No. DA 06-0645
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 278
___________________________________
)
)
NOT IN MONTANA: CITIZENS AGAINST )
CI-97, a Political Ballot Committee, )
)
Plaintiff and Respondent, )
)
v. ) OPINION
) AND
STATE OF MONTANA, ) ORDER
by and through MIKE McGRATH, )
in his capacity as the Attorney General, )
and BRAD JOHNSON, )
in his capacity as Secretary of State; )
)
Defendant and Appellant, )
and )
)
STOP OVER SPENDING MONTANA, )
a Political Ballot Committee, )
)
Intervenor and Appellant. )
___________________________________ )
¶1 “Stop Over Spending Montana” (Proponents) and the State of Montana (State),
acting through the Attorney General and the Secretary of State, appeal separately
from the judgment and order of the First Judicial District Court, Lewis & Clark
County, overruling the Attorney General’s determination that Constitutional Initiative
97 (CI-97) is legally sufficient pursuant to § 13-27-202(3), MCA.
¶2 Proponents proposed CI-97 to amend the Montana Constitution with
provisions limiting the Legislature’s spending and taxation authority. Proponents had
to comply with the procedural requirements for qualifying their initiative as set forth
in §§ 13-27-101 through 504, MCA. We mention only those requirements that are
relevant to this appeal.
¶3 Proponents submitted CI-97 to the Secretary of State who in turn forwarded it
to the Attorney General for a determination of “legal sufficiency” as required by § 13-
27-202(3), MCA. The Attorney General determined that CI-97 was “legally
sufficient” to qualify for the November 2006 ballot. Proponents gathered the requisite
number of signatures in support of CI-97 and submitted them to county election
administrators pursuant to § 13-27-301, MCA. The county officials forwarded the
signatures to the Secretary of State pursuant to § 13-27-304, MCA. The Secretary of
State then certified to the Governor that Proponents had filed a completed petition, as
required by § 13-27-308, MCA, on the statutory deadline of July 21, 2006, as
determined by § 13-27-104, MCA.
¶4 “Not In Montana: Citizens Against CI-97” (Opponents) timely filed this action
on July 27, 2006, in the First Judicial District Court, Lewis & Clark County, asking
the court to overrule the Attorney General’s determination concerning the “legal
sufficiency” of CI-97. Opponents alleged that CI-97 violated the single amendment
provision found in Article XIV, Section 11, of the Montana Constitution. The District
Court issued its Memorandum and Order on September 19, 2006. The court agreed
that CI-97 violated the single amendment provision, overruled the Attorney General’s
determination, and enjoined the Secretary of State from counting any votes on CI-97.
Proponents and the State appealed separately.
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¶5 Opponents and two other ballot committees filed a separate challenge to CI-97,
as well as Constitutional Initiative 98 (CI-98) and Initiative 154 (I-154), on August
16, 2006, in the Eighth Judicial District Court, Cascade County. They challenged
these initiatives on the basis that Proponents and two other ballot committees had
gathered illegally the signatures necessary to qualify these initiatives for the ballot.
The district court agreed and invalidated the Secretary of State’s certification of CI-
97, CI-98, and I-154 on September 13, 2006. We affirmed on appeal, holding that
any votes for CI-97 would have “no force or effect.” Montanans for Justice v. State
of Montana, 2006 MT 277, ¶ 87, 334 Mont. 237, ¶ 87, ___P.3d ___, ¶ 87.
¶6 Proponents now ask this Court to reverse the District Court’s invalidation of
the “legal sufficiency” of CI-97 to allow it to be “submitted to the voters at the
November 7, 2006 election.” The State requests that we reverse the District Court
and “adopt a clear separate amendment rule.” We first must address the issue of
whether we have jurisdiction to hear these appeals as they appear to be non-justiciable
in light of our decision in Montanans for Justice. Dennis v. Brown, 2005 MT 85, ¶ 8,
326 Mont. 422, ¶ 8, 110 P.3d 17, ¶ 8.
¶7 This Court may raise questions of justiciabilty sua sponte because we lack
jurisdiction over non-justiciable matters. Dennis, ¶ 8. We include moot questions and
advisory opinions among the matters that exceed our jurisdiction. Dennis, ¶ 8. We
previously have described a question as moot when we no longer can grant effective
relief. Turner v. Mountain Engineering and Const., Inc., 276 Mont. 55, 61, 915 P.2d
799, 803 (1996).
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¶8 In Turner, a district court granted summary judgment to a mortgagee, finding
that his mortgage interest was superior to that of several construction lien creditors.
Turner, 276 Mont. at 58, 915 P.2d at 801. The construction lien creditors appealed
the ruling, but failed to stay the mortgagee’s foreclosure proceedings. Turner, 276
Mont. at 58, 915 P.2d at 801. The mortgagee proceeded pursuant to a court order to
foreclose on the property and sell it at a sheriff’s sale before this Court could address
the merits of the construction lien creditors’ appeal. Turner, 276 Mont. at 58, 915
P.2d at 801. We dismissed the appeal as moot because we had no power to reverse
the sheriff’s sale, thereby making it impossible for this Court to grant effective relief.
Turner, 276 Mont. at 64, 915 P.2d at 805; see also Graveyard Creek Ranch, Inc. v.
Bell, 2005 MT 172, ¶¶ 12-15, 327 Mont. 491, ¶¶ 12-15, 116 P.3d 779, ¶¶ 12-15.
¶9 Here, too, we are unable to grant effective relief to Proponents or the State.
Our decision in Montanans for Justice conclusively has invalidated the Secretary of
State’s certification of CI-97 for the November 2006 ballot. Montanans for Justice,
¶¶ 83-88. The Secretary of State’s certification represents a condition precedent to
qualifying CI-97 for the November 2006 ballot. Sections 13-27-101, 308, MCA; see
also Montanans for Justice, ¶¶ 85-88 (affirming the district court’s invalidation of the
Secretary of State’s certification and instructing county administrators not to count the
votes for CI-97). We could not force the county administrators to count the votes cast
for CI-97 during the November 2006 election even if we determined that the District
Court had erred when it overruled the Attorney General’s determination of “legal
sufficiency.” Montanans for Justice, ¶ 87. Proponents’ appeal, therefore, presents a
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moot question for which we can provide no effective relief. Turner, 276 Mont. at 64,
915 P.2d at 805.
¶10 A justiciable controversy is limited also to “one upon which the judgment of
the court may effectively operate,” as distinguished from a debate or argument that
proposes a purely academic conclusion, or advisory opinion. Montana-Dak. Util. Co.
v. City of Billings, 2003 MT 332, ¶ 9, 318 Mont. 407, ¶ 9, 80 P.3d 1247, ¶ 9, modified,
Havre Daily News, LLC v. City of Havre, 2006 MT 215, ¶ 36, 333 Mont. 331, ¶ 36,
142 P.3d 864, ¶ 36. Our decision in Montanans for Justice ensures that any judgment
here would have no effect on the rights of the parties and, thus, reduces the State’s
appeal to a request for an impermissible advisory opinion. See Montana-Dak. Util.
Co., ¶ 9.
¶11 The Proponents’ and the State’s appeals being non-justiciable,
¶12 IT IS HEREBY ORDERED that these appeals are DISMISSED WITH
PREJUDICE.
¶13 The Clerk of Court shall mail a copy of this Opinion and Order to all counsel
of record.
DATED this 27th day of October 2006.
/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
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