Mont. for Justice v. State ex rel. Mcgrath

Decision Date26 October 2006
Docket NumberNo. DA 06-0634.,DA 06-0634.
Citation146 P.3d 759,334 Mont. 237,2006 MT 277
PartiesMONTANANS FOR JUSTICE: Vote No On CI-98; Not In Montana: Citizens Against CI-97; and Property Owners Against I-154, Political Ballot Committees, Plaintiffs and Respondents, v. STATE of Montana, by and through Mike McGRATH, in his capacity as the Attorney General; and Brad Johnson, in his capacity as Secretary of State, Defendants and Respondents, Montanans in Action, a Montana Corporation; Citizens Right to Recall Montana; Protect Our Homes Montana; Stop Over Spending Montana, Political Ballot Committees, and Trevis Butcher, Defendants and Appellants, and Kendall Cox, Ervin J. Hanks, and Robert J. Cooper, Individually, Intervenors.
CourtMontana Supreme Court

For Defendants and Appellants: Christopher John Gallus, Helena, Montana.

For Intervenors: Patrick R. Watt, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana.

For Plaintiffs and Respondents: Peter Michael Meloy and Robin A. Meguire, Meloy Trieweiler, Helena, Montana.

For Defendants and Respondents: Mike McGrath, Attorney General, Anthony Johnstone, Assistant Attorney General, Pamela D. Bucy, Assistant Attorney General, Janice Doggett, Legal Counsel, Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Plaintiffs Montanans For Justice: Vote No On CI-98, Not In Montana: Citizens Against CI-97, and Property Owners Against I-154 (collectively "Opponents") comprise three political ballot committees who brought suit against the three Defendant political ballot committees: Citizens Right To Recall Montana, Protect Our Homes Montana, and Stop Over Spending Montana. Opponents also sued Trevis Butcher, the treasurer of the Defendant political ballot committees, and Montanans in Action, a Montana corporation for which Butcher is executive director. Defendant political ballot committees, Montanans in Action, and Trevis Butcher will be referred to collectively as "Proponents." Additionally, Opponents sued the State of Montana through Attorney General Mike McGrath and Secretary of State Brad Johnson (hereinafter "the State").

¶ 2 Opponents brought this action in the Montana Eighth Judicial District Court, Cascade County, alleging that Proponents, in their attempt to get two constitutional initiatives and one statutory initiative on the ballot for November 2006, engaged in signature gathering practices that violated applicable state law. After an expedited hearing, the District Court held that the signature gathering process was permeated by fraud and procedural non-compliance. The court invalidated the signatures obtained by specific signature gatherers, and invalidated the Secretary of State's certifications of CI-97, CI-98, and I-154. Proponents appeal. We affirm.


¶ 3 Proponents raise three issues on appeal. A restatement of those issues is:

¶ 4 1. Was Opponents' claim barred by laches?

¶ 5 2. Did the District Court violate Proponents' due process rights when it expedited the hearing and denied more time for discovery?

¶ 6 3. Did the District Court err when it determined that the signature gathering process was permeated by a pervasive and general pattern and practice of fraud and procedural non-compliance?


¶ 7 This case involves an attempt by Proponents to place two constitutional initiatives and one statutory initiative on the November 2006 ballot. CI-97 is a proposed constitutional initiative imposing limits on the spending and taxation authority of the State of Montana. CI-98 is a proposed constitutional initiative revising the process for removing judges and justices from office. I-154 is a proposed statutory initiative revising the legal definition of a government "taking" as it relates to property ownership and eminent domain.

¶ 8 Proponent committees were formed for the purpose of promoting these initiatives, while Opponent committees were formed once the promotion began, in order to oppose them.

¶ 9 Montana citizens have the constitutional right to enact laws by initiative. Mont. Const. art. III, § 4. The Legislature has established specific procedural requirements to safeguard the integrity and fairness of the initiative process. See §§ 13-27-101 through -504, MCA. One such requirement is that proponents of an initiative, whether statutory or constitutional, must gather a specific percentage of voter signatures to qualify their initiative for the ballot. Sections 13-27-204 and -2071, MCA. Currently, under these statutes, to qualify a statutory initiative, 22,308 signatures from 34 legislative districts must be gathered. To qualify a constitutional initiative for the ballot, a petitioner must gather 44,615 signatures from 40 legislative districts.

¶ 10 A "signature gatherer" is defined as "an individual who collects signatures on a petition for the purpose of an initiative, a referendum, or the calling of a constitutional convention." Section 13-27-111(4), MCA (as amended, 2003). Such signature gatherers must submit a standard form affidavit attesting that: (1) he or she "gathered or assisted in gathering" the signatures on the petition; and (2) he or she believes the signatures on the petition are those of genuine Montana voters living at the addresses entered by the petition signer; and that "the signers knew the contents of the petition before signing the petition."2 Section 13-27-302, MCA.

¶ 11 Proponents began collecting signatures throughout the state of Montana in March 2006 and collected them until June 23, 2006, the date on which all gathered signatures had to be submitted to county election administrators for certification. Proponents utilized some Montana citizens to collect signatures but relied primarily on paid out-of-state signature gatherers to obtain the overwhelming majority of the signatures submitted. The uncontradicted evidence established that Proponents paid over $633,000.00 to out-of-state signature gatherers who collected signatures for these three initiatives. Individual signature gatherers were paid between fifty-cents and $2.50 per signature per initiative.

¶ 12 Proponents submitted their signed petitions to the county election administrators, who in turn certified them and submitted them to the Secretary of State's office. The Secretary of State ultimately certified 47,905 signatures for CI-97, 49,956 signatures for CI-98, and 27,748 signatures for I-154. Because each initiative garnered more than the required number of signatures (see ¶ 9), these ballot initiatives were certified to the Governor on or around July 21, 2006.

¶ 13 On August 16, 2006, Opponents filed their Complaint alleging that Proponents' signature gatherers violated the statutory requirements governing ballot issue petitions by obtaining signatures in a deceptive manner and by falsely swearing to the contents on the signature gatherers' form affidavits. On August 24, 2006, the Secretary of State's office certified ballots containing all three ballot initiatives back to the county election administrators for preparation and printing of ballots for the elections. Also on August 24, Opponents moved for an expedited hearing on their Complaint. On August 28, 2006, the District Court granted the motion to expedite, and set the hearing for September 8, 2006. In this Order, the court also instructed Opponents to properly serve Proponents with the Complaint. The Proponents were served with the Complaint that same day.3

¶ 14 The State accepted service of the Complaint on August 17, 2006. It filed its Answer to the Complaint on August 30, 2006, but took no position as to the truth of the allegations raised by the Opponents. The case was assigned to the Honorable Kenneth R. Neill of the Montana Eighth Judicial District. Pursuant to notice, Judge Neill held a conference on the record on September 5, 2006, which counsel for all parties attended either in person or by telephone.

¶ 15 During the conference, the court and the parties settled upon the date and time for perpetuation depositions of three of Opponents' witnesses. Also, the court inquired whether any of the parties had a problem with the scheduled hearing date. Proponents' attorney stated, "We do have some problems, not so much with the date, although we would like to see it moved so that we would have more time for some discovery." However, due to the District Court's schedule and the urgency to resolve this case at the earliest date before the November election, the District Court denied Proponents' suggestion that the hearing be moved. The court concluded its conference by requesting that the parties submit proposed findings of fact and conclusions of law. Opponents submitted both a pre-hearing brief and their proposed findings and conclusions on September 8, 2006. Proponents declined to submit either. Moreover, Proponents did not file an Answer to Opponents' Complaint, nor did they file any pre-trial motions for discovery or extension of time.

¶ 16 On September 7, 2006, the day before the scheduled hearing, counsel for the Proponents filed a one-sentence motion for substitution of judge. As a result, Judge Neill requested that Honorable Dirk Sandefur assume jurisdiction. Judge Sandefur accepted jurisdiction on September 8, 2006.

¶ 17 The case proceeded to trial on September 8, 2006, before Judge Sandefur, sitting without a jury. Before trial began, Intervenors Cox, Hanks and Cooper appeared by counsel and requested leave to intervene in the proceedings. Their motion was granted without objection. Trial then commenced. Opponents called three witnesses to testify in person. They also presented three perpetuation depositions, as well as excerpts from the testimony of a signature gatherer given at a hearing before the Oklahoma Supreme Court. The State called two witnesses, and two of the Intervenors testified on...

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