Montana Auto. Ass'n v. Greely, 81-45

• Decision Date: 30 July 1981
• Docket Number: No. 81-45,81-45
• Citation: 193 Mont. 378,38 St.Rep. 1174,632 P.2d 300
• Parties: MONTANA AUTOMOBILE ASSOCIATION, Buffalo Machinery Company et al., and Montana Chamber of Commerce, Plaintiffs and Respondents, v. Mike GREELY, Attorney General of the State of Montana, and Peg Krivec, Commissioner of Political Practices, Defendants and Appellants.
• Court: Montana Supreme Court

Page 300

632 P.2d 300

193 Mont. 378

MONTANA AUTOMOBILE ASSOCIATION, Buffalo Machinery Company et al., and Montana Chamber of Commerce, Plaintiffs and Respondents, v. Mike GREELY, Attorney General of the State of Montana, and Peg Krivec, Commissioner of Political Practices Defendants and Appellants.

No. 81-45.

Supreme Court of Montana.

Submitted March 27, 1981.

Decided July 30, 1981.

Mike Greely, Atty. Gen., Richard Larson, argued, and Mary B. Troland, argued, Asst. Attys. Gen., Jack Lowe, Helena, for defendants and appellants.

Donald Garrity argued, Helena, for plaintiffs and respondents.

James Goetz, A.C.L.U., Bozeman, James W. Zion, A.C.L.U., Helena, Kelly Alan Jenkins, Common Cause, Helena, amicus curiae.

WEBER, Justice.

Initiative No. 85 ¹, Lobbyist Disclosure (herein called "I-85" or "the Initiative") was held to be unconstitutional by the District Court of the First Judicial District. Defendants, the state attorney general and the commissioner of political practices of the State of Montana, were permanently enjoined from enforcement of I-85. Defendants appeal from the judgment. We hold that the Initiative in part is unconstitutional and void, and that the balance of I-85 is sufficient to carry out the purposes of the Act, and, therefore, remains in effect. This opinion does not rule upon the applicability of I-85 to lawyers, which will be decided in a separate opinion, State Bar of Montana v. Krivec, Supreme Court Docket No. 81-35.

Chapter 157, Laws of Montana (1959), entitled "Lobbying", was enacted in 1959 and codified as section 43-801, et seq., R.C.M., 1947, now Chapter 7, Title 5, MCA. The Lobbying Act was enacted "to promote a high standard of ethics in the practice of lobbying, to prevent unfair and unethical lobbying practices, and to provide for the licensing of lobbyists and the suspension or revocation of the licenses." Section 5-7-101, MCA. Legislative amendments in 1965 and 1977 made minor changes in the lobbying law but did not alter its scope. Section 3, Ch. 248, Laws of Montana (1965); sections 19, 20 and 21, Ch. 309, Laws of Montana (1977). House Bill 49 and Senate Bill 233, designed to expand the Act to require disclosure of the amounts of money spent for lobbying, were introduced during the 1979 legislative session, but were killed prior to transmittal. House Journal, 46th Legislature (Montana 1979); Senate Journal, 46th Legislature (Montana 1979).

In 1980, a successful petition effort resulted in the placement of I-85 on the statewide November ballot. The Initiative sought to add 13 new sections and to make numerous amendments to the existing lobbying regulation act. It also greatly expanded the "Definitions" section of the original law in an attempt to clarify the application of the law as expanded and amended. Most of the 1959 law and all of the changes proposed by I-85 were printed in the Voter Information Pamphlet for the November 4, 1980, general election. The official vote on I-85 was 259,698 "for" and 76,358 "against".

On November 24, 1980, a declaratory judgment action was brought in the First Judicial District. The plaintiffs are associations which employ lobbyists, several individuals, and one state representative; and the defendants are the attorney general and the commissioner of political practices of Montana. An attempt by defendants to remove the action to the United States District Court was unsuccessful. On January 22, 1981, after submission of briefs and a hearing, the District Court decreed that "Initiative No. 85 is unconstitutional, null, and void, and that defendants are permanently enjoined from enforcing its provisions." The finding of unconstitutionality was based upon the Initiative's impact on numerous rights: privacy, freedom of speech, freedom of the press, freedom of association, freedom to petition the government, equal protection of the laws, and freedom from compelled self-incrimination. The Initiative was also held to be void for vagueness. The District Court found that the State had not met its burden of establishing a compelling interest that justified the infringements mentioned above, or that the State's interest could be achieved through less restrictive means. Finally, the District Court held that the constitutionally offensive portions of the Initiative could not be severed because "the validity of the entire measure depends upon the showing of a compelling state interest and a determination that such interest may not be satisfied by legislation more narrowly drawn."

We agree with the District Court that I-85 conflicts with various constitutional rights of those affected by its provisions. However, we do not agree that there has been a failure to establish a compelling state interest for the passage of I-85.

While we find that certain provisions of the Initiative are beyond redemption, the striking of those provisions does not result in a law that is incomplete or incapable of fulfilling its stated purpose.

Whether enacted by the legislature or created by the people through initiative, all statutes carry with them a presumption of constitutionality. State v. Erickson (1926), 75 Mont. 429, 438, 244 P. 287, 290. When a statute is challenged as being unconstitutional, the challenger must show that it does in fact infringe upon a right guaranteed by the Constitution. N.A.A.C.P. v. Alabama (1958), 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488. When it has been demonstrated that a statute infringes upon First Amendment freedoms, a presumption of constitutionality is no longer available. United States v. C.I.O (1948), 335 U.S. 106, 140, 68 S.Ct. 1349, 1366, 92 L.Ed. 1849, 1870-71, (Rutledge, J., concurring). Nevertheless, restrictions of First Amendment rights may be allowed if the state can show that the challenged statute furthers a compelling governmental interest. United States v. O'Brien (1968), 391 U.S. 367, 377, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672, 679-80. Appellants agree that certain provisions of I-85 have an impact upon the fundamental rights of those to whom the law applies. However, they argue that the District Court erred in finding that no compelling state interest had been demonstrated.

The District Court found that "(t)he Initiative itself does not recite any 'compelling state interest' in ... disclosure ... Defendants offered no proof to establish such a need." The court also found that the "Montana Legislature has investigative or 'fact-finding' capabilities while the Montana initiative process has no such ability." The mere recitation of a compelling state interest in the Act itself would not be conclusive. While the appellants did not present evidence to establish a compelling state interest, their briefs at the hearing below cited authority from numerous jurisdictions in which a compelling interest for similar legislation had been found to be present. Laws regulating or monitoring the raising and spending of money in the political arena have been enacted throughout the country as well as by the Congress. When these laws have been challenged, the courts have not had difficulty finding a compelling interest as a basis for enactment. United States v. Harriss (1954), 347 U.S. 612, 625, 74 S.Ct. 808, 816, 98 L.Ed. 989, 1001, (maintaining the integrity of a basic governmental process); Young Americans for Freedom, Inc. v. Gorton (1974), 83 Wash.2d 728, 522 P.2d 189, 192, (informing public officials and the electorate of the sponsors of efforts to influence governmental decision-making); Plante v. Gonzalez (5th Cir. 1978), 575 F.2d 1119, 1135, cert. den., (1979), 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90, (protecting citizens from abuse of the trust placed in the hands of elected officials); Montgomery County v. Walsh (1975), 274 Md. 502, 336 A.2d 97, 106, appeal dismissed (1976), 424 U.S. 901, 96 S.Ct. 1091, 47 L.Ed.2d 306, (fostering a climate of honesty perceptible by the public at large). Political corruption is a matter of common popular perception, which may or may not reflect the actualities of political life. Judicial notice may be taken of the compelling need for disclosure laws which have as their purpose the deterrence of actual corruption and the avoidance of appearances of corruption. Buckley v. Valeo (1976), 424 U.S. 1, 67, 96 S.Ct. 612, 657, 46 L.Ed.2d 659, 715. The absence of fact-finding capabilities in the initiative process is not proof of the absence of a compelling state interest in the enactment of I-85. To so hold would result in the emasculation of the initiative process in Montana with a result that no initiative could withstand a First Amendment challenge. We find that the statewide vote on I-85 is a demonstration of a compelling state interest in the enactment of I-85. In addition, the compelling need for this type of legislation is demonstrated by both common understanding and judicial precedent, so no additional evidence need be presented. Because we find that a compelling need for disclosure has been established, we cannot agree with the District Court that I-85 must fall in its entirety. We will now

proceed to apply the severability clause of the Initiative to the end that "all valid parts that are severable from the invalid part (may) remain in effect." Section 21, I-85.

EXCEPTIONS FOR INDIVIDUAL MONTANA CITIZENS

Section 1(2) of I-85 provides that "(n)othing in this chapter subjects any Montana citizen lobbying on his/her own behalf to any reporting requirements nor deprives any such citizen of the constitutional right to communicate with public officials." Section 2(5)(b)(i) states that " '(l)obbyist' does not include (i) any individual Montana citizen acting solely on his/her own behalf ..." We find the exemption provided for Montana citizens constitutionally impermissible. "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." U.S. Const., Art. IV, § 2 cl., 1. We can discern no basis for creating an exception...