Marshall v. State ex rel. Cooney

Citation975 P.2d 325,293 Mont. 274,1999 MT 33
Decision Date24 February 1999
Docket NumberNo. 98-706,AFL-CIO,98-706
PartiesDan MARSHALL, an individual taxpayer and elector; Montana Education Association, an unincorporated labor organization; Montana Federation of Teachers, an unincorporated labor organization; Montana School Boards Association, an incorporated non-profit membership organization; Montana League of Cities and Towns, an incorporated non-profit membership organization; Montana Association of Counties, an incorporated non-profit membership organization; Montana Taxpayers Association, an incorporated non-profit membership organization; Montana State, an unincorporated labor organization; and Montana Chamber of Commerce, an incorporated non-profit membership organization, Plaintiffs, v. STATE of Montana, by and through Mike COONEY, in his official capacity as Chief Election Officer, and Joseph P. Mazurek, in his official capacity as Chief Law Enforcement Officer, Defendants, and Joe Balyeat, individually and as Chairman of Montanans for Better Government, P.A.C., Intervenors.
CourtUnited States State Supreme Court of Montana

Stanley T. Kaleczyc (argued) and Kimberly A. Beatty (argued); Browning, Kaleczyc, Berry & Hoven, Helena, Montana, for Plaintiffs.

Mike Cooney, Secretary of State; Daniel J. Whyte, Chief Legal Counsel, Office of Secretary of State, Helena, Montana, Honorable Joseph P. Mazurek, Attorney General; Clay R. Smith, Solicitor(argued); Chris D. Tweeten, Assistant Attorney General, Helena, Montana, for Defendants.

Kenneth H. Gray (argued); Jackson & Rice, Helena, Montana, for Intervenors.

Honorable Marc Racicot, Governor (argued); Judy Browning, Chief of Staff, Helena, Montana, for Amicus Curiae.

Kyle A. Gray (argued), Jeanne M. Bender; Holland & Hart, Billings, Montana, Elizabeth Brenneman, Litigation Director, American Civil Liberties Union of Montana, Billings, Montana (for American Civil Liberties Union of Montana).

Mona Jamison, Elizabeth L. Griffing; The Jamison Law Firm, Helena, Montana (for Montana Life and Health Insurance Guaranty Association).

Geralyn Driscoll, Office of Public Instruction, Helena, Montana (for State Superintendent of Public Instruction).

Arthur V. Wittich, Attorney at Law, Bozeman, Montana (for National Taxpayers Union).

Paul Grant, pro hac vice, Attorney at Law, Parker, Colorado, Kenneth H. Gray; Jackson & Rice, Helena, Montana (for Initiative and Referendum Institute).

Gerald J. Neely, Attorney at Law, Billings, Montana (on his own behalf).

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶1 Plaintiffs challenge the constitutional validity of Constitutional Initiative 75 (CI-75) in an original application for declaratory judgment and injunctive relief.

¶2 We hold that CI-75 violates Article XIV, Section 11, of Montana's Constitution.

¶3 We address the following issue:

¶4 Whether CI-75 violates the separate-vote provision in Article XIV, Section 11, of the Montana Constitution.

Factual and Procedural Background

¶5 On November 3, 1998 Montana voters approved CI-75. As enacted, CI-75 amended Article VIII of the Montana Constitution by adding a new Section 17 that began:

Section 17. People's right to vote on taxes-fairness in tax elections-enforcement.

(1) No new tax or tax increase may be enacted unless first approved by a majority of the electors voting on the measure in the geographic area subject to the tax.

In response to CI-75, Plaintiffs made an original application for declaratory judgment and injunctive relief. This Court accepted jurisdiction in December, 1998.

¶6 In their original application for declaratory judgment and injunctive relief, Plaintiffs set forth seven Counts. Count one alleges that CI-75 violates Article XIV, Section 11, of the Montana Constitution because the provisions of CI-75 make more than one amendment to the Montana Constitution. Count two alleges that CI-75 violates Article V, Section 11(3), of the Montana Constitution because CI-75 has multiple subjects. Count three alleges that CI-75 violates Article XIV, Sections 1-7, of the Montana Constitution because CI-75 constitutes a revision of the Montana Constitution without a Constitutional Convention having been called. Count four alleges that the ballot presented to the electorate violated the right to due process guaranteed by Article II, Section 17, of the Montana Constitution because the ballot did not describe the entirety of the measures proposed by CI-75. Count five appears to allege that in violation of Article II, Section 4, of the Montana Constitution, Plaintiffs have been discriminated against in the exercise of their political rights on account of their social origin or political ideas. Count six alleges that in violation of Article II, Section 17, of the Montana Constitution certain plaintiffs were prohibited from exercising their right to political speech and association in connection with their opposition to CI-75, and thus denied their right to substantive due process. Count seven alleges that in violation of Article II, Sections 6-7, of the Montana Constitution certain plaintiffs were denied their right to political speech and association in connection with their opposition to CI-75.

¶7 Plaintiffs seek a declaratory judgment that CI-75 is unconstitutional and that the November, 1998 General Election is invalid with respect to CI-75. Plaintiffs further seek a mandatory injunction directing the Secretary of State to decertify the election results regarding CI-75 and a permanent injunction prohibiting the Montana Attorney General from enforcing the provisions of CI-75. Finally, Plaintiffs seek costs and attorney fees and such other relief as this Court deems just and proper.

Discussion

¶8 Whether CI-75 violates the separate-vote provision in Article XIV, Section 11, of the Montana Constitution.

¶9 Because the issue is dispositive, we address Plaintiffs' argument that CI-75 has two or more constitutional amendments in violation of Article XIV, Section 11, of the Montana Constitution. Article XIV, Section 11, provides:

Submission. If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.

Art. XIV, Sec. 11, Mont. Const.

¶10 Plaintiffs argue that CI-75 violates Article XIV, Section 11, of the Montana Constitution because it either explicitly or implicitly amends at least twelve sections of Montana's Constitution. Further, CI-75 is defective because of its provision that if there is an "irreconcilable" conflict between any part of it and the Montana Constitution, CI-75 prevails. Plaintiffs contend that the effect of CI-75's "irreconcilable conflict" clause is that existing constitutional rights, such as the right to a trial by jury and to a speedy trial, have become conditional rights with effect only so long as the people approve taxes necessary to provide service.

¶11 Plaintiffs contend that this Court's decisions in State v. Board of Com'rs (1906) (hereafter "Teague"), 34 Mont. 426, 87 P. 450 and State v. Alderson (1914) (hereafter "Hay"), 49 Mont. 387, 142 P. 210, are distinguishable from the present case. In Hay and Teague, the Court affirmed the validity of constitutional amendments that each had several parts. However, the amendments in Hay and Teague each affected only one part of the Montana Constitution. In the present case, CI-75 affects many parts of the Montana Constitution. Moreover, the amendments in Hay and Teague were simple in comparison with CI-75 and its pervasive impacts upon the Montana Constitution.

¶12 Plaintiffs argue that the drafters of Montana's Constitution intended to ensure that voters would not be misled by the title of a constitutional amendment. They urge that Article XIV, Section 11, has a meaning distinct from that of Article V, Section 11(3), of the Montana Constitution. Plaintiffs contend that constitutional initiatives are subject to both the separate-vote requirement of Article XIV, Section 11, and the single-subject requirement of Article V, Section 11(3). Thus, because CI-75 has many subjects, it violates Article V, Section 11(3); because CI-75 makes more than one amendment of Montana's Constitution, it violates Article XIV, Section 11.

¶13 Plaintiffs rely upon Armatta v. Kitzhaber (1998), 327 Or. 250, 959 P.2d 49. In Armatta, the court addressed a crime victims' rights initiative and distinguished the meanings of two Oregon constitutional provisions that are similar to Article XIV, Section 11, and Article V, Section 11(3), of the Montana Constitution. The Armatta court concluded that an Oregon constitutional provision similar to Montana's Article XIV, Section 11, requires that voters not be forced to vote upon multiple constitutional changes in a single vote. The court in Armatta also concluded that an Oregon constitutional provision similar to Montana's Article V, Section 11(3), requires that constitutional amendments have a single subject. Plaintiffs appear to urge that this Court follow Armatta in recognizing and distinguishing the requirement of a separate vote on each constitutional amendment from the requirement that each constitutional amendment have a single subject.

¶14 Defendants respond that CI-75 is a valid constitutional amendment. Defendants argue that under this Court's decisions construing Article XIX, Section 9, of the 1889 Montana Constitution, CI-75 is valid notwithstanding its different provisions because its provisions are germane to its single purpose. Article XIX, Section 9, provided in part that "[s]hould more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately." Art. XIX, Sec. 9, Mont. Const. (1889). Defendants contend that the Montana Supreme Court decisions that interpreted Article XIX, Section 9, should also apply to Article XIV, Section 11, of Montana's present Constitution. Defendants assert...

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