No. 96-327
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph P. Mazurek, Attorney General, Kimberly A.
Kradolfer, Assistant Attorney General, Helena,
Montana; Garth Jacobson, Office of the Secretary of
State, Helena, Montana
For Respondent:
John Cobb, Augusta, Montana
Submitted on Briefs: July 18, 1996
Decided: September 26, 1996
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant State of Montana (State) appeals the decision of the
First Judicial District Court, Lewis and Clark County, enjoining
the secretary of state from presenting to the electors an official
ballot containing the legislative referendum known as Senate Bill
37, which sought to amend the Montana Constitution to eliminate the
office of secretary of state. On July 18, 1996, this Court issued
an order affirming the judgment of the District Court, a copy of
which is appended. This opinion explains the reasons for that
order.
The 1995 session of the Montana Legislature passed Senate Bill
37 as a referendum to be presented to the electorate during the
November 1996 general election. The referendum sought to amend the
Montana Constitution to eliminate the office of secretary of state.
In its final form, the measure provided that all but three of the
duties of the office of secretary of state were to be transferred
to the Lieutenant Governor.. Two of the remaining duties would be
transferred to other officials, due to legislative concern that
assigning them to the Lieutenant Governor would concentrate too
much power in the Governor's office.
However, one of the duties which is constitutionally assigned
to the secretary of state was overlooked. Article IV, Section 7(3)
of the Montana Constitution provides:
If [an] election on an initiative or referendum properly
qualifying for the ballot is declared invalid because the
election was improperly conducted, the secretary of state
shall submit the issue to the qualified electors at the
2
next regularly scheduled statewide election unless the
legislature orders a special election.
Senate Bill 37 did not provide for the deletion of this section
from the constitution, nor did it provide for the transfer of this
particular duty to another office.
Following the passage of Senate Bill 37 by the legislature,
Representative John Cobb filed suit to prevent the secretary of
state from submitting the referendum to the electorate.
Representative Cobb alleged that the injunction should be granted
because the bill's title and statements of implication were unclear
and misleading, and because the bill violated the one bill-one
subject rule.
The District Court concluded that the formal title of the bill
was not unclear or misleading. It further concluded that the bill
did not violate the one bill-one subject rule. However, the
District Court concluded that the statements of implication were
misleading because they did not inform the voters that one duty of
the secretary of state was not transferred anywhere, or that one
reference to the secretary of state remained in the constitution.
In addition, the District Court determined that the referendum was
faulty because its passage would leave a defect in the constitution
which could not be remedied except by another election.
The State appeals this decision, and Representative Cobb
cross-appeals the District Court's determination that Senate Bill
37 is not constitutionally flawed in other respects. Because we
affirm the District Court's determination that the bill is fatally
flawed for the reason given, we need not consider whether it
3
contains other errors as well. We therefore will not consider the
issues raised in the cross-appeal.
Section 3-5-302(6) (a), MCA, provides:
[Al contest of a ballot issue submitted by initiative or
referendum may be brought prior to the election only if
it is filed within 30 days after the date on which the
issue was certified to, the governor, as provided in 13-
27-308, and only for the following causes:
(i) violation of the law relating to qualifications
for inclusion on the ballot;
(ii) constitutional defect in the substance of a
proposed ballot issue; or
(iii) illegal petition signatures or an erroneous or
fraudulent count or canvass of petition signatures.
Representative Cobb brought suit within the 30 days provided and
alleged that the proposed ballot issue contains a substantive
constitutional defect. The District Court agreed. On appeal, the
State points out that pre-election challenges to initiatives or
referenda are generally viewed with disfavor. It also argues that
the defect complained of is not a substantive one, and, therefore,
no pre-election judicial review is allowed under § 3-5-302(6) (a),
MCA.
Judicial intervention in referenda or initiatives prior to an
election is not encouraged. As this Court has noted,
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.
State ex rel. Boese v. Waltermire (1986), 224 Mont. 230, 234, 730
P.2d 375, 370. The State contends that such judicial review is
only proper where the initiative or referendum was not properly
submitted under the election laws or where the initiative was
4
unconstitutional on its face. State ex rel. Montana Citizens for
the Preservation of Citizens' Rights et al. v. Waltermire (1986),
224 Mont. 273, 276, 729 P.2d 1283, 1285. See also State ex rel.
Montana School Board Association v. Waltermire (1986), 224 Mont.
296, 729 P.2d 1297; Boese
-I 730 P.2d 375. Here, improper
submission of the bill was not alleged and is not an issue.
Further, the District Court specifically concluded that Senate Bill
37 is not unconstitutional on its face. Under these circumstances,
the State contends that pre-election judicial review is not
appropriate.
Montana Citizens for the Preservation of Citizens' Rights and
the other similar cases cited by the State are not strictly on
point. All are cases where this Court was asked to assume original
jurisdiction over a pre-election challenge, without the issue first
being addressed by a district court. Here, the matter was
presented to and decided by the District Court and comes before
this Court on appeal. We therefore are not determining whether
assumption of original jurisdiction is appropriate. Furthermore,
these cases merely list the reasons for which we have exercised
original jurisdiction and granted such petitions in the past; they
in no way foreclose the ability of this Court to grant relief on
other grounds should sufficient reason exist to do so. Beyond
that, the State's argument ignores 5 3-5-302(6) (a), MCA, which
allows judicial review in cases involving a substantive
constitutional defect, not just in cases where the measure is
unconstitutional on its face. Representative Cobb alleged a
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substantive constitutional defect in the referendum. While such
pre-election challenges will be closely scrutinized, they are
nevertheless permitted under the plain language of 5 3-5-302(6)(a),
MCA.
The State nevertheless.argues that the District Court erred by
enjoining the presentation of Senate Bill 37 to the electorate.
The State contends that 5 3-5-302(6) (a), MCA, is not applicable in
this case because the defect complained of is not a substantive
one.
Nothing in Senate Bill 37 as presented creates an obvious
constitutional problem. The problem arises not from what was
included but, rather, from what was omitted. The failure of the
bill to address Article IV, Section 7(3), of the Montana
Constitution or to dispose of the duty contained therein would
leave an obvious defect in the constitution. The bill purports to
abolish the office of secretary of state but leaves one duty
assigned to that office, with no provision for who must assume that
duty. The State contends that this is not a substantive
constitutional defect because the legislature couid define the term
"secretary of state" as used in Article IV, Section 7(3) and
reassign the duty. It further contends that the defect could also
be cured by addressing it through another referendum at a later
election. The existence of such remedies, it argues, means the
defect is not one of substance but only of form. We disagree.
The difference between a defect of form and a defect of
substance is not dictated by the ease or availability of a remedy.
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As the State noted, a defect of form is " ialn imperfection in the
style, manner, arrangement, or non-essential parts of a legal
instrument" while a defect of substance is "[aln imperfection in
the body or substantive part of a legal instrument" including "the
omission of something which is essential to be set forth." Black's
Law Dictionary (6th ed. 1991) at 419. We cannot construe the
failure to remove a reference to and a duty of the office
ostensibly abolished to be merely a problem of style or
arrangement. Instead, it is exactly "the omission of something
which is essential to be set forth."
Moreover, we are not persuaded that the hypothetical remedies
presented would in fact solve the problem. The State argues that
the legislature can define what is meant by the term "secretary of
state" as used in the constitution. The State does not, however,
explain how the legislature itself could do this. The constitution
may only be amended by a vote of the people. Art. XIV, Sec. 8 and
9, Mont.Const. It is unclear how the State imagines the
legislature could,define a term in the constitution without first
presenting the matter to the people, when, as here, the definition
chosen would change the effect of the section in which the term is
included. In any case, it would be a futile and inconsistent
exercise to abolish the office of secretary of state and then go
back and attempt to define that which has just been abolished.
The State further contends, however, that the defect could by
cured by presenting another referendum to the people at a later
election prior to the January 1, 2001, effective date of Senate
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Bill 31. But this is not a guaranteed solution; if the electorate
voted in favor of the first referendum but against the second, the
constitutional defect would remain in place.
Affirmed.
We Concur:
Chief Justice
Chief Justice J. A. Turnage, dissenting.
I respectfully dissent from the majority opinion. I dissented
from the order of this Court on July 18, 1996, in this cause and
stated that the District Court should be reversed.
The people should have been allowed to vote on the constitu-
tional amendment referred to the people through Senate Bill 37,
passed in the 1995 legislative session, the substance of which
would have transferred the functions of the secretary of state to
the lieutenant governor, thereby eliminating the office of the
secretary of state.
The merits of this proposal are not at issue. The proposal's
merits or lack of merits are matters to be decided by vote of the
people. What is at issue is the right of the people to vote on a
constitutional referendum--a right which the Court has denied in
this matter.
In State ex rel. Harper v. Waltermire (19841, 213 Mont. 425,
691 P.2d 826, this Court declined to intervene in the referendum
process where, as here, the challenge was not to a substantive
defect in the text of the referendum.
Section 3-5-302(6) (ii), MCA, provides in pertinent part that
"a contest of a ballot issue submitted by initiative or referendum
may be brought prior to the election only . . [for1 constitution-
al defect in the substance of a proposed ballot issue." (Emphasis
added.) Here, the defect which concerned the District Court is
that one reference to a "secretary of state" will be left in
Article IV, Section 7(3), of the Montana Constitution without
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definition. This is not a substantive defect. To the extent that
it constitutes a defect at all, it is a defect of form, and it is
one which the legislature has the power to cure by providing an
appropriate definition.
The only omission is the failure of the legislature to define
what is meant by a "secretary of state" who will perform a
particular ministerial function (i.e., submitting an issue to the
qualified electors at the next designated election). That is not
something which must essentially be defined within the body of the
Constitution itself, particularly where, as here, Article IV,
Section 3 of the Montana Constitution specifically gives the
legislature the power to set requirements for the administration of
elections. The legislature has the ability and authority to
provide definition of the term "secretary of state" as it is used
in that one provision.
Clearly, the defect in the referendum language is one of form
and not one of substance. In failing to recognize this fundamental
principle, the majority has denied the people the right to vote on
an important constitutional referendum.
I would reverse the District Court.
10
September 26, 1996
- .--
(ZERTIFICATE OF SERVICE
I hen:by certify that the following certified order was sent by United States mail, prepaid,
to thf: following named:
Joseph P. Mazurek, Attorney General
Kimberly A. Kradolfer, Assistant Attorney General
Justice Building
P.O. Box 201401
Helena, MT 59620-14”’“1
Garth Jacobson,Esq.
in Office of the Secretary of State
P.O. Box 202801
Helena, MT 59620-2801
John Cobb
Attorney at Law
P.O. Box 388
Augusta, MT 59410-0388
_. ,.
ED Sh’--’
Illill
CLER OK THE SUPREME COURT
~~~~~~~~~~ OF
STATE OF MONTANA
--_ -n/l&--
BY: / -
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