying
their application to this Court for nearly three months after House
Bill 19 was delivered to the Secretary of State. We conclude that
the statement of particular intent in House Bill 19 that this
measure appear on the June 1992 ballot controls over the statement
of general intent set forth at § 13-27-310(Z), MCA.
IT IS ORDERED that the application for an injunction is
DENIED.
DATED this day of May, 1992.
Chief Just#'e
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Justice Karla M. Gray specially concurring:
I concur in the practical effect of the majority order and
opinion. Under these circumstances, I would have dismissed the
application and petition as untimely.
I
AA
Justldes
Justice William E. Hunt, Sr., did not participate.
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