No. DA 06-0740
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 75
MONTANANS FOR EQUAL APPLICATION
OF INITIATIVE LAWS, a Montana corporation,
Plaintiff and Appellant,
v.
STATE OF MONTANA, by and through
BRAD JOHNSON, in his capacity as
Secretary of State, RAISE MONTANA’S
COMMITTEE TO INCREASE THE MINIMUM
WAGE, Political Ballot Committee,
Defendants and Respondents.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADV 2006-1387,
Honorable Kenneth R. Neill, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David G. Dennis, Church, Harris, Johnson & Williams, P.C.,
Great Falls, Montana
For Respondent State of Montana:
Hon. Mike McGrath, Montana Attorney General, Anthony Johnstone,
Pam Bucy, Assistant Attorneys General, Helena, Montana
For Respondent Raise Montana’s Committee to Increase the Minimum Wage:
James P. Molloy, Molloy Law Firm, Helena, Montana
Brian K. Gallik, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana
Submitted on Briefs: December 20, 2006
Decided: March 19, 2007
Filed:
__________________________________________
Clerk
2
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Montanans for Equal Application of Initiative Laws (Opponents) filed an action
seeking to invalidate certain signatures gathered on behalf of Initiative 151 (I-151) and to
enjoin the Secretary of State from including this initiative on Montana’s November 7,
2006 general election ballot. After an expedited hearing, the District Court for the Eighth
Judicial District, Cascade County, granted summary judgment concluding that
Opponent’s claim was barred by the 30-day limitations period contained in § 3-5-302(6),
MCA. Opponents appeal. We hold that Opponents’ appeal has been rendered moot by
Article III, Section 4(3) of the Montana Constitution.
¶2 Opponents raised the following issue on appeal: Whether the District Court erred
in determining that § 3-5-302(6), MCA, bars Opponents’ challenge to I-151.
Factual and Procedural Background
¶3 I-151 is a ballot initiative intended to increase the state minimum wage. Raise
Montana’s Committee to Increase the Minimum Wage (Raise Montana) is a registered
political committee whose purpose is the support of I-151. On January 24, 2006, the
Secretary of State approved Raise Montana’s petition to place I-151 on the November 7,
2006 general election ballot. Thereafter, Raise Montana began the process of gathering
the signatures necessary to place I-151 on the ballot.
¶4 Each petition contained the following “Statement of Purpose”:
This measure raises the state minimum wage to the greater of either $6.15
an hour or the federal minimum wage. This measure also adds an annual
cost-of-living adjustment to the state minimum wage. Under existing law,
the state minimum wage is equal to the federal minimum wage, which is
$5.15 an hour with no cost-of-living adjustment. This measure does not
3
change the $4.00 an hour minimum wage for a business whose annual gross
sales are $110,000 or less. This measure would take effect January 1, 2007.
¶5 Raise Montana submitted its first petition signatures to county election
administrators for their review on February 2, 2006. In April or May 2006, Raise
Montana decided to employ a limited number of paid signature gatherers to supplement
its volunteer force.
¶6 On July 12, 2006, the Secretary of State notified the Governor that a sufficient
number of valid signatures had been obtained to qualify I-151 for the general election
ballot. As of that date, 22,527 valid signatures comprising at least five percent of the
qualified electors in 43 legislative representative districts, had been obtained on the I-151
petitions. The Secretary of State eventually certified a total of 33,925 signatures for
I-151; 11,617 more than necessary to qualify I-151 for the ballot.
¶7 On September 13, 2006, the District Court for the Eighth Judicial District,
Cascade County, invalidated the certifications of CI-97, CI-98 and I-154. The court
found that
it was more probable than not that the out-of-state signature gatherers
executed certification affidavits attesting that they personally gathered or
assisted in gathering signatures that someone else actually gathered outside
of their presence without any direct assistance from them. . . . [And that
the] evidence established that the signers were located in various cities and
counties throughout the state and that the attesting signature gatherer could
not have possibly been present when many persons signed their petitions.
Montanans for Justice v. State ex rel. McGrath, 2006 MT 277, ¶ 45, 334 Mont. 237, ¶ 45,
146 P.3d 759, ¶ 45. The court also found substantial evidence of widespread fraud and
4
the use of highly-paid, out-of-state signature gatherers who fraudulently induced
Montanans to sign the petitions at issue. Montanans for Justice, ¶¶ 2, 44.
¶8 Opponents filed their Complaint against the State, by and through the Secretary of
State, and against Raise Montana on October 3, 2006, seeking to decertify I-151 from
inclusion on Montana’s November 7, 2006 general election ballot. Opponents argued in
their Complaint that those individuals gathering signatures to place I-151 on the ballot,
engaged in signature gathering practices that violated state law. Specifically, Opponents
contended that those signature gatherers submitting affidavits with each sheet of
signatures did not actually “gather or assist in gathering” the accompanying signatures in
violation of § 13-27-307, MCA. Opponents did not contend that any of the signatures on
the petitions for I-151 were obtained by fraud, deceit or misrepresentation. Opponents’
Complaint was filed 83 days after the Secretary of State certified I-151 for inclusion on
the ballot.
¶9 Opponents moved for an expedited hearing on their Complaint. The Honorable
Kenneth Neil of the District Court for the Eighth Judicial District, Cascade County,
assumed jurisdiction of the case and granted Opponents’ motion to expedite.
¶10 On October 16, 2006, Raise Montana filed a Motion for Summary Judgment
contending that Opponents’ challenge to I-151 was barred by the 30-day limitations
period in § 3-5-302(6), MCA, which provides:
(6) (a) Except as provided in subsection (6)(b), a 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:
5
(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.
(b) A contest of a ballot issue based on subsection (6)(a)(i) or
(6)(a)(iii) may be brought at any time after discovery of illegal petition
signatures or an erroneous or fraudulent count or canvass of petition
signatures.
(c) Nothing in subsection (6) limits the right to challenge a measure
enacted by a vote of the people.
Raise Montana argued that Opponents were required to file their challenge within
30 days of the date I-151 was certified to the Governor because Opponents could have
discovered the illegal signatures at that time.
¶11 On October 25, 2006, the District Court heard argument on Raise Montana’s
summary judgment motion. During the hearing, Opponents’ counsel admitted that the
facts upon which his client relied for its Complaint were available both before the
Secretary of State certified I-151 for the ballot and within 30 days after the Secretary of
State certified I-151 for the ballot. The court took the matter under advisement and
immediately proceeded to the scheduled bench trial.
¶12 Thereafter, the District Court granted Raise Montana’s Motion for Summary
Judgment and dismissed Opponents’ Complaint. In its November 3, 2006 order granting
Raise Montana’s motion, the court concluded that Opponents’ claim was barred by the
30-day limitations period set forth in § 3-5-302(6), MCA. Opponents filed their Notice
of Appeal on November 6, 2006, the day before the general election. Opponents
requested an expedited appeal process and asked this Court to enjoin the Secretary of
6
State from canvassing and transmitting the statement of the canvas on I-151 pending final
resolution of this matter. We granted Opponents motion to expedite the appeal, but
denied Opponents motion to enjoin.
¶13 On November 7, 2006, election day, 73% of Montana voters approved I-151 with
285,535 persons voting in favor of the initiative and 27% of Montana voters, or 107,294
persons, voting against it. See Montana Ballot Measures, http://leg.mt.gov/textonly/
research/information/ballot_measures.asp (accessed March 8, 2007).
Standard of Review
¶14 We review a district court’s decision to grant summary judgment de novo,
applying the same evaluation under M. R. Civ. P. 56, as the district court. Cole ex rel.
Cole Revocable Trust v. Cole, 2003 MT 229, ¶ 8, 317 Mont. 197, ¶ 8, 75 P.3d 1280, ¶ 8
(citing Vivier v. State Dept. of Transp., 2001 MT 221, ¶ 5, 306 Mont. 454, ¶ 5, 35 P.3d
958, ¶ 5). In this regard, we have stated that
[t]he movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues of fact do not
exist, the court must then determine whether the moving party is entitled to
judgment as a matter of law.
Cole, ¶ 8 (quoting Bruner v. Yellowstone County, 272 Mont. 261, 264-65, 900 P.2d 901,
903 (1995)).
¶15 Moreover, in evaluating a motion for summary judgment, “the evidence must be
viewed in the light most favorable to the non-moving party, and all reasonable inferences
will be drawn therefrom in favor of the party opposing summary judgment.” Prindel v.
7
Ravalli County, 2006 MT 62, ¶ 19, 331 Mont. 338, ¶ 19, 133 P.3d 165, ¶ 19 (quoting
Lopez v. Great Falls Pre-Release Services, 1999 MT 199, ¶ 16, 295 Mont. 416, ¶ 16, 986
P.2d 1081, ¶ 16). In addition, we review a district court’s legal conclusions for
correctness. Cole, ¶ 8.
Discussion
¶16 The Montana Constitution allows for the enactment of statutes by initiative. Mont.
Const. art. III, § 4. In addition, Title 13, Chapter 27, MCA, sets forth the procedures by
which statutes may be enacted by initiative. The following is a summary of the
procedures set forth in Title 13, Chapter 27.
¶17 The Montana Attorney General and the Secretary of State must approve a petition
before the petition is circulated for signatures. Section 13-27-202(3), MCA. The
Secretary of State makes the final decision as to the approval or rejection of the petition.
Section 13-27-202(4)(a), MCA. Once approved, statutory initiative petitions
[s]hall be signed by at least five percent of the qualified electors in each of
at least one-half of the counties and the total number of signers must be at
least five percent of the total qualified electors of the state.
Mont. Const. art. III, § 4(2). In other words, in order to qualify for a general election
ballot, proponents of an initiative must obtain the signatures of five percent of the voters
in each of 34 legislative districts in addition to a statewide total of 22,308 signatures.
Montanans for Justice, ¶ 9.
¶18 Petition signatures are submitted to the applicable county election administrators
to certify that the person who signed the petition is a registered voter in their county. The
county election administrators check all of the names of the petition signers and compare
8
a sample of the signatures on each petition against the signatures on voter registry cards.
They then tally the number of valid signatures that correspond to registered voters in their
county. Section 13-27-303(1), MCA. Those numbers are then forwarded, along with the
petitions, to the Secretary of State’s Office. Section 13-27-304, MCA.
¶19 The Secretary of State tallies the number of certified signatures that are provided
to him by the county election administrators, by house district. Section 13-27-307, MCA.
Once the requisite number of signatures for each district is obtained, the Secretary of
State notifies the Governor that he has certified that a sufficient number of signatures has
been obtained to qualify the measure for the general election ballot. Section 13-27-308,
MCA. That same day, the Secretary of State transmits a copy of the form in which the
initiative will appear on the ballot to the Attorney General for approval. Section 13-27-
310, MCA.
¶20 The Secretary of State then prepares a Voter Information Pamphlet containing,
among other things, the complete text of the initiative and the form in which it will
appear on the ballot. Section 13-27-401, MCA. Thereafter, the Secretary of State
furnishes to the official of each county responsible for preparation of the ballots a
certified copy of the form in which the initiative is to appear on the ballot. Section 13-
27-501, MCA. Each county official responsible for the preparation of the ballots is
required to insure that the initiative appears on the official ballots in the form certified by
the Secretary of State. Section 13-27-502, MCA.
¶21 After the election, the Secretary of State prepares a statement giving the whole
number of votes cast in the State for and against the initiative and transmits a certified
9
copy of the statement to the Governor. Section 13-27-503, MCA. If the initiative was
approved by a majority of the voters, the Secretary of State also sends a certified copy of
the initiative along with a copy of the statement referred to above to the legislative
services division. Section 13-27-504, MCA.
¶22 In the case sub judice, the District Court concluded that Opponents’ claim was
untimely under § 3-5-302(6), MCA, because it was not filed within 30 days after the date
on which the Secretary of State notified the Governor that a sufficient number of
signatures had been obtained to qualify I-151 for the general election ballot. Hence, the
court granted Raise Montana’s Motion for Summary Judgment and dismissed Opponents’
Complaint.
¶23 Whether the District Court erred in determining that § 3-5-302(6), MCA, bars
Opponents’ challenge to I-151.
¶24 Opponents contend on appeal that the District Court adopted an interpretation that
ignores the plain language of § 3-5-302(6)(b), MCA, and constitutes an unjustified and
improper redrafting of that statute. Opponents maintain that rather than reading this
statute as written by the Legislature to provide that a contest of a ballot issue based on
subsection (6)(a)(i) or (6)(a)(iii) may be brought “at any time after discovery of illegal
petition signatures” (emphasis added), the District Court improperly interpreted the
statute to read that a contest of a ballot issue based on subsection (6)(a)(i) or (6)(a)(iii)
may be brought “at any time within 30 days after plaintiff could have discovered the
illegal petition signatures” (emphasis added). Opponents assert that the District Court’s
interpretation radically changes the meaning and application of the statute and ignores the
10
longstanding rule of statutory construction that prohibits a court from “insert[ing] what
has been omitted.” Section 1-2-101, MCA.
¶25 Raise Montana, on the other hand, argues that the District Court correctly held that
§ 3-5-302(6)(a), MCA, barred Opponents’ Complaint because Opponents waited 83 days
after certification to bring their challenge and that challenge was based only on facts that
had been publicly available at the Secretary of State’s office. More importantly however,
Raise Montana argues, and we agree, that under Article III, Section 4(3) of the Montana
Constitution, Opponents challenge to the I-151 petitions is now moot. Article III, Section
4(3), provides: “The sufficiency of the initiative petition shall not be questioned after the
election is held” (emphasis added). As Raise Montana points out in its brief on appeal,
the phrase “shall not be questioned” erects an absolute bar that prohibits courts or
administrative officials from engaging in any inquiry into the sufficiency of an initiative
petition after the initiative has passed on election day. To hold otherwise would require
reading into Article III, Section 4(3), wording that simply is not there.
¶26 The United States Supreme Court has recognized that the phrase “shall not be
questioned” is absolute. See e.g. Eastland v. United States Servicemen’s Fund, 421 U.S.
491, 501, 95 S.Ct. 1813, 1820 (1975) (noting the absoluteness of the terms “shall not be
questioned” in the United States Constitution’s Speech or Debate Clause, Art. I, § 6).
¶27 A review of the record of the 1972 Montana Constitutional Convention confirms
that the convention delegates intended that challenges to initiative petitions be barred
once a majority of the electorate approved the initiative. Delegate Mark Etchart,
chairman of the committee responsible for recommending the provisions governing
11
initiatives, explained that the purpose of the initiative petition signature requirement of
five percent is “to prevent frivolous legislative efforts by a small minority” but still
“allow serious popular measures to be initiated by the people.” Montana Constitutional
Convention, Verbatim Transcript, March 18, 1972, p. 2696. As Raise Montana notes in
its brief on appeal, once an election is held and a majority of voters have approved an
initiative, that concern is satisfied, thus the issue of petition signature requirements
becomes irrelevant.
¶28 Similarly, the State notes in its brief that Article III, Section 4(3), expresses an
absolute principle that once the vote has been held, the will of all of the people at the
polling place moots any disputes about the will of five percent of the people in the
petition process. We agree with the State’s and with Raise Montana’s arguments that
after a majority of the Montana electorate have voted to support an initiative, it is absurd
for the State and the courts to be tied up with the question of whether five percent of
Montana voters had wanted it on the ballot.
¶29 At the 1972 Montana Constitutional Convention, Delegate Thomas Joyce
proposed the language contained in Article III, Section 4(3), and it was adopted with little
discussion. In proposing this addition to Article III, Section 4, Delegate Joyce stated:
I propose to add this sentence just to make perfectly clear—I—when I was
a young lawyer and knew everything, much more than I do now, I had the
privilege of being an assistant attorney general and had the privilege of
arguing in the Supreme Court of Montana the veterans’ bonus initiative,
and one of the challenges that was made in that case, after the election was
held and after it passed overwhelmingly, was that the petitions that had
been circulated in the various counties were insufficient, that some of the
names were forgeries, and that sort of thing. And the argument was made,
quite seriously, that, since the Constitution required that these petitions be
12
signed by the sufficient number in each county—and we had the dilemma,
then, of going back and trying to prove whether or not some of them were
forgeries. We argued to the Supreme Court that once the election was held,
it couldn’t be challenged, but notwithstanding, the attorney on the other
side kept needling us that the Constitution was mandatory. And so, I just
thought that perhaps this little sentence wouldn’t do any harm to—would
make it perfectly clear in the future that once the election is held, why, you
can’t challenge the sufficiency of the petitions.
Montana Constitutional Convention, Verbatim Transcript, March 18, 1972, pp. 2698-99
(emphasis added).
¶30 In the case that Delegate Joyce referred to, State ex rel. Graham v. Board of
Examiners, 125 Mont. 419, 427-28, 239 P.2d 283, 289 (1951), this Court stated that
“after the people have voted on the measure and a great majority of the voters throughout
the state have expressed their approval, the courts presume that the public interest was
there and technical objections to the petition or its sufficiency are disregarded.”
¶31 The facts in Graham are these: At the general election on November 7, 1950, the
people of Montana voted for an initiative providing for an honorarium to be paid to each
resident of Montana who served in World War II. This initiative authorized the State
Board of Examiners to issue bonds to raise funds necessary to pay the honorarium. It
further provided that the bonds were to be payable from the proceeds of a two-cent
increase in the tax on cigarettes. Graham, 125 Mont. at 421-23, 239 P.2d at 286. In
February 1951, Graham and other taxpayers and cigarette smokers filed an action to
restrain the sale of the bonds. They alleged defects in the petitions and irregularities in
placing the measure on the ballot including signatures not properly certified, signatures
lacking identifying addresses and signatures of individuals who resided outside Montana.
13
Graham, 125 Mont. at 423-24, 239 P.2d at 286-87. The District Court eventually
dismissed the complaint and Graham appealed.
¶32 In reaching its holding in Graham, this Court cited with approval several cases
from other jurisdictions. In one such case, where the sufficiency of a referendum petition
was questioned, we noted that the Supreme Court of Nebraska had long ago determined
that “the question must be raised in time for the appellate court to rule upon it prior to the
election.” Graham, 125 Mont. at 428, 239 P.2d at 289 (citing Barkley v. Pool, 169 N.W.
730, 732 (1918)) (emphasis added). To that end, the Supreme Court of Nebraska stated:
[B]oth the Constitution and the statute contemplate a speedy hearing, to the
end that judgment may be had in time for the next ensuing election, and
that the courts would be justified in refusing to entertain an action or
defense because of laches on the part of either of the parties.
Barkley, 169 N.W. at 732.
¶33 Consequently, both the Supreme Court of Nebraska and this Court articulated that
it is not just a matter of filing the complaint before the election or even filing the appeal
before the election. The complaint must be filed in time for the appellate court to rule
upon it prior to the election. We confirmed this idea most recently in Montanans for
Justice v. State ex rel. McGrath, 2006 MT 277, ¶ 31, 334 Mont. 237, ¶ 31, 146 P.3d 759,
¶ 31, wherein we stated that there is a “truncated timeline available for resolving
preelection initiative challenges,” during which those challenges must be “raised, proven,
and if necessary remedied.” In the case sub judice, Opponents waited until a few weeks
before the election to file their Complaint, consequently they did not file their appeal in
14
this Court until the day before the election, hardly enough time for an appellate court to
render a decision.
¶34 The reasons for prohibiting challenges to the sufficiency of initiative petitions
were made clear in Graham and numerous other cases before and since our decision in
Graham. For instance, we quoted with approval in Graham the following statement of
the Supreme Court of Arizona:
[A]fter a statute has been passed by a vote of the people and promulgated as
the law, this court’s sphere of inquiry is and should be whether the law
itself in its final form is constitutional as to its provisions, and not whether
there was a constitutional defect in the proceedings leading to its final
passage. The act as initiated and proclaimed by the governor is the act that
the court will examine in determining its constitutionality, and . . . we
refuse to give legal effect to the procedural defect. There was a time to
raise procedural questions, but it was before the votes were cast and not
after the law had been proclaimed to be the law of the state.
Graham, 125 Mont. at 428-29, 239 P.2d at 289 (quoting Hernandez v. Frohmiller, 204
P.2d 854, 865 (Ariz. 1949)). “[W]here . . . the election has been held the will of the
people there expressed by their vote should not be defeated.” Graham, 125 Mont. at 432,
239 P.2d at 291 (citing State ex rel. Kehoe v. Stromme, 49 Mont. 25, 139 P. 1002 (1914);
State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210 (1914), overruled on other
grounds by Marshall v. State, 1999 MT 33, 293 Mont. 274, 975 P.2d 325; Shekelton v.
Toole County, 97 Mont. 213, 33 P.2d 531 (1934)).
¶35 Courts in other states with initiatives and referenda have also held that an election
terminates challenges to petitions. For example, in Barkley, the case cited with approval
by this Court in Graham, the Supreme Court of Nebraska stated that the framers of that
15
state’s constitution would never intend that a petition challenge could overturn a measure
that has been approved by the electorate.
If it be suggested that the vote should be had on the day named . . .
then it might come to pass that the petitioners would be sustained by an
overwhelming vote of the people, and yet the submission of the vote be set
aside by a later decision of the court holding that the petition itself or the
manner of its submission was insufficient. Constitution makers would
never intend that.
Barkley, 169 N.W. at 732.
¶36 Some years later, in Beene v. Hutto, 96 S.W.2d 485, 488 (Ark. 1936), a case
involving an initiative intended to fix the compensation, expenses and staff of certain
county officials, the Arkansas Supreme Court declared:
[A]fter a question is submitted to and voted upon by the people, the
sufficiency of the petition is of no importance . . . because, whether
sufficient or insufficient, if the measure is adopted by the people at the
election, it becomes the law.
¶37 Similarly, the Nevada Supreme Court stated:
Where resort to this court is had to prevent an issue from being
presented for popular election and when such resort is tardily had without a
showing of good cause for such lateness and when, due to such tardiness
and the nature of the issues of law presented, orderly appellate
consideration cannot be had without disruption of the process of election,
this court will refuse determination of those issues on the merits.
Beebe v. Koontz, 302 P.2d 486, 489 (Nev. 1956).
¶38 In Beebe, petitioner sought writs of mandate and injunction to have a tax
referendum omitted from the general election ballot for using the phrase “qualified
electors” in the referendum petitions rather than the term “voter.” The action was filed in
the district court one month prior to the election. The district court issued its denial of
16
injunctive relief three days later and the notice of appeal was filed in the Supreme Court
of Nevada on the same day. Oral argument in the matter was heard more than three
weeks prior to the general election, yet the Supreme Court of Nevada declined to rule on
the matter stating:
The legal issues presented in these matters cannot be decided
forthwith upon their merits. If such decision is to stand as law a careful
consideration must be had of the many issues already mentioned.
We can, then, foresee that in the course of orderly appellate
consideration the judicial process itself may well render these issues of law
moot prior to the announcement of our decision.
Under these circumstances for this court to entertain this litigation
further would amount to an unwarranted interference by the judicial
department with the electoral franchise of the people of this state. Such
interference, so far as the ensuing election is concerned, might well amount
to a substantial destruction of that most important civil right.
Beebe, 302 P.2d at 490.
¶39 The same year the Supreme Court of Nevada issued its decision in Beebe, the
Supreme Court of Missouri, in a case involving a declaratory judgment action attacking
the constitutionality of Missouri’s cigarette tax laws, cited with approval our decision in
Graham and stated:
As a general rule, after a legislative measure has been passed by the
general assembly, approved by the voters on referendum and proclaimed by
the governor to be in full force and effect as a law of the State of Missouri,
the courts will not hold such act invalid because of procedural errors or
defects occurring during the course of its adoption.
Brown v. Morris, 290 S.W.2d 160, 164 (Mo. 1956).
¶40 And, in Renck v. Superior Court of Maricopa County, 187 P.2d 656 (Ariz. 1947),
the plaintiffs filed a lawsuit before election day challenging the sufficiency of an
initiative petition. The election went forward while the suit was proceeding, and the
17
initiative was approved by the electorate. Renck, 187 P. 2d at 658. After the election, the
Arizona Supreme Court issued an order terminating the judicial proceedings challenging
the sufficiency of the initiative petition. Renck, 187 P.2d at 661. The court in Renck held
that “[o]nce the measure has been placed upon the ballot, voted upon and adopted by a
majority of the electors, the matter becomes political and is not subject to further judicial
inquiry as to the legal sufficiency of the petition originating it.” Renck, 187 P.2d at 661.
¶41 The Renck court also stated:
If objections had been made in the early stages of the process of submission
for the reasons now assigned, the questions would have been subjects of
judicial investigation and determination . . . . Timely appeal to the courts
upon the questions now raised, if meritorious, would have settled the matter
before the election was had. However, the measure was submitted to the
voters . . . . They were invited to believe that the formalities of the law
pertaining to the submission of the measure had been fully met. The
expense of the election was incurred, and the electors, imbued with the
conviction that they were performing one of the highest functions of
citizenship, and not going through a mere hollow form, we may assume,
investigated the question and went to the polls and voted thereon.
Renck, 187 P.2d at 659 (quoting Allen v. State, 130 P. 1114, 1115 (Ariz. 1913) (emphasis
in original).
¶42 In their reply brief in the case sub judice, Opponents claim that Kromko v.
Superior Court, 811 P.2d 12 (Ariz. 1991), a later decision of the Supreme Court of
Arizona, is contrary to the Renck decision because the appeal in Kromko was decided six
months after the election was held. On the contrary, the Supreme Court of Arizona
issued their decision in Kromko before the election was held. The court issued its formal
written opinion explaining that decision after the election. Kromko, 811 P.2d at 15. In
that opinion, the Supreme Court of Arizona stated that
18
disputes concerning election and petition matters must be initiated and
heard in time to prepare the ballots for absentee voting to avoid rendering
an action moot. We have long maintained that “if parties allow an election
to proceed in violation of the law which prescribes the manner in which it
shall be held, they may not, after the people have voted, then question the
procedure.”
Kromko, 811 P.2d at 18 (citations omitted).
¶43 And, finally, the Supreme Court of California recently explained that
once a measure has been placed on the ballot and has been voted upon by
the electorate, California decisions have been most reluctant to overturn the
results of an election on the basis of a procedural defect that has occurred at
the petition-circulation stage of the process, inasmuch as such a defect
ordinarily will have no effect on the material that is before the voters or on
the fairness or accuracy of the election result.
Costa v. Superior Court, 128 P.3d 675, 685 (Cal. 2006) (citations omitted).
¶44 In the case before us on appeal, we agree with the observation presented by the
State in its brief that although the proper application of Article III, Section 4(3), will
result in the dismissal of Opponent’s appeal, this does not mean that Opponents were
without a remedy for their claims of defects in the petition-gathering process for I-151.
Opponents could have directly challenged the Secretary of State’s certification of I-151
based on illegal petition signatures starting July 12, when I-151 was certified for the
ballot. See § 3-5-302(6)(b), MCA. Indeed, Opponents had precisely the same ability to
timely challenge the signature-gathering process in I-151 as did the challengers of CI-97,
CI-98 and I-154 in Montanans for Justice. Instead, Opponents waited until a few weeks
before the election to file their Complaint, consequently, their appeal in this Court was
not filed until the day before the election. Even though the Constitution requires that a
preelection challenge “shall be given priority by the courts,” Mont. Const. art. IV, § 7(2),
19
Opponents took a chance in filing their fact-intensive lawsuit in the District Court just
one month before the election would supersede it, and their gamble failed when time for
appellate review ran out.
¶45 The Dissent criticizes the District Judge for “improperly insert[ing] the due
diligence requirement into § 3-5-302(6)(b), MCA,” and failing to comply with the rules
of statutory construction. In support of this argument, the Dissent relies on black-letter
law—§ 1-2-101, MCA—for the proposition that in interpreting a statute a judge is
“simply to ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted or omit what has been inserted.” In further support, the
Dissent relies on another rule of statutory construction—that we discern statutory intent
by looking to the plain and ordinary meaning of the language contained in a statute.
These rules are well-established and cited in cases too numerous to mention.
¶46 Similarly, in resolving disputes of constitutional construction, this Court applies
the same rules of statutory construction when interpreting the Constitution; the framers’
intent must first be determined from the plain language of the words used. State ex rel.
Racicot v. District Court, 243 Mont. 379, 384, 794 P.2d 1180, 1183 (1990) (citing Butte-
Silver Bow Local Govern. v. State, 235 Mont. 398, 404, 768 P.2d 327, 330 (1989)).
Indeed, in State ex rel. Cashmore v. Anderson, 160 Mont. 175, 184, 500 P.2d 921, 926
(1972), cert. denied by Burger v. Anderson, 410 U.S. 931, 93 S.Ct. 1372 (1973), we
stated:
The rules of statutory construction are equally applicable to
interpretation of the meaning of provisions in the Montana Constitution. In
construing the meaning of a statute, the intent of the framers, i.e., the
20
legislature, is paramount. In determining legislative intent, resort must first
be made to the plain meaning of the words used. In construing a statute the
function of the court is simply to ascertain and declare what is in terms or
substance contained therein, not to insert what has been omitted nor to omit
what has been inserted. [Internal citations omitted.]
¶47 Moreover, where constitutional language is unambiguous and speaks for itself, our
obligation is to interpret the language from the provision alone without resorting to
extrinsic methods of interpretation. Great Falls Tribune v. Public Schools, 255 Mont.
125, 129, 841 P.2d 502, 504 (1992) (citing Great Falls Tribune v. District Court, etc.,
186 Mont. 433, 437-38, 608 P.2d 116, 119 (1980); Associated Press v. Bd. of Public
Educ., 246 Mont. 386, 391-92, 804 P.2d 376, 379 (1991)).
¶48 Here the language of Article III, Section 4(3), is unambiguous, plain and clear:
“The sufficiency of the initiative petition shall not be questioned after the election is
held.” While this Opinion sets out the Constitutional Convention background of the
adoption of this provision, the fact is, the language that the framers actually adopted
contains a specific and unequivocal preclusion, “the sufficiency of the initiative petition
shall not be questioned after the election is held” (emphasis added). Under our own well-
settled rules of construction, we must interpret the substance of the plain words used by
the framers, without insertion or omission of terms; and without resort to extrinsic
methods or aids of interpretation.
¶49 Contrary to these rules, however, and based on its interpretation of the
Constitutional Convention debates, the Dissent would ignore the plain language of
Article III, Section 4(3), and, instead, add language to this constitutional provision: “The
sufficiency of the initiative petition shall not be questioned after the election is held,
21
except when the challenge was started before the election.” Obviously, if the framers had
wanted to qualify the language of Article III, Section 4(3), in the manner suggested by
the Dissent, they could have done so. Just as obviously, they chose not to do so—the
Dissent’s interpretation of the debates to the contrary notwithstanding. This is why we
are obligated, under our rules of construction, to render our interpretation on the plain
language of statutes and constitutional provisions rather than on the statements and give-
and-take of the legislators’ or delegates’ debates. The irony here is that the Dissent is
doing to Article III, Section 4(3), precisely what it is criticizing the District Court for
doing in interpreting § 3-5-302(6), MCA—adding language that is not there.
¶50 Finally, at ¶ 66, the Dissent takes issue with the Court’s reliance on Montanans for
Justice (Opinion, ¶ 33). The Dissent states that “the issue now before us could not have
been raised in Montanans for Justice since our Opinion was issued on October 26, 2006,
prior to the general election in November” (emphasis in original). While facially true,
the statement is, at the same time, somewhat disingenuous. While the Opponents here, as
noted above, could not have raised an Article III, Section 4(3), challenge pre-election,
there was absolutely nothing stopping them from raising precisely the same petition-
sufficiency challenges in enough time prior to the election so as to allow their challenge
to be adjudicated in the District Court and then appealed to this Court—as did the
plaintiffs in Montanans for Justice. The Opponents did not need to wait for our decision
in Montanans for Justice to timely mount their own challenge on the same grounds. As
observed by Chief Justice Gray:
22
Confrontation Clause arguments pursuant to the Sixth Amendment to the
United States Constitution have been available since that Clause became
applicable to the states via the Fourteenth Amendment. Equating the
unavailability of a particular court decision to the unavailability of the Sixth
Amendment argument simply enables counsel to neglect consideration of
available constitutional challenges until such time as another lawyer has
had the foresight to make such an argument in her or his case, and then
piggyback onto the other lawyer’s sound thinking and resulting success. I
am not persuaded the Court is wise in encouraging such conduct by
Montana lawyers in representing defendants in criminal cases.
State v. Carter, 2005 MT 87, ¶ 42, 326 Mont. 427, ¶ 42, 114 P.3d 1001, ¶ 42 (Gray, C.J.,
dissenting).
¶51 The Dissent’s arguments to the contrary, there is nothing in the plain language of
Article IV, Section 7(2), that nullifies the plain language of Article III, Section 4(3).
Indeed, both constitutional provisions have been scrupulously followed here. The courts
did give the Opponents’ challenge priority. Because of their own lack of diligence in
mounting their challenge in a timely manner, the Opponents simply did not begin their
litigation in sufficient time to appeal the trial court’s decision before the election. At that
point, the unambiguous provisions of Article III, Section 4(3), became operative—
thereafter the sufficiency of the initiative petition could “not be questioned after the
election [was] held.”
¶52 The Opponents had available to them the petition-sufficiency challenge from the
start of signature gathering for I-151. The cases of both the plaintiffs in Montanans for
Justice and the Opponents here were given priority. However, equating the unavailability
of our decision in Montanans for Justice to the unavailability of the petition-sufficiency
challenge simply enables the Opponents to neglect consideration of the challenge until
23
the Plaintiffs in Montanans for Justice had the foresight to successfully raise and litigate
the challenge. We should not reward Opponents’ attempt to piggyback on to the sound
thinking and resulting success of the Montanans for Justice plaintiffs by re-writing the
plain language of the Constitution so to save Opponents from their own lack of
forethought and diligence.
¶53 Accordingly, we hold that Opponents’ challenge to the sufficiency of the petitions for I-
151 is rendered moot by Article III, Section 4(3) of the Montana Constitution.
/S/ JAMES C. NELSON
We concur:
/S/ PATRICIA COTTER
/S/ JOHN WARNER
24
Justice W. William Leaphart concurring.
¶54 I specially concur. I agree with the Court’s conclusion that, since the electorate
has now voted on this initiative, the sufficiency of the initiative petition cannot now be
questioned, and this matter is moot under Article III, Section 4(3), of the Montana
Constitution. However, I would not reach the question of mootness under the
Constitution because I agree with the District Court’s pre-election dismissal of this
complaint as barred by the thirty-day limitations period set forth in § 3-5-302(6)(a),
MCA.
¶55 The Opponents argue that § 3-5-302(6)(b), MCA, must be interpreted literally as
allowing a contest to a ballot issue to be filed “at any time after discovery” of illegal
petition signatures. Under a literal “at any time” interpretation, Opponents could
challenge the initiative two months or five years after the election. Such a broad reading
of the statute, however, would put it at odds with the clear language of Article III, Section
4(3), which states that: “The sufficiency of the initiative petition shall not be questioned
after the election is held.” Opponents suggest that the Constitution is satisfied so long as
the challenge to the initiative is filed before the election, even if the court does not issue a
decision until after the election. Such a procedure, however, would render Article III,
Section 4(3), a nullity. As the Court correctly notes, Article III, Section 4(3), is designed
to serve a purpose—i.e., to put an end to challenges and to honor the will of the majority
of the voters once an election is held. Allowing a challenge to an initiative the day before
the election, leaving the Court leeway to rule on the challenge two months or five years
later, defeats the purpose of Article III, Section 4(3), just as effectively as allowing a
25
challenge to be filed a week after the election—a proposition which is clearly contra to
Article III, Section 4(3). In both instances the sufficiency of the initiative petition is
“questioned” after the election is held. Article III, Section 4(3), prohibits all post-election
“questioning” of the sufficiency of the petition. This prohibition restricts both parties and
courts from questioning the petition once the election is over. As the Court now holds,
Article III, Section 4(3), requires that challenges to initiatives must not only be filed
before the election, but must also be resolved before the election, or they become moot.
¶56 Interpreting § 3-5-302(6), MCA, in light of the above, the District Court was
correct in reading subsection (a) as establishing a general rule that challenges have to be
filed within thirty days of certification. The “at any time after discovery” language in
subsection (b) is an exception to the general rule that comes into play only if the alleged
illegality could not, with due diligence, be discovered within the initial thirty-day
limitation. As the District Court pointed out, “under this statute, lack of knowledge does
not extend the period of limitations and the period runs from the time that the facts
constituting the claim could have been discovered in the exercise of due diligence.”
Here, although Opponents based their challenge on facts that were publicly available at
the Secretary of State’s office upon certification of the initiative, they did not file their
challenge within thirty days of the Secretary of State’s certification. Rather, they waited
some eighty-three days to file their complaint. As the Court’s Opinion points out, the
Opponents here had the same opportunity to file a timely challenge to the initiative as did
the challengers of CI-97, CI-98 and I-154 in Montanans for Justice. Without any basis
for extending the thirty-day period of limitations, they waited well beyond the statutory
26
time limit to file their complaint. The District Court was correct in dismissing the
complaint as untimely.
/S/ W. WILLIAM LEAPHART
Justice Brian Morris joins in the concurring opinion of Justice Leaphart.
/S/ BRIAN MORRIS
27
Chief Justice Karla M. Gray, dissenting.
¶57 I respectfully dissent from the Court’s interpretation of Article III, Section 4(3) of
the Montana Constitution as absolutely barring—and rendering moot—the final
resolution of this case which began before the election was held on I-151. Based on the
plain language of the constitutional provision, together with the only relevant portion of
the transcript from the 1972 Montana Constitutional Convention, I would hold that
Article III, Section 4(3) does not bar the final resolution of this case. In addition, I would
reverse the District Court’s legal interpretation of § 3-5-302(6)(b), MCA, and, therefore,
its order granting summary judgment. I would remand to the District Court for its post-
trial findings of fact and conclusions of law on the underlying question in the action.
¶58 Article III, Section 4(3) provides that “[t]he sufficiency of the initiative petition
shall not be questioned after the election is held.” It is undisputed that the present case
involves “the sufficiency” of an initiative petition, rather than its substance.
¶59 Article III, Section 4(3)’s phrase “shall not be questioned” needs little
interpretation. It is clear, unambiguous and susceptible to only one rational
interpretation. The American Heritage Dictionary 1070 (New Coll. ed., Houghton
Mifflin Co. 1982) defines “question” as “[a]n expression of inquiry that invites or calls
for a reply[.]” Similarly, Black’s Law Dictionary 1259 (7th ed., West Group 1999)
defines “question” as “[a]n issue in controversy; a matter to be determined.” Thus,
pursuant to the plain meaning of the phrase, I conclude “shall not be questioned” means
shall not be put into controversy or raised as a matter to be determined.
28
¶60 The nub of the issue before us, however, relates to Article III, Section 4(3)’s
phrase “after the election is held,” not the phrase “shall not be questioned.” In this
regard, it is appropriate to begin with Delegate Joyce’s remarks during the 1972
Constitutional Convention. The Court faithfully reports Delegate Joyce’s remarks,
highlighting the portion stating that “this little sentence . . . —would make it perfectly
clear in the future that once the election is held, why, you can’t challenge the sufficiency
of the petitions.” See Opinion, ¶ 29. Delegate Joyce’s quoted remark—as well as those
prior to this quoted portion—clearly reflect that his interest in adding the language now
before us arose from an earlier case in which the sufficiency of petitions had not been
challenged until “after the election was held.” See Opinion, ¶ 29.
¶61 That is not the situation before us in this case. The facts here are that Montanans
for Equal Application challenged—that is, raised a question about—the sufficiency of the
I-151 petitions before the election was held. Delegate Joyce’s remarks support an
interpretation that a question regarding the sufficiency of an initiative petition must be
raised—that is, filed in a court of competent jurisdiction—prior to the election on the
substance of the petition. His remarks do not support the Court’s interpretation of “after
the election is held.”
¶62 Nor does the Graham case, relied on by the Court, support its interpretation. As
the Court correctly states, Graham is the case to which Delegate Joyce referred during
the Constitutional Convention. In that 1951 case, the sufficiency of a petition was not
challenged at all prior to the election. The only significance Graham has to the case now
before us is Delegate Joyce’s reliance on it in proposing the language that became Article
29
III, Section 4(3). Had Article III, Section 4(3) existed in 1951 at the time Graham was
decided, the case presently before us would not have reached this Court. However, this
constitutional language did not exist in 1951 and, as a consequence, the Graham Court
looked to other jurisdictions which had ruled on related facts and issues. It is no longer
necessary or appropriate to do so. For this Court now—in “interpreting” language which
only came into existence more than 20 years after Graham—to attempt to rely on the
same cases from other jurisdictions as the Graham Court relied on is somewhat
disingenuous. Graham and the cases relied on therein have no relevance whatsoever to
the present case and provide no basis for the Court’s interpretation of the current
constitutional language “after the election is held.”
¶63 I am similarly unpersuaded by the Court’s characterization of Delegate Etchart’s
statements during the Constitutional Convention, set forth in Opinion ¶ 27, as somehow
supporting the result it reaches. The Court does not misquote Delegate Etchart.
Importantly, however, the Court fails to take into account that Delegate Etchart’s
comments preceded Delegate Joyce’s and properly can be relied on only in the context in
which they were made.
¶64 The portion of the Constitutional Convention transcript immediately preceding
Delegate Etchart’s comments clearly establishes that the delegates were focused on
Section 4 as proposed at that time. At the time of Delegate Etchart’s comments, Section
4 read as follows:
The people may enact laws by initiative in all matters except appropriations
of money and local or special laws prohibited by this Constitution. The
highway revenue provided for in Article blank, Section 6, shall nevertheless
30
be subject to appropriation by initiative. Initiative petitions must be signed
by 5 percent or more of the legal voters in each of one-third or more of the
legislative representative districts, and the total number of signers must be 5
percent or more of the total legal voters of the state. Each petition must
contain the full text of the proposed measure. Petitions must be filed with
the Secretary of State 4 months or more prior to the election at which they
will be voted upon. The enacting clause of all initiative measures shall be:
“Be it enacted by the people of the State of Montana.”
See Montana Constitutional Convention, Verbatim Transcript, March 18, 1972, pp. 2695-
96. Thus, Delegate Etchart’s comments about preventing “frivolous legislative efforts
by a small minority,” and still allowing “serious popular measures to be initiated by the
people[,]” clearly related only to provisions contained in that proposed version of Section
4 relating to the five percent of the voters and number of legislative districts. No nexus
exists at all between Delegate Etchart’s comments and the language later proposed by
Delegate Joyce, ultimately adopted and now before us.
¶65 Article III, Section 4(3) prohibits challenges to the sufficiency of initiative
petitions raised “after the election is held.” Properly applied to the present case, the
challenge raised on October 3, 2006, when Montanans for Equal Application filed its
complaint in the District Court, is not barred by Article III, Section 4(3).
¶66 It strikes me that the closest the Court actually comes to addressing this issue is its
reliance on statements from ¶ 31 of our recent opinion in Montanans for Justice. In my
view, since the issue before us in the present case was not raised or briefed in the earlier
case, the statements on which the Court relies are dicta in their entirety. Moreover,
Montanans for Justice, ¶ 31, is merely the backdrop to our discussion of the issue
actually before us there, namely, whether the party’s due process rights had been violated
31
via a truncated period ordered by a district court for discovery and other pretrial
processes after the timely filing of a challenge to the sufficiency of petitions on other
initiatives. Indeed, the issue now before us could not have been raised in Montanans for
Justice since our opinion was issued on October 26, 2006, prior to the general election in
November. Therefore, Montanans for Justice is neither precedent nor persuasive
authority for the Court’s decision here.
¶67 Finally, it is critical to take note of Article IV, Section 7(2) of the Montana
Constitution, which provides that “[a] preelection challenge to the procedure by which an
initiative or referendum qualified for the ballot . . . shall be given priority by the courts.”
This constitutional provision clearly does not require that a final judicial determination on
a preelection challenge must be completed prior to the election. Just as clearly, Article
IV, Section 7(2) negates the Court’s reliance on Montanans for Justice and the language
therein for its determination that, absent a final preelection adjudication of a challenge to
the sufficiency of a petition, judicial resolution of the case is barred and the question is
rendered moot.
¶68 I would hold that Article III, Section 4(3) of the Montana Constitution does not
bar—and does not render moot—the issue properly before us, which is whether the
District Court erred in interpreting § 3-5-302(6), MCA, as barring Montanans for Equal
Application’s challenge to I-151. I turn now to that issue.
¶69 Defendant Raise Montana moved for summary judgment in the District Court
contending that the complaint filed by Montanans for Equal Application was barred by
the statute of limitations set forth in § 3-5-302(6)(a), MCA. Montanans for Equal
32
Application opposed the motion based on § 3-5-302(6)(b), MCA. The District Court
determined no genuine issue of material fact existed with regard to the statute of
limitations and granted summary judgment to Raise Montana. In my view, the District
Court erred in interpreting the statutes.
¶70 Section 3-5-302(6)(a), MCA, provides:
Except as provided in subsection (6)(b), a 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 . . . , 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 . . . .
Section 3-5-302(6)(b), MCA, provides that a “contest of a ballot issue based on
subsection (6)(a)(i) or (6)(a)(iii) may be brought at any time after discovery of illegal
petition signatures[.]”
¶71 It is undisputed that Montanans for Equal Application generally alleged illegal
petition signatures pursuant to § 3-5-302(6)(a)(iii), MCA, and mentioned in § 3-5-
302(6)(b), MCA. It also is undisputed that their complaint was not filed within the 30
days after the certification as generally required in § 3-5-302(6)(a), MCA. Thus, only the
interpretation of the phrase “after discovery of illegal petition signatures” in § 3-5-
302(6)(b), MCA, was before the District Court.
¶72 The District Court properly began its analysis by recognizing that a challenge
based upon illegal signatures is exempt from the 30-day general limitation period set
33
forth in § 3-5-302(6)(a), MCA. It then properly turned to the word “discovery” contained
in § 3-5-302(6)(b), MCA.
¶73 Thereafter, the District Court turned to § 27-2-102(2) and (3), MCA, the statute
defining when a civil action is commenced, and imposed that statute’s duty of due
diligence onto the case before it. The District Court concluded that
lack of knowledge does not extend the period of limitation and the period
runs from the time that the facts constituting the claim could have been
discovered in the exercise of due diligence.
Acknowledging that § 27-2-102, MCA, appears in the statute of limitations title of the
Code, separate from the statute before it, the District Court further concluded that § 27-2-
102, MCA, “enunciate[s] the legislative policy on the issue.” In my view, the District
Court erred.
¶74 I begin my analysis with the most basic rules of statutory construction. In
interpreting a statute, a judge is “simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted.” Section 1-2-101, MCA. We discern the Legislature’s intent—whenever
possible—by looking to the plain and ordinary meaning of the language contained in a
statute. See In re R.L.S., 1999 MT 34, ¶ 8, 293 Mont. 288, ¶ 8, 977 P.2d 967, ¶ 8 (citation
omitted). Finally, more specific statutes prevail over general provisions of law. Oster v.
Valley County, 2006 MT 180, ¶ 17, 333 Mont. 76, ¶ 17, 140 P.3d 1079, ¶ 17 (citation
omitted). The District Court’s interpretation fails to satisfy any of these rules of statutory
construction.
34
¶75 It is my view that the District Court improperly inserted the due diligence
requirement into § 3-5-302(6)(b), MCA, in violation of its § 1-2-101, MCA, obligation to
not “insert what has been omitted.” Section 3-5-302(6)(b), MCA, speaks only to
“discovery.” Similarly, the plain language of § 3-5-302(6)(b), MCA, extends the 30-day
limitation period in § 3-5-302(6)(a), MCA, by allowing a ballot contest based on illegal
petition signatures “after discovery” of such signatures. In my view, discovery means
discovery. Here, Montanans for Equal Application discovered the allegedly illegal
petition signatures after the 30-day limitation period and filed its complaint on October 3,
2006. The plain meaning of § 3-5-302(6)(a) and (b), MCA, requires nothing more
insofar as the facts of the present case are concerned.
¶76 Finally, it surely must be beyond cavil that § 3-5-302, MCA, is a specific statute
which vests original jurisdiction of certain causes of action in Montana’s district courts.
Among those are preelection contests of ballot issues for which very explicit provision is
made. Section 27-2-102, MCA, on the other hand, is contained in the chapter of Title 27,
MCA, addressing statutes of limitations broadly and, indeed, § 27-2-102, MCA, is within
Part 1 of that chapter, headed “General Provisions.” The statute itself is captioned
“[w]hen action commenced.” Moreover, § 27-2-102(2), MCA, sets out the “[l]ack of
knowledge . . . does not postpone the beginning of the period of limitation” part of the
discovery “duty” imposed on Montanans for Equal Application by the District Court.
Interestingly, subsection 2 begins “[u]nless otherwise provided by statute.” Section 3-5-
302(6)(b), MCA, the more specific statute, provides otherwise.
35
¶77 It is important for me to be clear, in closing, that Article III, Section 4(3) of the
Montana Constitution clearly and unambiguously prohibits a challenge to the sufficiency
of a petition filed after the election is held.
¶78 In summary, I dissent from the Court’s interpretation of Article III, Section 4(3),
and would allow this case to proceed to resolution. I would hold that the District Court
erred in interpreting § 3-5-302, MCA, and remand to that court for the entry of findings
of fact, conclusions of law and judgment on the underlying question.
/S/ KARLA M. GRAY
Justice Jim Rice joins in the foregoing dissenting Opinion of Chief Justice Karla M.
Gray.
/S/ JIM RICE
36