Montanans for Laws v. State ex rel. Johnson

• Decision Date: 19 March 2007
• Docket Number: No. DA 06-0740.,DA 06-0740.
• Citation: 2007 MT 75,154 P.3d 1202
• Parties: MONTANANS FOR EQUAL APPLICATION OF INITIATIVE LAWS, a Montana corporation, Plaintiff and Appellant, v. STATE of Montana, by and through Brad JOHNSON, in his capacity as Secretary of State, Raise Montana's Committee to Increase the Minimum Wage, Political Ballot Committee, Defendants and Respondents.
• Court: Montana Supreme Court

154 P.3d 1202

2007 MT 75

MONTANANS FOR EQUAL APPLICATION OF INITIATIVE LAWS, a Montana corporation, Plaintiff and Appellant, v. STATE of Montana, by and through Brad JOHNSON, in his capacity as Secretary of State, Raise Montana's Committee to Increase the Minimum Wage, Political Ballot Committee, Defendants and Respondents.

No. DA 06-0740.

Supreme Court of Montana.

Submitted on Briefs December 20, 2006.

Decided March 19, 2007.

For Appellant: David G. Dennis, Church, Harris, Johnson & Williams, P.C., Great Falls, Montana.

For Respondent State of Montana: Hon. Mike McGrath, Montana Attorney General, Anthony Johnstone, Pam Bucy, Assistant Attorneys General, Helena, Montana.

For Respondent Raise Montana's Committee to Increase the Minimum Wage: James P. Molloy, Molloy Law Firm, Helena, Montana, Brian K. Gallik, Goetz, Gallik & Baldwin, P.C., Bozeman, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Montanans for Equal Application of Initiative Laws (Opponents) filed an action seeking to invalidate certain signatures gathered on behalf of Initiative 151 (I-151) and to enjoin the Secretary of State from including this initiative on Montana's November 7, 2006 general election ballot. After an expedited hearing, the District Court for the Eighth Judicial District, Cascade County, granted summary judgment concluding that Opponent's claim was barred by the 30-day limitations period contained in § 3-5-302(6), MCA. Opponents appeal. We hold that Opponents' appeal has been rendered moot by Article III, Section 4(3) of the Montana Constitution.

¶ 2 Opponents raised the following issue on appeal: Whether the District Court erred in determining that § 3-5-302(6), MCA, bars Opponents' challenge to I-151.

Factual and Procedural Background

¶ 3 I-151 is a ballot initiative intended to increase the state minimum wage. Raise Montana's Committee to Increase the Minimum Wage (Raise Montana) is a registered political committee whose purpose is the support of I-151. On January 24, 2006, the Secretary of State approved Raise Montana's petition to place I-151 on the November 7, 2006 general election ballot. Thereafter, Raise Montana began the process of gathering the signatures necessary to place I-151 on the ballot.

¶ 4 Each petition contained the following "Statement of Purpose":

This measure raises the state minimum wage to the greater of either $6.15 an hour or the federal minimum wage. This measure also adds an annual cost-of-living adjustment to the state minimum wage. Under existing law, the state minimum wage is equal to the federal minimum wage, which is $5.15 an hour with no cost-of-living adjustment. This measure does not change the $4.00 an hour minimum wage for a business whose annual gross sales are $110,000 or less. This measure would take effect January 1, 2007.

¶ 5 Raise Montana submitted its first petition signatures to county election administrators for their review on February 2, 2006. In April or May 2006, Raise Montana decided to employ a limited number of paid signature gatherers to supplement its volunteer force.

¶ 6 On July 12, 2006, the Secretary of State notified the Governor that a sufficient number of valid signatures had been obtained to qualify I-151 for the general election ballot. As of that date, 22,527 valid signatures comprising at least five percent of the qualified electors in 43 legislative representative districts, had been obtained on the I-151 petitions. The Secretary of State eventually certified a total of 33,925 signatures for I-151; 11,617 more than necessary to qualify I-151 for the ballot.

¶ 7 On September 13, 2006, the District Court for the Eighth Judicial District, Cascade County, invalidated the certifications of CI-97, CI-98 and I-154. The court found that

it was more probable than not that the out-of-state signature gatherers executed certification affidavits attesting that they personally gathered or assisted in gathering signatures that someone else actually gathered outside of their presence without any direct assistance from them.... [And that the] evidence established that the signers were located in various cities and counties throughout the state and that the attesting signature gatherer could not have possibly been present when many persons signed their petitions.

Montanans for Justice v. State ex rel. McGrath, 2006 MT 277, ¶ 45, 334 Mont. 237, ¶ 45, 146 P.3d 759, ¶ 45. The court also found substantial evidence of widespread fraud and the use of highly-paid, out-of-state signature gatherers who fraudulently induced Montanans to sign the petitions at issue. Montanans for Justice, ¶¶ 2, 44.

¶ 8 Opponents filed their Complaint against the State, by and through the Secretary of State, and against Raise Montana on October 3, 2006, seeking to decertify I-151 from inclusion on Montana's November 7, 2006 general election ballot. Opponents argued in their Complaint that those individuals gathering signatures to place I-151 on the ballot, engaged in signature gathering practices that violated state law. Specifically, Opponents contended that those signature gatherers submitting affidavits with each sheet of signatures did not actually "gather or assist in gathering" the accompanying signatures in violation of § 13-27-307, MCA. Opponents did not contend that any of the signatures on the petitions for I-151 were obtained by fraud, deceit or misrepresentation. Opponents' Complaint was filed 83 days after the Secretary of State certified I-151 for inclusion on the ballot.

¶ 9 Opponents moved for an expedited hearing on their Complaint. The Honorable Kenneth Neil of the District Court for the Eighth Judicial District, Cascade County, assumed jurisdiction of the case and granted Opponents' motion to expedite.

¶ 10 On October 16, 2006, Raise Montana filed a Motion for Summary Judgment contending that Opponents' challenge to I-151 was barred by the 30-day limitations period in § 3-5-302(6), MCA, which provides:

(6) (a) Except as provided in subsection (6)(b), a contest of a ballot issue submitted by initiative or referendum may be brought prior to the election only if it is filed within 30 days after the date on which the issue was certified to the governor, as provided in 13-27-308, and only for the following causes:

(i) violation of the law relating to qualifications for inclusion on the ballot;

(ii) constitutional defect in the substance of a proposed ballot issue; or (iii) illegal petition signatures or an erroneous or fraudulent count or canvass of petition signatures.

(b) A contest of a ballot issue based on subsection (6)(a)(i) or (6)(a)(iii) may be brought at any time after discovery of illegal petition signatures or an erroneous or fraudulent count or canvass of petition signatures.

(c) Nothing in subsection (6) limits the right to challenge a measure enacted by a vote of the people.

Raise Montana argued that Opponents were required to file their challenge within 30 days of the date I-151 was certified to the Governor because Opponents could have discovered the illegal signatures at that time.

¶ 11 On October 25, 2006, the District Court heard argument on Raise Montana's summary judgment motion. During the hearing, Opponents' counsel admitted that the facts upon which his client relied for its Complaint were available both before the Secretary of State certified I-151 for the ballot and within 30 days after the Secretary of State certified I-151 for the ballot. The court took the matter under advisement and immediately proceeded to the scheduled bench trial.

¶ 12 Thereafter, the District Court granted Raise Montana's Motion for Summary Judgment and dismissed Opponents' Complaint. In its November 3, 2006 order granting Raise Montana's motion, the court concluded that Opponents' claim was barred by the 30-day limitations period set forth in § 3-5-302(6), MCA. Opponents filed their Notice of Appeal on November 6, 2006, the day before the general election. Opponents requested an expedited appeal process and asked this Court to enjoin the Secretary of State from canvassing and transmitting the statement of the canvas on I-151 pending final resolution of this matter. We granted Opponents motion to expedite the appeal, but denied Opponents motion to enjoin.

¶ 13 On November 7, 2006, election day, 73% of Montana voters approved I-151 with 285,535 persons voting in favor of the initiative and 27% of Montana voters, or 107,294 persons, voting against it. See Montana Ballot Measures, http://leg.mt.gov/textonly/ research/information/ballot_measures.asp (accessed March 8, 2007).

Standard of Review

¶ 14 We review a district court's decision to grant summary judgment de novo, applying the same evaluation under M.R. Civ. P. 56, as the district court. Cole ex rel. Cole Revocable Trust v. Cole, 2003 MT 229, ¶ 8, 317 Mont. 197, ¶ 8, 75 P.3d 1280, ¶ 8 (citing Vivier v. State Dept. of Transp., 2001 MT 221, ¶ 5, 306 Mont. 454, ¶ 5, 35 P.3d 958, ¶ 5). In this regard, we have stated that

[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law.

Cole, ¶ 8 (quoting Bruner v. Yellowstone County, 272 Mont. 261, 264-65, 900 P.2d 901, 903 (1995)).

¶ 15 Moreover, in evaluating a motion for summary judgment, "the evidence must be viewed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn therefrom in favor of the party opposing summary judgment." Prindel v. Ravalli County, 2006 MT 62, ¶ 19, 331 Mont. 338, ¶ 19, 133 P.3d 165, ¶ 19 (quoting Lopez v. Great Falls Pre-Release Services, 1999 MT 199, ¶ 16, 295 Mont. 416, ¶ 16, 986 P.2d 1081, ¶ 16). In addition, we review a...