State ex rel. Kvaalen v. Graybill, 12260

• Decision Date: 28 April 1972
• Docket Number: No. 12260,12260
• Parties: The STATE of Montana ex rel. Oscar S. KVAALEN, Relator, v. Leo GRAYBILL, Jr., et al., Respondents.
• Court: Montana Supreme Court

Page 1127

496 P.2d 1127

159 Mont. 190

The STATE of Montana ex rel. Oscar S. KVAALEN, Relator, v. Leo GRAYBILL, Jr., et al., Respondents.

No. 12260.

Supreme Court of Montana.

April 28, 1972.

Risken & Scribner, Helena, A. W. Scribner, argued, for relator.

Philip W. Strope, argued, Helena, Joseph P. Monaghan, Butte, amicus curiae.

Harrison, Loendorf & Poston, Helena, Jerome T. Loendorf, argued, Marshall Murray, argued, Kalispell, Ben E. Berg, argued, Bozeman, Thomas F. Joyce, appeared, Butte, Robert L. Woodahl, Atty. Gen., John Connor, Asst. Atty. Gen., argued, Helena, Lawrence D. Huss, Deputy Atty. Gen., appeared, Helena, for respondents.

PER CURIAM.

This is a class action by taxpayers seeking a declaratory judgment and injunctive relief against nineteen Constitutional Convention delegates comprising its voter education committee, the state auditor, and the state treasurer. Relator, by an original proceeding in this Court, seeks (1) a judgment that the voter education committee has no right or authority to receive, expend, or obligate any public funds for voter education purposes, and (2) an injunction prohibiting the committee from receiving, expending, or obligating public funds for such purposes.

The factual background of this controversy will illuminate the legal issues before the Court in this proceeding. The Constitutional Convention was duly convened pursuant to the provisions of the Montana Constitution (Art. XIX, Sec. 8); this Court's decision in Forty-second Legislative Assembly v. Lennon (156 Mont. 416, 481 P.2d 330); and the Constitutional Convention Enabling Act of the Forty-second Legislative Assembly (Chapter 296, 1971 Session Laws, as amended by Chapter 1 of the Laws of the First Extraordinary Session of the Forty-second Legislative Assembly). Also to be noted is our decision in Mahoney v. Murray, Mont., 496 P.2d 1120, a companion case. Its plenary session commenced on January 17, 1972 and continued until noon on March 24, 1972, when it 'adjourned sine die'.

Prior to adjournment sine die, the Constitutional Convention in plenary session adopted Resolution 14 which is the focus of the present controversy. This Resolution adopted on March 16, 1972, was quoted in Mahoney and is herewith set out again in full:

'WHEREAS, The Montana Constitutional Convention has nearly completed its substantive activities and is making arangements for adjournment sine die in order to meet its election date commitment of June 6, 1972; and

'WHEREAS, prior to a adjournment sine die the Convention will not be able to complete its procedural, administrative and voter education affairs, all of which must be concluded in an orderly and responsible manner; and

'WHEREAS, the Convention anticipates that it will need to establish an appropriate committee to manage and conclude all of its procedural, administrative and voter education affairs after adjournment sine die;

'NOW, THEREFORE, IT IS RESOLVED BY THE CONSTITUTIONAL CONVENTION OF THE STATE OF MONTANA AS FOLLOWS:

'1. The Convention hereby creates a committee to act with the President of the Convention on its behalf after adjournment sine die, delegating to it full authority to manage and conclude all of the Convention's procedural, administrative and voter education affairs, and to spend the Convention's funds therefor, but only within the limits of its appropriation and such other funds as the Convention may have.

'2. The Convention hereby appoints to said committee the President, Leo Graybill, Jr., who shall act as its chairman, and the following delegates: John Toole, Dorothy Eck, Bruce Brown, Jean Bowman, Margaret Warden, Fred Martin, Robert Vermillion, Katie Payne, Betty Babcock, Marshall Murray, Catherine Pemberton, John Schiltz, Thomas Joyce, George Harper, Bill Burkardt, Jerome Loendorf, Oscar Anderson, Gene Harbaugh.

'3. No delegate may serve on the committee who shall seek public office in the primary election to be held on June 6, 1972. The President, as chairman of the committe, shall have authority to substitute other Convention delegates for any committee members named herein who may decide to seek public office.

'4. The Convention hereby delegates authority to the committee to receive, disburse and account for all Federal funds which the Convention may receive.

'5. The Convention also delegates authority to the committee to supervise and edit any and all voter education materials prepared on behalf of the Convention or by other persons relative to the work of the Convention.

'6. The committee shall terminate its work at such time as all of the Convention's procedural, administrative and educational affairs have been completed, and all requirements of the Enabling Act have been met.'

Although the exact amount the committee proposes to expend for voter education purposes cannot be precisely computed at this time, it is clear that the voter education committee proposes to receive and expend approximately $45,000 and that some of these public funds have already been spent or obligated. The source of this $45,000 is $15,000 in anticipated unexpended funds appropriated to the Convention by the 1971 Legislative Assembly, plus a $30,000 HUD grant of federal funds for the purpose of providing financial assistance to the Montana Constitutional Convention.

It should also be noted that the 1971 Legislative Assembly appropriated the sum of $41,000 to the secretary of state 'for the elections relating to the constituttional convention'. The sum of $24,000 from this appropriation has been budgeted for voter information concerning the proposed constitution, with comments and report to the people pursuant to the requirements of subsections (4) and (5), Section 17, of the Constitutional Convention Enabling Act and Resolution 11 of the Constitutional Convention.

Section 17(4) of the Constitutional Convention Enabling Act provides:

'Each proposed revision, alteration, or amendment, together with appropriate information explaining each revision, alteration, or amendment, shall be published in full and disseminated to the electors upon adjournment of the convention but not later than thirty (30) days preceding the election and in such manner as the convention prescribes.'

Section 17(5) of the Constitutional Convention Enabling Act reads:

'The convention shall also publish a report to the people explaining its proposals.'

Resolution 11 of the Constitutional Convention provides in pertinent part:

'Section 2. (1) The Secretary of State is hereby requested to requisition the Purchasing Division of the Department of Administration to call for bids for the printing of the proposed Constitution with comments and report to the people as required by subsections (4) and (5) of Section 17 of the Constitutional Convention Enabling Act, which shall be printed in the form prescribed by the Convention.'

Attached to Resolution 11 is a requisition form prescribing the form, number of copies, and distribution of the copies required.

Pursuant to the foregoing authority, the secretary of state has caused to be printed and distributed 400,000 copies of the proposed constitution with comments and report to the people. The costs incurred to date for this item are $12,016.89. This publication is similar in size to the family supplement contained in the Sunday editions of our daily newspapers, consists of 24 pages, in color, an contains the following: sample ballot; history and highlights of the proposed constitution; the proposed constitution with comments; the preamble; the verbatim provisions of the proposed constitution, article by article with comments, and a comparison with the existing constitution indicating what provisions are retained from the present constitution and what new provisions have been added in the proposed constitution; a transition schedule from the present constitution to the proposed constitution in the event the latter is approved by the people at the constitutional referendum election; the adoption schedule; deletions from the present constitution in the proposed constitution; the officers and delegates of the Constitutional Convention by districts with mailing addresses; and the places where additional copies of the publication can be secured.

Relator does no attack the expenditure of public funds by the secretary of state for publication and distribution of this publication for voter information. Relator's attack is directed solely at expenditures of public funds by the voter education committee for employing an advertising agency, newspaper advertisements, radio and television programs, production and distribution of a 15-minute film on convention activities and proposals relative to the proposed constitution, a slide presentation, adminstrative expenses, and other voter education expenditures.

The original proceeding now before this Court was filed by relator Oscar S. Kvaalen on April 7, 1972, with supporting brief. It is a class action by relator on behalf of Montana citizens and residents who are payers of state taxes against nineteen Constitutional Convention delegates who comprise the voter education committee of the Constitutional Convention pursuant to Convention Resolution 14. The state auditor and state treasurer, whose official duties encompass the expenditure of public funds, are named as nominal defendants.

Relator seeks a declaratory judgment of this Court that:

(1) The powers and authority of the Constitutional Convention became functus officio and ceased to become effective upon its adjournment sine die at noon on March 24, 1972;

(2) Resolution 14 of the Constitutional Convention is in excess of the Convention's jurisdiction and power, and is illegal insofar as it purports to delegate to the voter education committee any powers or authority of the Convention;

(3) The voter education committee has no right, standing, power, or authority to receive or expend any federal funds received for the purposes of the Convention;

(4) The...