Burger v. Judge, Civ. No. 2284.

• Decision Date: 03 December 1973
• Docket Number: Civ. No. 2284.
• Citation: 364 F. Supp. 504
• Parties: Stanley C. BURGER, and Earl Aquila Garrettson, Jr., Plaintiffs, v. Thomas L. JUDGE, as Governor of the State of Montana, et al., Defendants.
• Court: U.S. District Court — District of Montana

364 F. Supp. 504

Stanley C. BURGER, and Earl Aquila Garrettson, Jr., Plaintiffs, v. Thomas L. JUDGE, as Governor of the State of Montana, et al., Defendants.

Civ. No. 2284.

United States District Court, D. Montana, Helena Division.

July 11, 1973.

Judgment Affirmed December 3, 1973.

Morrow, Nash & Sedivy, Bozeman, Mont., for plaintiffs.

Robert L. Woodahl, Atty. Gen., Lawrence D. Huss and John P. Connor, Jr., Deputy Attys. Gen., Jerome T. Loendorf, Special Asst. Atty. Gen., Helena, Mont. and Marshall Murray, Special Asst. Atty. Gen., Kalispell, Mont., for defendants.

Before BROWNING, Circuit Judge, and MURRAY and JAMESON, District Judges.

Judgment Affirmed December 3, 1973. See 94 S.Ct. 563.

OPINION

PER CURIAM:

Plaintiffs seek a declaratory judgment "that the proposed Constitution for the State of Montana was declared adopted in violation of the Fourteenth Amendment to the Constitution of the United States, Article IV, Section 4 of the Constitution of the United States, and the Voting Rights Act of 1965 (42 U.S.C. Section 1973) and is, therefore, void." The case was submitted to a three-judge court on an agreed statement of facts, answers to interrogatories, depositions and exhibits.

At a special election on June 6, 1972 the electors of Montana voted on four propositions submitted by a Constitutional Convention held pursuant to (1) the authority of Section 8 of Article XIX of the Montana Constitution;¹ (2) the vote of the electors of Montana at the general election on November 3, 1970; and (3) the Enabling Act of the Legislative Assembly of the State of Montana, Chapter 296, Session Laws of 1971, as amended by Chapter 1, Laws of First Extraordinary Session, 1971.²

The constitutional election ballot reads:

INSTRUCTIONS TO VOTERS: PLACE AN "X" IN THE BOXES WHICH EXPRESS YOUR PREFERENCES. THE FULL TEXT OF THE PROPOSED CONSTITUTION AND THE SEPARATE PROPOSITIONS IS AVAILABLE FOR INSPECTION AT YOUR POLLING PLACE. IF THE PROPOSED CONSTITUTION FAILS TO RECEIVE A MAJORITY OF THE VOTES CAST, ALTERNATE ISSUES ALSO FAIL.

OFFICIAL BALLOT PROPOSED CONSTITUTION PLEASE VOTE ON ALL FOUR ISSUES 1. (Vote for One) FOR the proposed Constitution. AGAINST the proposed Constitution. ------------------------------------------ | The proposed Constitution will include | | a bicameral (2 houses) legislature | | unless a majority of those voting in | | this election vote for a unicameral (1 | | house) legislature in Issue 2. | ------------------------------------------ 2. (Vote for One) 2A. FOR a unicameral (1 house) legislature. 2B. FOR a bicameral (2 houses) legislature. ---------------------------------------------- 3. (Vote for One) 3A. FOR allowing the people or the legislature to authorize gambling. 3B. AGAINST allowing the people or the legislature to authorize gambling. ----------------------------------------- 4. (Vote for One) 4A. FOR the death penalty. 4B. AGAINST the death penalty ----------------------------------------- 237,600 electors voted at the special election on June 6, 1972. Of this number 116,415 voted for the proposed constitution (Proposition 1) and 113,883 voted against it. A total of 7,302 persons voted neither for nor against the proposed constitution, but voted on one or more of the other propositions.³ Thereupon the Governor of Montana proclaimed that the proposed constitution had been approved and adopted.

Original proceedings were instituted in the Supreme Court of Montana by William F. Cashmore and Stanley C. Burger (one of the plaintiffs in this action), relators, against the Governor of Montana "seeking a declaratory judgment that the proposed 1972 Montana Constitution was not ratified and adopted because it was not `approved by a majority of the electors voting at the election' as required by Article XIX, Section 8 of the present Montana Constitution." State ex rel. Cashmore v. Anderson, Mont., 500 P.2d 921, 924. The Supreme Court of Montana in its opinion on August 18, 1972, held, inter alia:

"Accordingly, we hold that `approval by a majority of the electors voting at the election' as used in Article XIX, Section 8, of the Montana Constitution means approval by a majority of the total number of electors casting valid ballots on the question of approval or rejection of the proposed 1972 Montana Constitution. We hold that it does not refer to or include those electors who failed to express an opinion by a vote on that issue. The Secretary of State's certificate shows 116,415 votes in favor of the proposed constitution and 113,883 votes against the proposed constitution and no one contends these figures are incorrect. As these figures carry a presumption of correctness by statute, section 93-1301-7(15), R.C.M.1947, and as there is nothing to indicate otherwise, we hold that the proposed 1972 Montana Constitution was approved by the required majority and the Governor's proclamation thereof was correct." Id. at 929.⁴

A Petition for a Writ of Certiorari to the Supreme Court of the United States filed by Burger was denied without comment by an order entered February 20, 1973. This action followed.

Defendants contend, inter alia,⁵ that this action does not present a justiciable controversy and that in any event it is not a proper case for a three-judge court under 28 U.S.C. § 2281.⁶

Most nearly in point is Kohler v. Tugwell, 292 F.Supp. 978 (E.D.La.1968), aff'd, 393 U.S. 531, 89 S.Ct. 879, 21 L. Ed.2d 755 (1969), where plaintiff sought an injunction prohibiting any action under a state constitutional amendment on the ground that the designation of the amendment as it appeared on the ballot misled voters. Relying upon the holding in Reynolds v. Sims⁷ that "the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections", the court concluded that the question of whether the ballot was so misleading as to deprive the electors of their constitutional right to vote was a justiciable controversy. The three judges agreed that the Due Process Clause⁸ was applicable, and two of the three judges were of the opinion that the issue was also justiciable under the Guaranty Clause.⁹ The question of whether the controversy was properly before a three-judge court was not raised, and the court held that the electors had not been misled or deprived of any constitutional right by the manner in which the amendment was submitted.

In Watermeier v. Louisiana Stadium, 308 F.Supp. 273 (E.D.La.1969), aff'd, 398 U.S. 955, 90 S.Ct. 2172, 26 L.Ed.2d 539 (1970), it was expressly held that an action involving "an attack upon the constitutionality of the application, execution and operation of a state constitutional amendment" was properly before a three-judge court.

We conclude that this case is properly before a three-judge court.¹⁰ In the event we should be mistaken, Judge Jameson, to whom the case was assigned and who requested the designation of the three-judge court, has individually arrived at the same conclusion with respect to the merits of the controversy.¹¹

We turn now to the merits of the controversy. The parties have stipulated that the "terms `approval of the majority of the electors voting at the election', `electors' and `electors voting at the election' have been defined by the Montana Supreme Court in State ex rel. Cashmore v. Anderson, supra," and are "res judicata for the purposes of this cause of action". Plaintiffs rely upon the Montana court's interpretation "to prove that the representations made by Montana officials prior to the election, and on the Ballot, as to what effect an elector's voting decision would have, were actually wrong." They argue that 7,302 electors were "misled by the change of rules, after the election was over," were "disenfranchised by the misleading and erroneous information," and "that the Federal Constitution and law will protect them from such action."

In support of their contention that the 7,302 electors were misled, plaintiffs rely upon (1) the official ballot, quoted supra; (2) an official publication mailed to all voters; (3) a newspaper supplement, 197,500 copies of which were distributed by the 13 leading newspapers in the state; (4) an analysis prepared by the Montana Constitutional Convention Commission in 1971; (5) debate in the Constitutional Convention; and (6) Section 17(9) of Ch. 296, 1971 Session Laws, quoted supra in Note 2.

The plaintiff Burger voted against the proposed constitution. The plaintiff Garrettson was one of the 7,302 electors who did not vote on the constitution. (Proposition One). He testified in his deposition that he voted for a bicameral legislature, gambling, and the death penalty, and that he understood that if the proposed constitution failed "the alternate issues also fail." He failed to vote on the proposed constitution for two reasons: first, because he did not know enough "about the issues involved",¹² and second, because he felt that if he did not vote, "it was a vote against it." He had read the ballot and the newspaper supplement. Garrettson's wife voted as he did. There was no further testimony with respect to any other electors.

With respect to the official ballot, plaintiffs rely upon the recitals that, "If the proposed constitution fails to receive a majority of the votes cast, alternate issues also fail," and "The proposed constitution will include a bicameral (2 houses) legislature unless a majority of those voting in this election vote for a unicameral (one house) legislature in Issue 2." The reference to the "majority of those voting in this election" simply follows the language of the then existing constitution providing that no revision, alteration or amendment shall take effect unless approved by "a majority of the electors voting at the election". It is obvious that if the proposed constitution failed to pass, the alternate issues would also fail. The ballot contains and underscores the statement "PLEASE VOTE ON ALL FOUR ISSUES."

The...