Grossman v. State Dept. of Natural Resources

Decision Date07 May 1984
Docket NumberNo. 83-453,83-453
Citation209 Mont. 427,41 St.Rep. 804,682 P.2d 1319
PartiesRay GROSSMAN, Plaintiff and Appellant, v. STATE of Montana, DEPARTMENT OF NATURAL RESOURCES, et al., Defendants and Respondents.
CourtMontana Supreme Court

Hooks & Budewitz, Patrick F. Hooks argued, Townsend, for plaintiff and appellant.

Mike Greely, Atty. Gen., Jim Waltermire, Secretary of State, Leo Berry, Dept. of Natural Resources, Robert Lane argued, D.N.R., Oitzinger & Mullendore, John J. Oitzinger argued, Mike Young, Dept. of Admin., G. Steven Brown, B.N.R., Helena, for defendants and respondents.

SHEEHY, Justice.

At issue here is the state constitutionality of several acts of the legislature allowing the issuance of state revenue bonds. These bonds would be financed by coal severance taxes to provide proceeds for the development of state water resources. This action requires a decision by the Court not only on the state constitutionality of the enactment by the legislature of the enabling provisions, but also the state constitutionality of the application of the bond proceeds to the projects proposed by the legislature to receive such proceeds.

We hold the enactments of the statutes hereinafter enumerated and discussed relating to the revenue bonds in question are in accord with our state constitution; and that the proposed uses of the bond proceeds are likewise consonant with the state constitution.

I.

Ray Grossman is a self-employed citizen of the United States of America and a citizen, resident and registered elector of Montana, residing in Townsend, Broadwater County. He owns real and personal property on which he pays the State and its subdivisions real and personal property taxes. He also pays the State income tax on his earnings.

Grossman contends that Ch. 505, Laws of Montana (1981); H.B. 846 (47th Leg. Assembly); and H.B. 885 (48th Leg. Assembly), enacted as Ch. 705, Laws of Montana (1983), are void and unconstitutional. In support of his claims, he filed a complaint for declaratory judgment in this Court requesting us to take original jurisdiction. The respondents have answered the complaint urging us to accept jurisdiction, and supporting in all particulars the state constitutionality of the disputed acts. The respondents further request that we grant summary judgment in favor of the State. This Court reserved the question of assumption of jurisdiction, and granted oral argument on all phases of the issues. The parties have stipulated, and it appears from the record, that there are no fact issues before us, only questions of law.

II.

Original jurisdiction depends on the resolution of two questions: (1) Whether the Supreme Court has original jurisdiction of such a declaratory judgment action; and (2) if it has jurisdiction, whether Grossman has standing to bring the action.

The original jurisdiction of this Court is defined in Art. VII, Sec. 2, 1972 Mont. Const., where it is provided that we may "issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law."

The state constitutional grant of original jurisdiction in this Court is open to interpretation. The grant was interpreted favorably to acceptance by the Court in Forty-Second Legislative Assembly v. Lennon (1971), 156 Mont. 416, 420-22, 481 P.2d 330, where, interpreting the 1889 Mont. Const., Art. VIII, Sec. 3, Justice Haswell (now Chief Justice) wrote for the Court:

"A declaratory judgment action is a proper proceeding in which to reach and answer the legal issues raised in this proceeding. A court of record in Montana is specifically granted the power 'to declare rights, status, and other legal relations' of a party (section 93-8901, R.C.M. 1947) [now section 27-8-201, MCA] which 'are affected by a statute' (section 93-8902, R.C.M. 1947) [now section 27-8-202, MCA] and in which a declaratory judgment 'will terminate the controversy or remove an uncertainty.' (section 93-8905, R.C.M. 1947) [now section 27-8-205, MCA.] This is precisely the situation that exists in the present case. Here we have a presently existing bona fide, justiciable, legal controversy concerning the authority of the legislative assembly under the constitution and statutes of Montana in enacting mandatory enabling legislation for a constitutional convention. Resolution of the issues presented herein is necessary to eliminate or reduce a multiplicity of future litigation; to prevent interminable delay in the election of delegates, the formation, and the functioning of the constitutional convention; and to eliminate needless expenditure of public funds on procedures that otherwise might subsequently be declared illegal. One of the basic purposes of the Montana Declaratory Judgments Act is to provide a procedure for advance determination of such issues, thereby eliminating these otherwise detrimental results.

"Under the circumstances of the present case, an original proceeding for declaratory judgment in the Supreme Court is likewise authorized. Jurisdiction is granted this Court to hear and determine 'such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction. (Art. VII, Sec. 3, [1889] Montana Constitution.) A similar provision exists by statute (section 93-214, R.C.M. 1947) [now section 3-2-203, MCA], and Montana case law is replete with authority sustaining the original jurisdiction of the Supreme Court in declaratory judgment actions in a variety of situations (citing authority). The foregoing cases establish the original jurisdiction of the Supreme Court in a declaratory judgment action where legal questions of an emergency nature are presented and ordinary legal procedures will not afford timely or adequate relief. Such is the situation here. We have an urgent emergency situation in view of the mandatory legislation required of the present session of the legislative assembly, the absence of any factual controversy but only pure legal questions that must ultimately be answered by this Court in any event, and ordinary legal procedures that will not afford timely relief."

The wording of the judicial article defining our original jurisdiction contained in the 1972 Montana Constitution is different from the provisions of the judicial article of the 1889 Montana Constitution. Does that difference mean that the original jurisdiction power of this Court is less than we perceived it to be in Lennon?

During the Constitutional Convention, on March 9, 1972, the Committee on Style, Drafting, Transition and Submission reported on the judicial article for submission to the convention. (Tr. at 911, 913, 1972 Montana Constitutional Convention Proceedings.) Art. VII(2)(1), came before the convention floor on March 13, 1972, in the following form:

"SUPREME COURT JURISDICTION. (1) The supreme court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus."

Motion was made to add to the subsection we have quoted above, the language "and such other writs as may be provided by law." In a floor discussion Delegate Berg told the convention:

"DELEGATE BERG: Mr. Chairman. I join, of course, in this motion to reconsider. It developed that after we had written the article, Sandra Muckelston, the research analyst, pointed out to us a case in the Montana Supreme Court, known as Naegele v. Kelsey, in which the Supreme Court held that under the old Constitution there was some question, perhaps, as to whether writs--remedial writs--might be issued if it was limited to appellate jurisdiction as we had written it here. It is to correct that possibility that we ask that this amendment be made so as to conform with what the Supreme Court has already determined its jurisdiction to be." (Emphasis added.) Tr. at 2178, 1972 Montana Constitutional Convention.

When on March 13, 1972, the Montana Constitutional Convention was acting on Art. VII, Sec. 2(1), the Lennon decision was already in the books, it having been decided on February 19, 1971. It appears evident from the discussion of Delegate Berg that it was the intention of the delegates to the 1972 constitutional convention that our original jurisdiction, as interpreted by the Supreme Court, be continued. The amendment was adopted by the 1972 Montana Constitutional Convention, so that the present form of Art. VII, Sec. 2(1), is:

"Section 2. Supreme court jurisdiction. (1) The supreme court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law."

The decision referred to by Delegate Berg in the constitutional convention is State ex rel. Nagle v. Kelsey (1936), 102 Mont. 8, 55 P.2d 685. In that case the Court discussed whether it had jurisdiction to accept an original proceeding for a writ of quo warranto. The contention was made that an original proceeding was not appropriate to the appellate jurisdiction, and therefore this Court had no jurisdiction. In refuting the contention, this Court pointed out in Kelsey that in the 1881 case of In re MacKnight (1891), 11 Mont. 126, 27 P. 336, then Justice Harwood, writing for the Court, said that for more than 40 years, even before we entered statehood, the jurisdiction of this Court was not limited solely to such writs as may relate to the exercise of its appellate jurisdiction.

An action for declaratory judgment is "provided by law" as was noted in Lennon. It might be contended that a declaratory judgment action is not one for the issuance of a "writ." That contention would favor form over substance. The relief in this case, if Grossman were to be successful in his contentions, would have the force and effect of a writ of prohibition against the state officers. We therefore determine that the rule in Lennon,...

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