CIT. FOR PRES. OF CIT. R. v. WALTERMIRE

No. 86-400.

738 P.2d 1255 (1987)

STATE of Montana, ex rel., MONTANA CITIZENS for the PRESERVATION of CITIZENS' RIGHTS, et al., Plaintiffs and Relators, v. Jim WALTERMIRE, Secretary of State, et al., Defendants and Respondents, AND Montana Liability Coalition, Real Party in Interest.

Supreme Court of Montana.

Decided May 22, 1987.

Rehearing Denied July 7, 1987.


Attorney(s) appearing for the Case

Goetz, Madden & Dunn; James H. Goetz argued, Bozeman, for plaintiffs and relators.

Mike Greely, Atty. Gen., Helena, James M. Scheier, Asst. Atty. Gen., Helena H. Elwood English, Secretary of State's Office, Helena, for defendants and respondents.

Gerald J. Neely, argued, Billings, for real party in interest.

Shelton D. Williams, Montana Assoc. Defense Counsel, Missoula, for amicus curiae.


SHEEHY, Justice.

Following canvass by the Board of State canvassers, respondent Secretary of State has filed in his office and certified to the Governor and the Executive Director of the Legislative Council, that Art. II, Sec. 16 of the Montana Constitution has been amended by initiative through the passage by the electorate of Constitutional Initiative No. 30 (CI-30) on November 4, 1986.

The language of the amendment to Art. II, Sec. 16 as filed and certified by the Secretary of State is not the same language submitted to the electors for their vote on November 4, 1986. The difference in language is material. For that reason, principally, we determine in this original proceedings that the purported amendment of Art. II, Sec. 16 is null and void. We further determine that publication of the proposed initiative measure prior to the election did not follow constitutional mandates.

The further proceedings in this action are in continuation of the original application filed by relators in this Court on August 28, 1986. The relators came to us asking for injunction to remove CI-30 from the November 4 ballot on several grounds. This Court declined to forestall the vote on the initiative. That portion of these proceedings is reported in (Mont. 1986), 729 P.2d 1283, 43 St.Rep. 2191.

Following the election, relators filed herein on November 17, 1986 an amended application for injunction enjoining state officials from canvassing the votes cast, or from certifying that CI-30 was duly adopted. The amended application further asked for declaratory relief that CI-30 was unconstitutional, and that the election held on the initiative was unconstitutional and void. Issues were joined on the amended application, and oral argument followed on January 16, 1987. The Board of State Canvassers and the Secretary of State had already performed their official duties with respect to the passage of CI-30 before oral argument occurred, and thus that portion of the application by relators for injunction is moot. Today we pass upon the validity of CI-30 as certified in light of the process by which it was submitted for approval by the electors.

For perspective, we give the background that spurred the supporters of CI-30 to seek its adoption. Art. II, Sec. 16, of the State Constitution as adopted in 1972 provides:

Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.

In 1983, the legislature promulgated a statute (§ 2-9-107, MCA) which limited the liability of the state government or local governments in tort cases to $300,000 for each claimant and $1,000,000 for each occurrence. The validity of the limitations was attacked on the grounds that they were facially and by application discriminatory in Pfost v. State (Mont. 1985), 713 P.2d 495, 42 St.Rep. 1957. The State conceded that indeed the statute was discriminatory, but that the validity of the statute could be founded both on rationality and compelling state interest considerations. We had, however, held in White v. State of Montana (1983), 203 Mont. 363, 661 P.2d 1272, 40 St.Rep. 507, that the right to bring an action for personal injuries in Montana is a fundamental right and that any statutory impingement on that fundamental right must be measured by a "strict scrutiny" test in order to pass constitutional muster. In Pfost, the State sought to distinguish White, contending that while the right to sue for personal injury is a fundamental right, the right to recover damages is not, and that statutory limitations on the monetary recovery available to injured plaintiffs were valid. Under this contention, the clause in Art. II, Sec. 16 loomed large that "no person shall be deprived of this full legal redress." We said:

The use of the clause "this full legal redress" has major significance. It obviously and grammatically refers to the "speedy remedy afforded for injury of person, property, or character." The adjective "this" means the person, thing, or idea that is present or near in place, time or thought or that has just been mentioned. Webster's New Collegiate Dictionary (1981). The constitutional framers thus construed a "speedy remedy" as comprehending "full legal redress." A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property, or character therefore affects a fundamental right and the state must show a compelling state interest if it is to sustain the constitutional validity of the statute.

In Pfost, this Court found no compelling state interest and therefore held that the monetary limitations on damages contained in § 2-9-107, MCA, were invalid.

After Pfost, it was clear that in order for the legislature to adopt a discriminatory limitation on tort damages without a compelling state interest, the adjective "full" would have to be removed from the constitutional provision in Art. II, Sec. 16. That is precisely what the supporters of CI-30 set out to do. They circulated a petition for a constitutional amendment which would revise Art. II, Sec. 16 to read as follows:

"Section 1. Article II, section 16, of the Constitution of the State of Montana is amended to read: Section 16. The administration of justice. (1) Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. Right and justice shall be administered without sale, denial, or delay. (2) No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay. (3) This section shall not be construed as a limitation upon the authority of the legislature to enact statutes establishing, limiting, modifying, or abolishing remedies, claims for relief, damages, or allocations of responsibility for damages in any civil proceeding; except that any express dollar limits on compensatory damages for actual economic loss for bodily injury must be approved by a 2/3 vote of each house of the legislature. Section 2. Effective Date. This amendment is effective on approval of the electorate." (Underlining denotes new material; strike-outs denote deletions.)

When it is proposed that our State Constitution be amended by initiative, there are three ways under our laws by which an elector may become aware of the full text of the proposed amendment: (1) through the petition for the initiative, (2) through the voter information pamphlet, and (3) through publication by the Secretary of State.

The signer of a petition for a constitutional initiative may or may not have knowledge of the full text of the proposal. The complete text of the measure must appear on the face or on the reverse side of the petition, or be attached to it. Art. XIV, Sec. 9(1); § 13-27-201, MCA. A signature on the petition signifies the petitioner agrees to put the constitutional amendment on the ballot and does not necessarily mean the signer agrees to the amendment. Section 13-27-207(1)(c), MCA.

A complete text of the measure must also be set out in the voter information pamphlet. Section 13-27-401(1)(a), MCA. This form of publication of the complete text of the measure is important because the voter information pamphlet, after preparation by the Secretary of State, is by the county election officials mailed to all of the electors. Section 13-27-410(4), MCA.

It is in the voter information pamphlet that a glaring error as to the text of the proposal was committed. In the pamphlet, the voter was told the amendment submitted to him in part was as follows (underlining denotes new material; strike-outs denote deletions):

(2) No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.

We have noted in the foregoing discussion the critical importance of the words "this full" in Art. II, Sec. 16. In the voter information pamphlet, the very words, "this full" which brought about the effort to amend Art. II, Sec. 16 by the supporters of CI-30, were not deleted, but were indicated as being inserted. The text in the voter information pamphlet of the amendment is directly opposite to what CI-30's supporters intended. And critically, in this case, the voter information pamphlet was the only source of information for the voter as to the full text of the proposed amendment by initiative.

The gravity of the error in the voter information pamphlet can be best understood in the light of applicable law. Our statutes, providing as they do for the inclusion of the complete text in the petition for constitutional amendment (§ 13-27-207(1)(c)), MCA, in the voter information pamphlet (§ 13-27-401(1)(a)), MCA, and by publication, (§ 13-27-311, MCA,) contemplate that the ballot issue should clearly state the substance of the proposition. Board of Education of the City of El Dorado v. Powers (1935) 142 Kan. 664, 51 P.2d 421. It is elementary that voters may not be misled to the extent they do not know what they are voting for or against. Burger v. Judge (U.S.D.C.Mont. 1973), 364 F.Supp. 504, affd. 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465. Due process is satisfied if the voters are informed by or with the ballot of the subject of the amendment, are given a fair opportunity by publication to consider its full text, and are not deceived by the ballot's words. Kohler v. Tugwell (U.S.D.C.La. 1969), 292 F.Supp. 978, affd. 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755. Where a ballot proposal is misleading, the remedy is to void the election. West Shore Community College v. Manistee County Board of Cmmissioners (1973), 389 Mich. 287, 205 N.W.2d 441.

A second major defect in the procedures leading up to the vote on CI-30 was the failure to publish the proposed amendment in accordance with Art. XIV, Sec. 9 of the Montana Constitution.

There are three ways in which our state constitution may be amended, (1) through legislative referendum (Art. XIV, Sec. 8), (2) through a further constitutional convention (Art. XIV, Sec. 1) or, as in this case, (3) by initiative (Art. XIV, Sec. 9). Although the people of this state have retained the exclusive right of governing themselves, and the right to alter or abolish the constitution or form a government whenever they deem it necessary (Art. II, Sec. 12), it is nonetheless true that as long as the State Constitution is in effect, the people may amend the constitution by initiative only in the manner provided by the constitution. "The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed." Hunter v. Erickson (1969), 393 U.S. 385, 392, 89 S.Ct. 557, 561, 21 L.Ed.2d 616.

In cases of amendment by initiative, Art. XIV, Sec. 9 is the constitutional mandate with respect to publication:

(2) The petition shall be filed with the Secretary of State. If 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. (Emphasis added.)

The legislature, presumably acting in conformance with Art. XIV, Sec. 9, has provided:

13-27-311. Publication of proposed constitutional amendments. (1) If a proposed constitutional amendment or amendments are submitted to the people, the secretary of state shall have the proposed amendment or amendments published in full twice each month for two months previous to the election at which they are to be voted upon by the people, in not less than one newspaper of general circulation in each county. (2) The secretary of state may arrange for newspaper, radio or television publication of proposed constitutional amendments in each county. A summary of the amendment as provided by the attorney general, as described in 13-27-312, or 13-27-315 would suffice for the publication required by this section and should be made at least twice each month for 2 months previous to the election.

It is undisputed in this case that the Secretary of State did not arrange for radio and television publication of proposed CI-30 in any county of this state. It is further undisputed that the Secretary of State did not have the proposed amendment in full published twice each month prior to the election in any newspaper of general circulation in any county of this state. Instead, the Secretary of State did contract to have published in newspapers in the counties of this state the "statement of purpose" of CI-30 which is formulated by the Attorney General. (There is an indication in the brief of the Secretary of State that even the Attorney General's statement was not published for the required length of time in Gallatin County; however, we do not regard that circumstance in this decision.)

The Attorney General's statement of purpose, which was published in the voter information pamphlet, and also in the newspapers, stated:

This initiative would amend the Montana Constitution to authorize the legislature to determine the rights and remedies for injury or damage to person, property, or character. Currently the Constitution does not permit limits on these rights and remedies. A two-thirds vote of each house of the legislature would be required to set dollar limits on damages for economic loss resulting from bodily injury.

It is obvious that the Attorney General's statement does not comprise the full text of the proposed measure, CI-30. Only the most daring would contend that the Attorney General's statement is a "summary" of the initiative measure. "Summary" must cover the main points succinctly. Webster's New Collegiate Dictionary (150th Ed. 1981).

What is the legal consequence of the failure of publication in this case? Three cases set out the rule for us:

In State ex rel. Woods v. Tooker (1894), 15 Mont. 8, 37 P. 840, the relator sought a writ of mandamus, requiring the county clerk and recorder of Lewis and Clark County to file in his office a certificate of the relator's nomination for the office of county commissioner. The respondent answered that the certificate for the office of county commissioner was invalid under the Constitution, in that the amendment had not been properly adopted so that there was no vacancy in the office. What happened was that the constitutional amendment was proposed by the legislative assembly in 1891 and voted upon by the electors in 1892. The 1889 Constitution required proposed amendments from the legislative assembly to be published for three months previous to the next general election. In fact, this particular amendment was published for only two weeks.

The Montana Supreme Court held (DeWitt, J.) that the amendment was null and void because of the faulty publication.

First, Justice DeWitt rejected the claim of the relator that the constitutional language was merely directory. The Court said:

In another place in the same work [Cooley's Constitutional Limitations] we find the following language: "The fact is this: that whatever constitutional provision can be looked upon as directory merely, it is very likely to be treated by the legislature as if it was devoid even of moral obligation and to be, therefore, habitually disregarded. To say that a provision is directory, it seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so, we have abundant authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory and, if by the legislature habitually disregarded, it seems to us that there is all the more urgent necessity that the courts should enforce it and it also seems to us that there are few evils which can be afflicted by strict adherence to the law so great as that which is done by an habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed." ..... We believe this to be the sound and only safe doctrine. It seems to us that the rule which gives to the courts and other departments of the government a discretionary power to treat a constitutional provision as directory, and to obey it or not, at their pleasure is fraught with great danger to the government. We can conceive of no greater dangers to constitutional government, and to the rights and liberties of the people, than the doctrine that permits a less, latitudinous, discretionary construction of the organic law. "We are taught by the constitution itself that those who administer this government are divided into three coordinate departments; each of these can only act within its own limited sphere, and they, respectively, are the servants of the sovereign power of the people. There is no power above the people. There is no discretionary power granted in the constitution for either of the departments, nor for all of them united to exercise a discretionary expansion and flexible power against its rigid limitations, even though such limitations were imposed by improvident jealousy. If abuse exists by reason of defects in the constitution, present or prospective, the true source of authority, the people, have the power, and doubtless the wisdom and patriotism, to correct them; and this, in the American idea is the safe and only depository ..." 15 Mont. at 12-14, 37 P. at 842. The Supreme Court in Tooker added, ... We therefore have this situation: The method for amendment is provided by the solemnity of the constitutional enactment, and another method of amendment has been attempted to be invoked. We can see no other result but that such attempt is nugatory, and of absolutely no avail... .

15 Mont. at 18, 37 P. at 844.

A second case of constitutional import is Durfee v. Harper (1899), 22 Mont. 354, 56 P. 582. It is an interesting case because of its background. The action began on a petition by Durfee to require the respondent to transfer to a corporation certain shares of stock. Before the Supreme Court got to the main case, however, there was an unusual development. Chief Justice Brantley had represented one of the parties when he was a county attorney in Deer Lodge County and was thus disqualified from sitting on the Supreme Court case. The Supreme Court, then consisting of three members, had called in Judge Frank Henry, from the Sixth Judicial District. The Hon. Wilbur F. Sanders, as amicus, brought to the attention of the Court that it was possible that Judge Henry could not properly sit for the reason that the amendment of the constitution allowing the Supreme Court to call in a district judge to sit was probably unconstitutional.

It appears that the amendment to the Constitution permitting the Supreme Court to call in a district judge to sit had been approved by the voters upon referendum from the Fifth Legislative Assembly. The 1889 Constitution required that an amendment proposed by the legislature should be enrolled in full on the journals of the legislature. This had not been done, and apparently Judge Sanders argued that the lack of such enrollment made the constitutional amendment nugatory. The two judges then constituting the Supreme Court agreed and a two judge court decided the constitutional issue. They looked to State ex rel. Tooker above and other cases. Our Supreme Court declared: "... This distinction between the authority of the legislature in relation to enacting laws and proposing changes in the constitution must not be overlooked, for it emphasizes in an unmistakable way the measure of power which can be exercised effectively by delegated representatives, and that which alone can be exercised by the people in their sovereignty. The legislative assembly can no more subtract from the various steps specified in the organic act to be taken by itself antecedent to submitting amendments to the constitution, than it can amend the constitution without such submission to the people. It may attempt to propose such amendments to the full number allowed, but it is powerless to make its proposals operative to accomplish the fact of an amendment, without first exercising and pursuing its authority in the single mode of proceeding which the people have directly prescribed in all instances where the legislature passes a `proposed amendment at all. No argument is needed to uphold the rule that the provisions of our constitution are mandatory and prohibitory, unless by express words declared to be otherwise. The constitution so declares, and the reasoning of Justice DeWitt in State v. Tooker, 15 Mont. 8, 37 Pac. 840, is conclusive upon that proposition. That decision too is to a great extent controlling of the point under examination, as it was there decided that, where the mode by which an amendment to be made to the constitution is clearly pointed out by the constitution itself, such mode is a substantial and essential part of the instrument itself, to be regarded by the legislature as exclusive, and as not permitting any other mode or form to be observed.

.....

We conclude therefore that the failure to enter on the legislative journals the proposed amendment under which Judge Henry was invited to sit was a disobedience of the constitution itself, and that our duty in expounding the supreme law compels us to decide that the proposed amendment never was proposed as required, and therefore never ought to have been submitted. It was a nullity before it reached the people and was not animated by them, because their own solemn commands empowering its proposal, and specifying the mode thereof, had been entirely ignored by the proponent.

22 Mont. at 362-364, 56 P. at 585.

The third case is Tipton v. Mitchell (1934), 97 Mont. 420, 35 P.2d 110. Two aspects of this case stand out: 1) The legislature attempted to cure the defect of not placing the constitutional amendment fully on its journals; 2) The Court rejected the idea of two earlier cases that substantial compliance was sufficient.

Tipton v. Mitchell involved a budget act which was proposed by the legislature for constitutional amendment. The proposed amendment had been passed by the legislature in the 22nd Legislative Assembly (1933) and Governor Erickson signed the proposed budget act. The proponents recognized the defect in failing to enroll the amendment in full in the journals and accordingly, Governor Cooney (who had succeeded the resigned Governor Erickson) called the 23rd Legislative Assembly into extraordinary session where attempt was made to cure the defect by recitations that the proposed amendment had been passed and was then set forth in full in the journals of the extraordinary session. When the case came to the Supreme Court, we said:

In Durfee v. Harper, 22 Mont. 354, 56 Pac. 582, 585, it appeared that the proposed amendment to the Constitution had not been entered in full on the respective journals of the two Houses of the Assembly, as required by section 9 of Article XIX of the Constitution. After a careful examination of all of the authorities in point, the court declared that the amendment was null and void. The learned Justice Hunt, who wrote the opinion, said: "An amendment to the constitution, like the constitution, obtains life by the direct power of the people. No other authority can be put above them, or act for them, in respect to effecting changes in their organic law." It was pointed out that while the legislators are supreme in the exercise of the constitutional lawmaking power, in respect to the Constitution they are by that instrument's terms proposers only of amendments. "The legislative assembly can no more subtract from the various steps specified in the Organic Act to be taken by itself antecedent to submitting amendments to the constitution, than can it amend the constitution without such submission to the people." The court declared that in expounding the supreme law it was compelled to decide the proposed amendment never was proposed as required, and therefore never ought to have been submitted. "It was a nullity before it reached the people, and was not animated by them, because their own solemn commands empowering its proposal, and specifying the mode thereof, had been entirely ignored by the proponent." (Emphasis added.)

97 Mont. at 429, 430, 35 P.2d at 114.

Then the court in Tipton went on to discuss two earlier cases where it had been held that substantial, rather than literal compliance with the constitution was enough. Those cases were State ex rel. Hay v. Alderson (1914), 49 Mont. 387, 142 P. 210, and the Tax Commission Case (Martien v. Porter) (1923), 68 Mont. 450, 219 P. 817. This Court rejected substantial compliance saying:

All members of the court as now constituted are not satisfied with the majority opinion in the Tax Commission Case. Did not the court say in Durfee v. Harper, supra: "Thus, the proposition comes back to the statement that from the people, as a source, alone flows the delegated power of the legislature to even propose amendments to those `unvarying rules' by which `alike the government and the governed' are controlled, and where those rules adopted by the people are part of their constitution, and lay down how this power may be exercised by the legislature, there is no discretion in that body to ignore the commands of the fundamental authority, or override its limitations in great or small matters; and this principle holds good, not only for the legislative, but, so far as applicable, for the judicial and executive, departments of the government as well?" Is it possible, where a Constitution is involved, to declare a provision mandatory at one time and the same provision directory at another? (Emphasis added.)

97 Mont. at 431, 37 P.2d at 114.

The faulty compliance with the constitutional requirement was enough to void the proposal and the court in Tipton v. Mitchell stopped the question from being presented to the people for their vote at the upcoming election.

The foregoing cases are determinative. The present Montana Constitution requires "the amendment" to be published as provided by law. The legislature provided that "a summary of the amendment" would suffice. Section 13-27-311, MCA. The statute, if permitted, would itself constitute an amendment to the Constitution insofar as initiatives are concerned and should not be allowed. Any initiative amendment adopted in that manner is, of course, void.

The problem with the error in the voter information pamphlet is not so much that voters might have been misled, although that possibility certainly exists, and the error is significant. The greater problem is the right of the electorate, and responsible officials after the election, to know the exact language upon which the vote was taken. If there is any absolute in this matter, it is that the State Constitution must be expressed in words. Those words must reflect the considered will of the people. The State Constitution cannot be amended by fugitive forms.

Yet the argument is made that because of the widespread availability of radio and television and the use of public panels and the like, that the material flaw in presenting the language of this amendment to the voters should be overlooked on the grounds that there is a reasonable probability that a substantial part of the electorate knew what they were voting upon.

To adopt such an argument is to say that the Constitution may be amended merely by an undefined idea, an idea as vague as "to cure abuses in the courts," as argued by the proponents in the voter information pamphlet. But only words express ideas, and ideas must be translated to words or ideas cannot be communicated. Thus one person's idea of "tort reform" may be another person's idea of "tort irresponsibility." It is only when express words plain in their meaning outline ideas in clear sharp detail that human minds can grasp the ideas, and their legal consequences. Reasonable minds can and do differ as to the legal consequences of "no person shall be deprived of legal redress for injury" and "no person shall be deprived of this full legal redress for injury." That difference is the reason for CI-30 in the first place.

These examples are enough to prove that words, or the lack of them, do make a difference. We cannot blind ourselves to this difference, and hold that words given to electors to vote upon are not to be included in the results of their vote. The words in CI-30 certified by the Board of State Canvassers omit the words "this full" given to the electors for their vote. The certified version of CI-30 is therefore illegal and void, because it does not express the considered will of the voting public. The certified language of CI-30 was never submitted for a vote in the manner expressly required by the State Constitution.

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 amendment prior to its submission. This case is an example of that. The requirement for publication in full of the true words of an amendment proposed by initiative is necessary so that the electors can make an intelligent choice.

The 1972 convention debate (it was not so much a debate as a discussion) on the subject of publication of amendments by initiative is found in Vol. III, beginning at page 508 and extending to 514. The discussion arises on the motion of Delegate Blend to amend the words "at least one newspaper in each county" and to insert instead "the communications media." The discussion that follows indicates the concern of the delegates that technological developments following 1972 might be such that publication by other means than by newspapers would become feasible. In adopting the present language of Art. XIV, § 9, the Constitutional Convention left open to the legislature to provide for publication in the newsprint and in the broadcast media, but nowhere do the constitutional framers discuss publishing less than the full amendment.

We have examined the history of other constitutional amendments that have occurred since 1972. It is fortunate that CI-30 is the only constitutional initiative which is affected by this decision.

It is noteworthy that paragraph 3 of CI-30 would take away from the judiciary the power to pass upon the validity of legislative enactments establishing, limiting, modifying or abolishing remedies or damages. The Attorney General's statement of purpose fails to note this significant transfer of judicial power, a point which any "summary" of CI-30 should have included for publication. We note this point as further demonstration that the publication of the Attorney General's statement of purpose was inadequate to inform the voter of the effect of CI-30, if adopted.

Therefore we determine as a declaratory judgment that the proposed adoption of amendment to Art. II, Sec. 16 of the 1972 Montana Constitution through CI-30 has failed because of material constitutional defects in the manner it was presented to the electors for a vote. It is therefore nugatory and of no effect.

HARRISON and HUNT, JJ., and JOSEPH B. GARY, District Judge,* concur.

WEBER, Justice, dissenting as follows:

The opinion of the majority, while perhaps defensible on technical legal grounds, fails completely to respect the will of the voters of Montana. The plaintiffs have not shown that the voters were materially misled under any of the issues raised here. I conclude that upholding the people's vote is at least as defensible as the majority's opinion, on legal grounds. It is decisively preferable as an expression of this Court's role in the initiative process.

I first set forth some basic principles on amendment of our Montana Constitution by the initiative process. These basic principles are applicable to all issues before the Court. In their 1972 Constitution, the people of Montana reserved all political power to themselves. Mont. Const. Art. II § 1 states:

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.

By the 1972 Constitution the people of Montana have retained the exclusive right of governing themselves and have also retained the right to alter the Constitution. Mont. Const. Art. II § 2 states:

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.

By a provision which was not included in the 1889 Constitution, the 1972 Constitution provides that the people may propose constitutional amendments by initiative, stating in Mont. Const. Art. XIV § 9:

(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 a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise.

These provisions emphasize the desire of the people to be able to amend the Constitution by initiative without being required to go through any of the three branches of government, and in particular the judicial branch. In considering the present initiative, this Court should carefully honor the basic rights retained by Montana's citizens. These rights include the right of the people to alter or abolish the 1972 Constitution — a reserved power of unlimited breadth. The present initiative was approved by a clear majority of the electorate. This amendment by initiative vote of the people should be invalidated only if we conclude there is a reasonable probability that a substantial part of the electorate were misled in casting their votes in favor of the Initiative. In considering the issues I also keep in mind that we now have multi-faceted means of communication with the electorate, which include not only publication in newspapers, but also both television and radio, all of which were extensively used in the months preceeding the vote on the present Initiative.

The majority has invalidated the Initiative ballot on the basis of two errors. The first is an error in printing the text of the Initiative in the 1986 Voter Information Pamphlets. Sections 13-27-401 through 410, MCA, set forth the requirement and procedure for the secretary of state to prepare and distribute to Montana voters information pamphlets on ballot issues at the next election. These include requirements that for each ballot issue the pamphlets must contain the title, fiscal statement, and complete text, as well as the form in which the issue will appear on the ballot, and arguments and rebuttal arguments submitted by proponents and opponents. As the majority has pointed out, there was an error in the printing of the full text of CI-30 in the voter information pamphlets prepared for the 1986 general election. The error was in subsection (2), where the words "this full" were printed this full, instead of this full. The voter information pamphlet does not explain what is meant by the underlining and interlineation. However, underlining is commonly used to designate material which is being added; interlineating to designate material deleted. The error in printing indicates that the amendment adds, rather than deletes, the words "this full" from Mont. Const. Art. II, § 16.

The error was discovered on October 23, 1986. The Secretary of State points out that this was after his office had sent the pamphlets to the counties and the counties had distributed the pamphlets to the voters. The Secretary of State took what he argues was the only possible corrective action at that late date: he issued a news release which explained that an error had occurred in the voter information pamphlets, and described that error. Nevertheless, the majority holds that the error misled the voters on a critical aspect of CI-30.

The text of the Initiative as misprinted in the voter information pamphlets was only a part of the information contained in the same pamphlets. The pamphlets also contained extensive printed arguments by both proponents and opponents of the measure. A voter reading the pamphlet would have understood that the opponents were opposing the elimination of the words "this full" from the constitutional provision. The majority also fails to consider the publication by the Secretary of State describing the error in the voter pamphlets, and the wide discussion of this Initiative in the printed media, the radio and television, as well as the debate as reported in the media. Without question this Initiative generated a widespread media discussion which continued for months prior to the election date.

The plaintiffs chose to bring this declaratory judgment action in this Court rather than proceeding in district court. As a result, neither side has had the opportunity to produce evidence of the effect of the error upon the vote of the electorate. Plaintiffs contend that because the proponents cannot prove that the error had no effect on the vote, the election must be invalidated. Since the plaintiffs chose this forum where no such evidence could be presented, I have some difficulty attaching validity to this contention.

I have attempted to consider all of the foregoing factors, and to keep in mind carefully the rights of the people to amend their Constitution by the initiative process. I recognize that the error in the voter information pamphlets is significant and presents a difficult issue. However, based upon the nature of the error and the wide availability of accurate information regarding the Initiative through all forms of media, I conclude that the error is not a proper basis for invalidating the election. I cannot conclude there is a reasonable probability that a substantial part of the electorate was misled by the error. In the absence of evidence to the contrary, I conclude that the electorate of Montana has the capacity to analyze the issue raised by the Initiative and to reach an accurate decision on the vote to be cast notwithstanding the error in the voter information pamphlet. I would hold that the error in printing the text did not invalidate the election.

The second reason used by the majority to invalidate the election on CI-30 is publication in each county of summary language instead of the entire text of the Initiative. Article XIV § 9(2) of the Montana Constitution provides, in relevant part:

... 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.

The majority holds that this constitutional provision requires the Secretary of State to publish the full text of the amendment. The legislature obviously disagreed, because it adopted the following statutory provisions for publication in § 13-27-311(2), MCA:

The secretary of state may arrange for newspaper, radio, or television publication of proposed constitutional amendments in each county. A summary of the amendment as provided by the attorney general, as described in 13-27-312 or 13-27-315, would suffice for the publication required by this section and should be made at least twice each month for 2 months previous to the election.

The majority holds that this statute is unconstitutional because it does not require the full text of the amendment to be published and instead allows a summary of the amendment as provided by the Attorney General. It has not been explained why this issue was not raised in the plaintiffs' initial appearance before this Court in October 1986.

The official transcript of Montana's 1972 Constitutional Convention (Con Con) does not answer the question of intent conclusively; there is no statement of the collective view of the delegates. The discussion of this section centered around whether publication must be in newspapers or whether it could be through other media, such as television. In amending the section to allow publication other than in newspapers, the word "full" was deleted from the text of the section before "amendment shall be published." The Con Con transcript contains no explanation of that deletion.

The majority cites State v. Tooker (1894), 15 Mont. 8, 37 P. 840, as controlling on this issue. In that case, a constitutional amendment was published for two weeks before the election, instead of "published in full in at least one newspaper in each county (if such there be), for three months previous to the next general election ..." as required by Montana's 1889 Constitution, Art. 19 § 9. This Court stated that:

The method for amendment is provided by the solemnity of the constitutional enactment, and another method of amendment has been attempted to be invoked. We can see no other result but that such attempt is nugatory, and of absolutely no avail.

Tooker, 37 P. at 844.

It is important to note that the 1889 Constitution required publication in full of the constitutional amendment for three months, while publication in Tooker was only made for two weeks. The 1889 constitutional provision sets forth the considered judgment of the people that a century ago it was essential to publish a constitutional amendment in full and for a period of three months previous to an election. That was a clearly understandable and reasonable requirement during a period of time in which newspaper publication was the only reasonable means of publication other than word of mouth. The present age of mass electronic communication presents an entirely different situation. The present constitutional provision does not require the amendment to be published "in full". In addition, the 1972 constitutional provision provides that the amendment is to be published "as provided by law". Clearly the people recognized by this provision that it was appropriate for the legislature to provide the manner of publication. The legislature did so in § 13-27-311, MCA, and provided that the summary of the amendment would suffice. I therefore conclude that Tooker is not controlling in the present case.

After having studied the text of Mont. Const. Art. XIV § 9(2) and the transcript of the discussion at the Con Con, I conclude that allowing publication of the statement of purpose instead of the text of the Initiative does not exceed the discretion given to the legislature in providing for publication of proposed amendments. I would therefore conclude that § 13-27-311(2), MCA, is not unconstitutional. I find no indication that a substantial part of the electorate was misled, and conclude that publication of the statement of purpose instead of the text of the Initiative is not cause to void the election.

The majority has not addressed the three other issues which the plaintiffs raised. I will, therefore, discuss them only briefly. First, plaintiffs argue that the Initiative is unconstitutional because it proposes more than one amendment in a single ballot. That argument fails under the established test of whether the amendment effects and carries out one general object or purpose connected with one subject. State v. Cooney (1924), 70 Mont. 355, 366, 225 P. 1007, 1011. Here, the Initiative alters only one paragraph of our Constitution and covers one general subject. To require that each word or phrase changed in this Initiative be submitted separately to the voters would be an exultation of form over substance.

The plaintiffs also argue that the Initiative would violate the doctrine of separation of powers by transferring judicial power to the legislature. Mont. Const. Art. III § 1 prohibits one branch of government from exercising any power belonging to one of the other branches except as the Constitution permits. There is no prohibition of the people shifting a power belonging to one branch to another branch. I conclude that the Initiative does not violate the constitutional provision on separation of powers.

Finally, plaintiffs argue that the Initiative is unlawful or unconstitutional because the Attorney General's statements of purpose and implication are untrue, misleading, and prejudicial. The standard of review of the adequacy of the statements was set forth in State ex rel. Wenzel v. Murray (1978), 178 Mont. 441, 448, 585 P.2d 633, 637-38:

... as long as the Attorney General in his explanatory statement uses "ordinary plain language," explains the general purpose of the issues submitted, in language that is true and impartial, and not argumentative or likely to create prejudice either for or against the issue, he has followed the law . .. His discretion as to the choice of language ... is entirely his.

Here, the Attorney General was faced with an amendment to a constitutional provision with uncertain legal implications, stemming from this Court's non-unanimous decisions in White and Pfost. He was limited, under § 13-27-312, MCA, to a statement of 100 words to explain the purpose of the measure and 25 words for the statement of implication. Such statements cannot capture all ramifications of the Initiative. The Initiative itself is short enough to be easily read, giving the statements a more limited function than they would have with a longer initiative. Balancing all of these factors, I would conclude that the Attorney General's statements explain the general purpose of the amendment in ordinary plain language in a sufficient manner to meet the requirements of § 13-27-312(4), MCA, and to maintain the neutrality of the government.

Because I conclude that none of the issues raised by plaintiffs require that the results of the November 1986 election on CI-30 be declared void, I would deny the application for declaratory judgment.

TURNAGE, C.J., and GULBRANDSON, J., concur in the foregoing dissent.

OPINION AND ORDER ON RECONSIDERATION

SHEEHY, Justice.

Attorney General Mike Greely has filed a petition for rehearing following the issuance of our original opinion on May 22, 1987. The real party in interest, Montana Liability Coalition, has filed a petition for reconsideration, which we regard as a petition for rehearing. Jim Waltermire, Secretary of State, has filed a petition for clarification. Such a petition is not provided for in our rules, but we will regard it as a petition for rehearing. In any case, each petition is by the Court DENIED.

The petition of the Attorney General contends that the case of Durfee v. Harper (1899), 22 Mont. 354, 56 P. 585 was overruled by the 1972 Constitutional Convention; that publication of the "full text" of the proposed Initiative Amendment of the Constitution is not required by the State Constitution; that voiding the Initiative Amendment CI-30 is too harsh; and that the Court should fashion a relief such as requiring another election within 75 days under § 13-35-107, MCA, or certifying the issue for submission to the electorate at the next general election in 1988.

The petition of the real party in interest, Montana Liability Coalition, contends that our decision overturns the Initiative Amendment on a "slight procedural irregularity"; that our decision has the incidental effect of voiding all amendments to the Constitution (by initiative or referendum) since 1977; that the proceedings in the 1972 Constitutional Convention express the intent that full text publication of initiative amendments is not required; and that substantial compliance with statutory directions for publication and proposed initiative amendments is enough.

The Secretary of State's petition asks us to determine whether we should mandate a new election on the Initiative under § 13-35-107, MCA; and whether our decision now requires that any future constitutional amendment, by referendum or by initiative be printed in full on the ballot, as distinguished from the voter information pamphlet.

The relators have filed a response, answering in one instrument the contentions of each of the petitioners for rehearing. In their response, Relators contend that none of the petitions meet the requirements of Rule 34, M.R.App.Civ.P.; that it is inarguable that the language of the Initiative Amendment to Art. II, § 16, 1972 Mont. Const., filed by the Secretary of State after the election is not the same language submitted to the electors for their vote on November 4, 1986; that this Court pointed out in its original majority opinion that no other amendment to the Constitution was affected by the decision herein; that the constitutional provision requiring printing the full text of a proposed initiative amendment in the media does not require publishing the full text of the proposed amendment on the face of the certified ballots; that the doctrine of strict compliance expressed in Durfee continues to be the law in this state; and that asking for a further election under § 13-27-501, MCA, or certifying a ballot for the general election of 1988 is asking for an advisory opinion on issues never raised, briefed or argued.

A petition for rehearing, to be sufficient, must, under Rule 34, M.R.App.Civ.P., be presented upon the following grounds and none other: that some fact material to the decision or some question decisive of the case submitted to counsel, was overlooked by this Court, or that the decision is in conflict with an expressed statute or controlling decision to which the attention of this Court was not directed. On their faces, the petitions do not meet that criteria. The majority opinion expressly sets out that it adopts the doctrines espoused in Durfee and like cases regarding constitutional amendments; that the true text of the proposed initiative amendment should be found in the Voter Information Pamphlet promulgated by the Secretary of State before the election; that publication by the Secretary of State of the full text of the proposed amendment is required under Art. XIV, § 9 of our Constitution; and that publication of the Attorney General's summary of the amendment (§ 13-27-312, MCA) expressed in 100 words or less did not in this instance meet the requirements for publication in the media. Yet, out of a decent respect for the concerns of the petitioners, which we take to be honestly expressed, we will discuss those few issues not glaringly found in the majority opinion itself.

Before we start, we assert one unassailable fact: Apart from the several thousand persons who may have seen the full text of the proposed amendment when they signed the initiative petitions and those few dozens of people who were intimately involved in these proceedings, the great majority of voters never saw the full text of the amendment CI-30 which the Secretary of State eventually certified had been adopted by their vote. What they did see in the Voter Information Pamphlet, their only source of information, was a text which completely reversed what the petitions for initiative amendment proposed. There is far more here than a slight "procedural irregularity" or a mere "cumbersome detail." The text in the Voter Information Pamphlet was as different from the text certified by the Secretary of State as yes from no, white from black or good from bad.

We turn first to the contention that the 1972 Constitutional Convention "overruled" Durfee v. Harper, supra.

The statement relied on by the Coalition regarding Durfee is found in the Constitutional Convention Proceedings regarding what is now Art. XIV, § 8, Amendment by Legislative Referendum. The Convention's Committee on Constitutional Revision had proposed two methods of amendment by the legislature, one by referendum, and one by the legislature itself. Eventually, the Convention eliminated amendment by the legislature itself. In the discussion respecting amendments by referenda, the Committee Report stated:

... The first procedure ... is analogous to the method of amending the Constitution in the present Constitution's, Art. XIX, § 9. The proposed section, however, does not go into the cumbersome procedural detail contained in the present Constitution. This cumbersome detail has been a burden to often-popular Constitutional change. In one instance the Supreme Court of Montana voided a proposed constitutional amendment for the slight procedural irregularity of failure to follow the Constitutional directive in Art. XIX, Section 9 and enter the proposed amendment in full in the journals of both houses [Durfee v. Harper, 22 Mont. 354, 56 P. 585 (1899)].

1972 Montana Constitutional Convention, Vol. 1, at 361, 362.

The same committee report also contained the original proposal for amendment by initiative, the constitutional section with which we are concerned in this case. When speaking of the original proposal that 15% of the voters must sign such a petition for initiative amendment, the report said: ... the proposed article creates a new power for the people of Montana, the right to initiate Constitutional amendments. The committee feels that this is an inherent right in a body politic whose Constitution is to be the embodiment of the will of the people. The committee's proposal sets up the exact machinery for expressing this will through establishment of the petition requirements and the administration process. The 15 percent petition requirement and the geographical requirement are high, but the committee feels that it is not unreasonable to demand strict standards when dealing with something as fundamental and important as Constitutional change. Although the standard is high, the committee does not feel it is so high that pressing popular and needed Constitutional reforms could not be initiated by the people. The standard, the committee feels, will operate to check erratic whimsy.

1972 Montana Constitutional Convention, Vol. 1, at 363.

The initiative amendment proposal eventually was considered by the Convention sitting as a committee of the whole. It was in Committee of the Whole that the discussion occurred regarding whether the publication by the Secretary of State of proposed amendments by initiative should be solely in newspapers, or whether electronic media could be used. No definitive agreement was reached by the Convention on this question, but what is surprising is the report of the Committee of the Whole which was adopted by the Convention in the full committee report. Action of the Committee of the Whole on the initiative proposal was reported and adopted by the full Convention in this fashion:

... that Section 11 [the initiative proposal] be amended by striking the following: "in such event the secretary of state shall cause the amendment or amendments to be published in full in at least one newspaper in each county in which a newspaper is published, twice each month for the two months previous to the next general election for members to the legislative assembly;" that Section 11 be adopted as amended; ...

1972 Montana Constitutional Convention, Vol. III, at 534.

The whole article with respect to constitutional revision was then referred by the convention to the Committee on Style and Drafting. When the proposal for amendment by initiative emerged from the Committee on Style and Drafting, the provision for publication by the Secretary of State, exactly as it now appears, had been reinserted. (1972 Montana Constitutional Convention, Vol. II, at 852, Report No. 2., February 26, 1972.) Thereafter the provisions sailed through Committee of the Whole (Vol. IV, at 1194) and through final vote (Vol. VI, at 1918-1919) in the same form.

The record of the Constitutional Convention proceedings therefore supports our statement in the majority opinion that "nowhere do the constitutional framers discuss publishing less than the full amendment." Indeed, the minority agreed, saying "that the official transcript of Montana's 1972 Constitutional Convention does not answer the question of intent conclusively; there is no statement of the collective view of the delegates." The foregoing recitation respecting the proceedings in the Constitutional Convention is burdensome but is made necessary by petitioner's contentions that somehow the convention had "overruled" Durfee. The Convention proceedings simply do not support that contention.

Next we turn to the contention of the relators that the majority opinion, by requiring publication of the full text of initiative proposals to amend the Constitution, have incidentally voided all amendments to the Constitutions since 1977, including a) the drinking age of adults (1978); b) optional local government review (1978); c) confidentiality of judicial documents in the Judicial Standards Commission (1950); d) a poll of the legislators to overthrow a gubernatorial veto (1982); e) discipline of judges for breach of canons of judicial ethics (1984); f) congressional redistricting (1984); and g) elimination of the study of the Salary Commission (1986).

This contention has caught the fancy of some observers and a few editorial writers who see all around us bogey-men threatening the structure of state government.

A short answer to this contention would be that an action to void an election must be commenced within 1 year of the date of the election in question (§ 13-35-107, MCA). A short answer will not suffice for what needs to be explained here.

In our majority opinion, we stated that we had examined the history of other constitutional amendments that have occurred since 1972 and that our decision in this case had no effect on such constitutional amendments.

The provisions of § 13-27-311, MCA, which purport to permit the Secretary of State to publish a "summary of the amendment as provided by the Attorney General" in advance of the election on an initiative amendment proposal came into the statute by way of the amendment in 1979 (Ch. 571, Laws of Montana (1979)). Before that time, § 13-27-311 required that the text of any proposed constitutional amendment, whether by initiative or by referendum, be published by the Secretary of State in at least one newspaper of general circulation in each county, twice each month for two months previous to the election. Therefore, if any constitutional amendment adopted prior to the effective date of Ch. 571, Laws of Montana (1979), had not been properly published, the defect would not arise from the majority opinion but rather from the failure of the Secretary of State to follow the law with respect to those amendments.

Since 1979, the only amendment to the Constitution proposed by means of an initiative which is affected by our decision is the one before us in this case. Another initiative proposal to amend the State Constitution also failed to muster a majority vote in 1986.

Our decision has no effect on amendments to the Constitution that may have been adopted through referendum from the legislature since 1979. As we pointed out in the majority opinion, there is no constitutional provision for publication by the Secretary of State or any other officer relating to amendments by legislative referendum. Art. XIV, § 8, 1972 Mont. Const. The majority opinion here can have no affect on such amendments. All of the amendments which the relators say are threatened by our opinion were legislatively-inspired and do not have their source in initiative. There is, therefore, no substance to the contention that we have incidentally voided other constitutional amendments.

But, the Secretary of State and the relators contend, our majority decision means not only that the full text of an initiative proposal for constitutional amendment must be published, but it also means that the full text of the initiative proposal must be stated on the face of the certified ballot given to each voter. Such a contention is an extrapolation of logic stretched to the fullest extent. Nowhere in the majority Opinion is there any indication that printing the full text of an initiative proposal on the face of the ballot is required nor was such a contention raised in any pleading or brief before the Court until the petition for rehearing. The majority Opinion has confined itself to the provisions of Art. XIV, § 9, that "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 statewide election." By no means can consideration of that language be stretched to determine what should be on the face of the ballot. In point of fact, however, the majority opinion has given tacit approval to publishing the full text of the initiative proposal in the voter information pamphlet instead of the ballot, provided that the full text is there correctly stated.

Finally, we come to the contentions presented for the first time to us in the petitions for rehearing, that we should order a new election under § 13-35-107, MCA, or as the Attorney General suggests, certify the issue for the 1988 general election ballot.

There is a grave problem as to whether § 13-35-107, MCA, could apply to this type of case, especially where the officials through whom the errors occurred seem reluctant to admit any fault.1 In any event, § 13-35-107 is discretionary and the majority can see no equity in requiring the state to incur the costs of a special statewide election within 75 days of our majority opinion. It is virtually certain that it would be impossible in that time to provide for the necessary publications in newspapers or other media and the other election requirements that would have to be followed. The suggestion defeats itself. As for certifying the issue over for the 1988 ballot, we find no statutory authority for that step and it would stretch our inherent power to an unwarranted extent. Each of those suggestions is therefore refused.

For the foregoing reasons, the petitions for rehearing, reconsideration, and clarification are each DENIED.

HARRISON and HUNT, JJ., and JOSEPH B. GARY, District Judge*, concur.

WEBER, Justice, dissents from the opinion and order on reconsideration.

The majority contends that an unassailable fact is that the great majority of voters never saw the correct text of the amendment CI-30 as finally certified. The error in the voter information pamphlet was that the words "this full" were printed this full, instead of this full. I emphasize that the pamphlet itself did not explain what is meant by underlining as compared to interlineation. While I agree that underlining commonly is used to designate material being added and interlineation to designate material being deleted, I suggest that the record does not demonstrate that this is knowledge which can be presumed to be held by all of the voters. The pamphlet itself contained the extensive printed arguments by the opponents to the measure which clearly set forth their opposition to the elimination of the words "this full" from the constitutional provision. I question that anyone who actually read the pamphlet would have been misled as to the positions of the opponents and the supporters of the amendment. The majority does not consider the publication by the Secretary of State which described the error in the voter pamphlets and was contained in a news release published throughout Montana. In addition, the majority does not consider the wide discussion of the Initiative in the printed media, the radio and the television, as well as the debate which was reported in the media. I conclude that the pamphlet gave the accurate information necessary for each voter to conclude whether to vote for or against the amendment. Nothing more was required. I conclude that there is no real basis for the declaration of unconstitutionality because of the pamphlet printing error.

The majority states that the record of the Constitutional Convention supports its statement that "nowhere do the constitutional framers discuss publishing less than the full amendment." It is true that the record of discussions by the delegates does not answer the question of this intention. However, I believe that the sections of the Constitution speak for themselves. Following is the full text of Art. XIV, § 8 and § 9:

Section 8. Amendment by legislative referendum. Amendments to this constitution may be proposed by any member of the legislature. 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. 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 months 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 a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise. (Emphasis supplied.)

The case held to be controlling by the majority, State ex rel. Woods v. Tooker (1894), 15 Mont. 8, 37 P. 840, pointed out that the 1889 Constitution required publication in full for three months, and publication in Tooker was made for only two weeks. In view of that constitutional requirement it was reasonable for the Court to reach the decision it did in Tooker. In contrast, § 9(2) provides that the secretary of state shall cause the amendment to be published as provided by law. It is significant that the present Constitution does not include the words "in full" which were present in the 1889 Constitution and that in addition, the constitutional provision now requires publication as provided by law. Section 9(1) provides that the people may propose constitutional amendments by initiative and then states that petitions including the full text of the proposed amendment shall be signed by the electors. This demonstrates the ability of the delegates in the Constitutional Convention to clearly describe when full text is to be used. Those words are omitted from both paragraphs (2) and (3) of § 9 as well as from § 8. It is not necessary to read any Constitutional Convention proceedings to determine intent. The intent seems quite clear from § 9(2) itself. There is no requirement for publication "in full" in our present Constitution.

I conclude that the Montana Liability Coalition (Coalition) has presented a strong argument with regard to the effect of the majority opinion. In substance, the Coalition questions whether the definition of "the amendment" as meaning "the full text of the amendment" for § 9(2) of our Constitution can also be applied to § 8. In § 8 the provision for submitting to the electorate an amendment proposed by the legislature itself is that "the proposed amendment" shall be submitted to the electors. In a similar manner, § 9(3) provides that so far as submitting the initiative to vote is concerned, "the proposed amendment" shall be submitted to the electors. In analyzing § 9(2) of the Constitution, the majority concludes that the words "the amendment" mean that the full text of the amendment must be published. The majority fails to explain why the full text should be published while adjacent paragraphs should be construed to require only a summary. The Coalition argues that the same logic as used by the majority can be applied to § 8, raising a question as to referendums because in no instance was the proposed amendment submitted in full to the electors. Instead only a summary was used on the ballot. Similarly, under § 9(3), the proposed amendments were not submitted in full to the qualified electors but were submitted in summary form only. I conclude that the Coalition has raised a significant question which follows from the majority interpretation of our Constitution. The purpose of publication and printing on the ballot is to provide adequate information to Montana voters. That purpose is not fulfilled by the fact that members of the legislature have considered the matter. I conclude that it can be argued that the conclusion of the majority could be applied to both § 8 and § 9(3) of the Constitution, requiring invalidation of referendum and initiative measures where the proposed amendment was not set forth in full in the ballot.

The majority has stated that § 13-35-107, MCA, sets forth a one-year statute of limitations on actions to void an election ballot. I am not certain that the provision could be applied to a constitutional challenge.

For the foregoing reasons I would grant the petitions for rehearing and reconsideration.

TURNAGE, C.J., and GULBRANDSON, J., concur in the foregoing dissent.

FootNotes


* Sitting for MORRISON, J.
1. On October 29, 1986, an affidavit of the Bozeman Chronicle revealed that the Secretary of State had failed to cause any publication of the proposed amendment, either of the Attorney General's summary or the full text, in Gallatin County. That county had 28,357 voters of whom 18,582 voted. Votes for CI-30 were 9,735, against 8,046 in Gallatin County. This disputable result was certified to the Secretary of State by the county election officials. In spite of his record of nonfeasance on CI-30, the Secretary of State has persisted in the media in denouncing the decision of the majority as the work of "liberals" and "political" members of the court, and has accepted no responsibility for the fiasco.
* Sitting for MORRISON, Former J.

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