Stop over Spending Montana v. State

• Decision Date: 07 August 2006
• Docket Number: No. DA 06-0437.,DA 06-0437.
• Citation: 139 P.3d 788,2006 MT 178
• Parties: STOP OVER SPENDING MONTANA, a political committee; Trevis Butcher, individually and as Political Committee Treasurer; Scott Mendenhall, individually and as Political Committee Chairman, 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 Appellants.
• Court: Montana Supreme Court

Page 788

139 P.3d 788

2006 MT 178

STOP OVER SPENDING MONTANA, a political committee; Trevis Butcher, individually and as Political Committee Treasurer; Scott Mendenhall, individually and as Political Committee Chairman, 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 Appellants.

No. DA 06-0437.

Supreme Court of Montana.

Submitted on Briefs: July 19, 2006.

Decided: August 7, 2006.

Hon. Mike McGrath, Attorney General; Anthony Johnstone and Pam D. Bucy, Assistant Attorneys General, Helena, for Appellants.

Chris J. Gallus, Attorney at Law, Helena, for Respondents.

Elizabeth L. Griffing, Attorney at Law, Missoula, James P. Reynolds and David K.W. Wilson, Jr., Reynolds, Motl & Sherwood, P.L.L.P., Helena, (for "Not in Montana: Citizens Against CI-97"), for Amicus.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 A committee called Stop Overspending Montana (Proponents) petitioned for the adoption of Constitutional Initiative No. 97. The basic effect of the initiative is to amend Article VIII, Section 9 of the Montana Constitution to include an additional limit on appropriations by the Legislature to an amount that is determined by applying a formula based on the growth rate of the population and inflation unless the increase is approved by the electorate.

¶ 2 The material facts in this litigation are not disputed. Proponents' petition to place CI-97 on the ballot was approved by the Secretary of State, as required by Title 13, Chapter 27, Parts 2 and 3, MCA. It then was transmitted to the Attorney General as required by § 13-27-312, MCA. The Attorney General, after approving the petition as to form, sought and obtained the advice of parties on both sides of the issue as well as unsolicited comments from others. In addition, as CI-97 has a fiscal impact, it was submitted to the budget director for preparation of a fiscal note.

¶ 3 In compliance with §§ 13-27-312(2)-(3), MCA, the Attorney General prepared separate statements explaining the purpose of the measure, the implications of a vote for and a vote against the measure, and a fiscal statement.

¶ 4 Proponents were dissatisfied with the statements prepared by the Attorney General. They timely filed a complaint in the District Court for the First Judicial District, Lewis & Clark County, requesting the Court to alter all three of the Attorney General's statements; that is, the statement explaining the purpose of the measure, the statements of the implications of a vote for and a vote against the measure, and the fiscal statement.

¶ 5 The Attorney General was served with the complaint. He did not immediately answer. Proponents did not move the District Court to expedite the court action.¹ Proponents immediately proceeded to print petitions calling for the adoption of CI-97 and started collecting signatures. The petitions which registered voters have signed contain the statements prepared by the Attorney General.

¶ 6 After a hearing, the District Court promptly considered the questions presented and entered its Decision and Order on June 14, 2006. The District Court determined that the statement of the purpose of CI-97 drafted by the Attorney General was not true and accurate, the statements of implication drafted by the Attorney General were not true and, likewise, the fiscal statement drafted by the Attorney General was inaccurate and, consequently, untrue. The District Court rewrote all of the statements, and ordered that its amended statements be placed on the ballot concerning CI-97, should the measure become qualified for submission to the electorate.

¶ 7 The District Court also rejected the Attorney General's argument that § 13-27-312, MCA, requires that the statements on the petitions that are circulated and those on the ballot be the same. As a result, it declined to invalidate the signatures already gathered on petitions which do not contain the court's revised statements.

¶ 8 The Attorney General appealed the District Court order. This Court ordered expedited briefing, and has advanced this case on its calendar.

¶ 9 The order of the District Court is reversed.

¶ 10 Mixed questions of law and fact are presented to this Court when the historical facts of a case are admitted or established, the applicable law is undisputed, and the issue is whether the facts satisfy the statutory standard. State v. Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352, ¶ 21, 114 P.3d 254, ¶ 21 (citing Lambert v. Blodgett (9th Cir.2004), 393 F.3d 943, 965 (citing Pullman-Standard v. Swint (1982), 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66, 80)). The statements prepared by the Attorney General are before the Court, and there is no dispute which statutes apply. The issues in this case present mixed questions of law and fact. This Court reviews mixed questions of law and fact de novo. Duffy v. State, 2005 MT 228, ¶ 10, 328 Mont. 369, ¶ 10, 120 P.3d 398, ¶ 10.

¶ 11 Section 13-27-312(4), MCA, contains the requirements for drafting statements of purpose and implication:

The statement of purpose and the statements of implication must express the true and impartial explanation of the proposed ballot issue in plain, easily understood language and may not be arguments or written so as to create prejudice for or against the measure. Statements of implication must be written so that a positive vote indicates support for the measure and a negative vote indicates opposition to the measure.

¶ 12 The Attorney General has been designated by the Legislature as the public official who is to prepare the statements at issue. As long as the Attorney General's explanatory statement uses ordinary plain language, explains the general purpose of the issues submitted in language that is true and impartial, and not argumentative or likely to create prejudice either for or against the issue, the requirements of the law are met. State ex rel. Wenzel v. Murray (1978), 178 Mont. 441, 448, 585 P.2d 633, 637. If the proponents of a ballot measure believe that the statements prepared by the Attorney General do not satisfy the requirements of § 13-27-312, MCA, they may challenge the adequacy of the statements in the First Judicial District Court, Lewis & Clark County. Section 13-27-316(1), MCA.

¶ 13 The statement of purpose prepared by the Attorney General reads:

The Montana Constitution currently prohibits appropriations by the legislature that exceed anticipated revenue. This measure adds a constitutional spending limit that would prohibit increases in appropriations greater than the combined growth rate of population and inflation. It allows appropriations up to the largest spending limit for any previous biennium. Emergencies, debt payments, pro-rata tax rebates, various appropriations expressly provided by the Montana Constitution, and expenditures from funding sources including the federal government, constitutionally created trusts, and certain user fees are not included in the spending limit. The legislature may exceed the spending limit only with voter approval.

¶ 14 The District Court did not determine that the Attorney General failed to use easily understood language in the statement of purpose or that it was written so as to create prejudice for or against the measure. The District Court determined that the Attorney General's statement is inaccurate in referring to the growth rate of population and inflation, rather than a change in those factors, as reflected in the text of the measure. It also determined the Attorney General's statement omitted salient provisions of the measure and, consequently, was not a true explanation of the measure. The District Court then rewrote the statement of purpose and certified its statement to the Secretary of State.

¶ 15 The District Court was incorrect when it determined that the Attorney General's statement of purpose is inaccurate in referring to the growth rate of population and inflation rather than a change in these factors. It is the purpose of the initiative to limit the ability of the Legislature to increase appropriations greater than an amount that is to be determined by considering any growth in Montana's population, and also considering inflation, a factor that takes into account any increase in the costs of goods and services. The measure does not provide that the legislature must decrease appropriations in the event Montana's population decreases or deflation occurs. Thus, the statement of purpose drafted by the Attorney General is not inaccurate.

¶ 16 The District Court also determined that the Attorney General's statement of purpose omits "salient provisions" of the measure and, therefore, is not a true explanation of it. The District Court's rewritten statement, similar to that drafted by the Attorney General, refers to items that are not included in the limit. What the District Court added to the statement of purpose were statements that any Montana resident or business could sue to enforce the new measure, could recover costs and fees if the suit is successful, and that the new limit would apply to the next Legislature. In order to add these statements and remain within the statutorily-mandated 100-word limit, the District Court changed the first sentence of the Attorney General's statement and shortened the statement of items exempted from calculating the limit that is imposed on new appropriations.

¶ 17 We decline to hold, in this instance, that the statement of the Attorney General is untrue and biased because it does not say a lawsuit may be brought to enforce it, and that it will, if adopted, be binding on the next Legislature. Section 13-27-312(2)(a), MCA, requires the Attorney General, after seeking comments, to prepare a statement of the purpose of the measure containing not more than 100 words. Necessarily, a complete description of every part of the...