MAHONEY v MURRAY

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No 12255 I N THE SUPREME COURT OF THE STATE O M N A A F OTN 1972 CHARLES H MAHONEY, Relator, FRANK MURRAY, S e c r e t a r y of S t a t e , S t a t e o f Montana, Respondent. ORIGINAL PROCEEDING: For R e l a t o r : P h i l i p W S t r o p e , argued, Helena, Montana. Robert L Woodahl, A t t o r n e y General, Helena, Montana. John C Connor, A s s i s t a n t A t t o r n e y General, Helena, Montana. Lawrence D Huss, argued, A s s i s t a n t A t t o r n e y General, Helena, Montana. For Respondent : John Risken, argued, Helena, Montana. Amicus Curiae: Wesley Wertz, argued, Helena, Montana. Submitted: A p r i l 7 , 1972 Decided: APR F i l e d : ApR 2 11 % 9 2 11 m Mr. J u s t i c e Wesley Castles delivered the Opinion of the Court. This i s an original proceeding seeking a w r i t of mandamus directing the Secretary of S t a t e t o receive and f i l e a declaration of nomination f o r public o f f i c e , t h a t of S t a t e Treasurer, by the r e l a t o r . On ex parte appli- cation, t h i s Court issued i t s order of April 3, 1972, accepting j u r i s d i c t i o n , ordering the Attorney General t o be joined as a r e l a t o r , and s e t t i n g the matter f o r hearing on April 7, 1972. Relator Charles H. Mahoney i s a resident c i t i z e n of Jefferson County, Montana, and a qualified e l e c t o r . Relator was elected on November 2, 1971, from D i s t r i c t 12, comprising Jefferson, Broadwater and Lewis & Clark counties, as a member of the Constitutional Convention. Relator was elected as an Independent candidate. The Constitutional Convention was called by the Forty-second Legislat i v e Assembly, Chapter 296, Laws of Montana 1971, as amended by Chapter 1 of the F i r s t Extraordinary Session of the Forty-second Legislative Assembly. The amendments came about as a r e s u l t of the case "The Forty-second Legisl a t i v e Assembly of the S t a t e of Montana, and Frank Murray, Secretary of S t a t e of the S t a t e of Montana v. Joseph L. Lennon, Clerk and Recorder of Cascade County, Montana", reported i n 156 Mont. 416, 481 P.2d 330, and herei n a f t e r referred t o as the Lennon case. The Convention assembled, and i t s members were sworn with Relator Mahoney a member, in an organizational meeting on November 29, 1971. There- a f t e r , the Convention assembled again in plenary session on January 1 7 , 1972. I t continued t o meet until noon on March 24, 1972, when, a f t e r motion made and c a r r i e d , i t "adjourned sine die". Respondent Frank Murray i s Secretary of S t a t e whose duties a r e s e t f o r t h i n Art. VII, Sec. 1 , of the Montana Constitution, and in section;82-2201, e t . seq., R.C.M. 1947. These duties include the f i l i n g of declarations of nomi- nation f o r public o f f i c e . Respondent Frank Murray i s the same public o f f i c e r who as a party sought declaratory judgment in the Lennon case. - 2 - Robert L. Woodahl, Attorney General of Montana, because of the constitutional issues involved, was ordered joined as a re1 a t o r . Attorney -General Woodahl , on January 28, 1972, had, i n response t o a request by the President of the Convention, issued an opinion appearing in Volume No. 34 of Attorney General ' s Opinions as Opinion No. 34, in regard t o the el i g i b i l i t y of members of the Convention t o become p o l i t i c a l candidates in the year 1972. Briefly, and we acknowledge before any f a c t s concerning adjourn- ment, election dates f o r Convention proposals, completion of work, or anything e l s e , the opinion s t a t e d t h a t members could, a f t e r adjournment s i n e d i e , serve i n any public o f f i c e . Because t h a t opinion was rendered, i t appeared the Attorney General should a l s o be a r e l a t o r . Five days a f t e r the previously mentioned "adjournment s i n e d i e " , Rel a t o r Mahoney attempted t o f i l e his declaration of nomination and f i l i n g f e e f o r the o f f i c e of S t a t e Treasurer. The Secretary of S t a t e refused t o accept the f i l i n g and advised Relator Mahoney t h a t his f i l i n g was refused as he was a duly elected member or delegate of the Constitutional Convention, " *** since the Montana Supreme Court i n [the Lennon case] appears t o hold t h a t a Member of the Constitutional Convention i s a public o f f i c e r coming within the Constitutional provisions prohibiting publ i c o f f i c e r s from simultaneously holding more than one publ i c o f f i c e . " Fol 1owing t h i s occurrence, the present action was commenced by Re1 a t o r Mahoney. This Court accepted original j u r i s d i c t i o n , a t l e a s t in p a r t , due t o the f a c t t h a t the f i l i n g date f o r candidates f o r nomination f o r election t o public o f f i c e expires on April 27, 1972, and in fairness t o a l l , time i s short. Respondent Murray appeared by answer. The answer s e t up three de- fenses, e s s e n t i a l l y ( 1 ) t h a t there was no claim f o r r e l i e f s t a t e d ; ( 2 ) t h a t the purported "adjournment sine die" was not an adjournment i n the sense of a "termination" in t h a t the Convention adopted i t s Resolution No. 14 which perpetuates t h e Convention f o r an i n d e f i n i t e t i m e i n t h e f u t u r e by c r e a t i n g a committee w i t h f u l l a u t h o r i t y t o manage and conclude a l l o f t h e Convention's procedural, a d m i n i s t r a t i v e , and v o t e r education a f f a i r s , and t o spend funds o f t h e Convention whether a p p r o p r i a t e d by t h e 1e g i s l ature, r e c e i v e d from f e d e r a l funds o r otherwise; and ( 3 ) t h a t R e l a t o r Mahoney i s p r o h i b i t e d from h o l d i n g two c i v i l o f f i c e s by A r t . V, Sec. 7, o f t h e Montana C o n s t i t u t i o n and t h i s C o u r t ' s d e c i s i o n i n Lennon. Oral argument was had w i t h argument by counsel f o r R e l a t o r Mahoney, Re1a t o r Woodahl , Respondent Murray and by Amicus Curiae Wesl ey W. Wertz. The p e t i t i o n o f R e l a t o r Mahoney seeks a w r i t o f mandamus and a reasona b l e a t t o r n e y fee. The answer and b r i e f o f Respondent Murray would challenge t h e remedy o f mandamus as being an improper remedy i n any event. dwell here on t h e appropriateness o f t h e remedy. W need n o t e Whether mandamus would be an a v a i l a b l e and proper remedy would depend on whether R e l a t o r Mahoney i s qua1 if i e d t o f i l e f o r p u b l i c o f f i c e , n o t w i t h s t a n d i n g t h e r e f u s a l o f Respondent Murray. The b a s i c question, t h e r e f o r e , i s whether a t t h e t i m e o f a t t e m p t i n g t o f i l e f o r o f f i c e R e l a t o r Mahoney was s t i l l a d e l e g a t e and one who does p r e s e n t l y " h o l d any p u b l i c o f f i c e " w i t h i n t h e meaning o f t h i s C o u r t ' s o p i n i o n i n Lennon. P u t t i n g t h e f i r s t p a r t o f t h e b a s i c q u e s t i o n another way, does a delegate have a term o f o f f i c e ? H e r e i n a f t e r a l l references t o A r t i c l e s s h a l l be t o t h e C o n s t i t u t i o n o f Montana. Chapter 1 o f t h e F i r s t E x t r a o r d i n a r y Session, Vol. 11, Laws o f Montana 1971, amending Chapter 296, Laws o f Montana 1971, s h a l l be r e f e r r e d t o h e r e i n as t h e Enabling Act. A r t . X I X , Sec. 8, provides: "The l e g i s l a t i v e assembly may a t any time, by a vote o f t w o - t h i r d s o f t h e members e l e c t e d t o each house, submit t o t h e e l e c t o r s o f t h e s t a t e t h e q u e s t i o n whether t h e r e s h a l l be a convention t o r e v i s e , a1 t e r , o r amend t h i s c o n s t i t u t i o n ; and i f a m a j o r i t y o f those v o t i n g on t h e question s h a l l d e c l a r e i n f a v o r o f such convention, t h e l e g i s l a t i v e assembly s h a l l a t i t s n e x t session prov i d e f o r t h e c a l l i n g t h e r e o f . The number o f members o f t h e convention s h a l l be t h e same as t h a t o f t h e house o f r e p r e s e n t a t i v e s , and they s h a l l be e l e c t e d i n t h e same manner, a t t h e same places, and i n t h e same d i s t r i c t s . The l e g i s l a t i v e assembly shall in the a c t calling the convention designate the day, hour and place of i t s meeting, f i x the pay of i t s members and o f f i c e r s , and provide for the payment of the same, together with the necessary expenses of the convention. Before proceeding the members shall take an oath to support the constitution of the United States and of the s t a t e of Montana, and to f a i t h f u l l y discharge t h e i r duties as members of the convention. The qualifications of members shall be the same as of the members of the senate, and vacancies occurring shall be f i l l e d in the manner provided f o r f i l l ing vacancies in the l e g i s l a t i v e assembly. Said convention shall meet within three months a f t e r such election and prepare such revisions, a1 terations or amendments to the constitution as may be deemed necessary, which shall be submitted to the electors f o r t h e i r r a t i f i c a t i o n or rejection a t an election appointed by the convention f o r t h a t purpose, not less than two nor more than six months a f t e r the adjournment thereof; and unless so submitted and approved by a majority of the electors voting a t the election, no such revision, a1 teration or amendment shall take e f f e c t . " Art. V, Sec. 7 provides: "No senator or representative s h a l l , during the term f o r which he shall have been elected, be appointed to any c i v i l office under the s t a t e ; and no member of congress, or other person holding an office (except notary publ i c , or in the mi 1i t i a ) under the United States or t h i s s t a t e , shall be a member of e i t h e r house during his continuance in office." Art. VII, Sec. 4, referring to s t a t e offices of governor, secretary of s t a t e , attorney general , treasurer, audi t o r , superi ntendent of publ i c instruction and lieutenant-governor, s t a t e s in part: " * * * N o f f i c e r mentioned in t h i s section shall o be e l i g i b l e t o , or hold any other public o f f i c e , except member of the s t a t e board af educatIion during his term of office." Art. VIII, Sec. 35, prohibits justices of the supreme court and judges from holding other public office while he remains in office. In the Enabling Act i t i s provided, i n Section 2 , t h a t the number of delegates shall be the same as provided f o r the election of members of the house of representatives and Section 3 provides t h a t the qua1 i f i c a t i o n s of delegates shall be the same as t h a t of members of the s t a t e senate. Section 4(1) s t a t e s : "Delegates to the constitutional convention shall be elected in the same manner as members of the house of representatives * * *." Section 5 requires the constitutional oath of office required by Art. XIX, Sec. 1. Section 6 provides f o r vacancies to be f i l l e d in the same manner as for l e g i s l a t i v e vacancies. Section 7(6) s t a t e s : " I t shall be the duty of the delegate elected to assemble in plenary session in the chambers of the house of representatives in the s t a t e capitol building i n the c i t y of Helena, a t 10:OO a.m. on January 17, 1972. The convention, which may recess from time t o time, shall then remain in session as long as necessary." ' Section 16 refers to pay and expenses as the same as l e g i s l a t o r s and in subs. (4) refers to "officers and employees of the s t a t e and i t s political subdivisions who are not prohibited by the Montana Constitution or Laws of Montana from serving as delegates ** *.I1 Section 21 provides for appropriations f o r the biennium ending June 30, 1973. Section 24 provides f o r repeal of the Enabling Act on June 30, Relator Mahoney contends that his "term" expired on adjournment sine die on March 24, 1972. Respondent Murray contends the term i s f o r two years, the same as t h a t of a representative, beginning January 17, 1972 and ending January 17, 1974. Respondent Murray's position i s essentially correct since the term continues to run until the repeal of the Enabling Act on June 30, Referring now to the Enabling Act, the Legislature's intent seems clear. Delegates were elected f o r a term ending on repeal of the a c t ; funds were provided until repeal of the act; the convention could remain in session "as long as necessary" subject to the repealer clause; i t s duties continued through submission of i t s proposals to the people a t an election to be held a f t e r "adjournment" within a specified time as specified in Art. XIX, Sec. 8; i t s members or delegates were to be paid and treated in a l l other respects in the same manner as l e g i s l a t o r s , particularly as house of representative members. In Lennon a t page 422 of 156 Mont. t h i s Court said: "Directing our attention to the f i r s t issue before us f o r determination, w find that i t contains two questions e which we answer as follows: "Any s t a t e and local officers who are prohibited by the constitution or laws of Montana from holding more than one office may not serve as delegates to the constitutional convention. A delegate t o the cons t i tutional convention i s a ' s t a t e o f f i c e r ' holding a publ i c office of a civil nature. "These r e s t r i c t i o n s prevent such officers from holding any other 'public o f f i c e ' or ' c i v i l o f f i c e ' of the s t a t e , these two terms are synonymous. State ex re1 . Barney v. Hawkins, 7 9 Mont. 506, 257 P. 411. * * *" This Court went on t o say: "In our view delegates to a constitutional convention also ' possess a delegation of a portion of the sovereign power of government, to be exercised f o r the benefit of the publ i c ' satisfying requirement ( 2 ) of Barney. Plaint i f f s and relators argue that t h i s requirement i s not s a t i s f i e d , drawing a distinction between officers of the executive, l e g i s l a t i v e and judicial branches of the s t a t e government and delegates to a constitutional convention who act as agents of the people occupying no position in any recognized branch of s t a t e government. Our attention has been directed to several cases from other s t a t e s upholding such distinction under t h e i r particular s t a t e history and the particular provisions of t h e i r s t a t e cons t i t u t i o n s . These cases are not persuasive as applied to the present controversy in Montana, being distinguishable on the basis of such factors as historical considerations peculiar to such s t a t e , legislative precedent, existing rather than proposed legislation, inherent .legislative powers t o call a constitutional convention, different constitutional provisions, and dissimilar issues presented f o r decision [citing cases] * * *. " delegate to the constitutional convention exercises A sovereign powers of a l e g i s l a t i v e character of the highe s t order. That the final product of such l e g i s l a t i v e authority i s subject to referendum, renders i t no less an exercise of sovereign power. The delegation of unlimited power i s not essential to the exercise of sovereign power. To draw a distinction between other s t a t e officers and delegates to a constitutional convention, both of whom a c t as agents of the people exercising sovereign powers in t h e i r behalf , i s to deny our basic concept of government." "The purpose of the Montana cons t i t u t i onal r e s t r i c t i o n s against certain officers serving as delegates to a constitutional convention i s readily apparent. I t i s to insure independent consideration by the delegates of the provisions of the new constitution, to reduce concentration of pol i t i c a l power a t the constitutional convention by el iminating as delegates incumbent off ice holders , and to foreclose the possibility of such officers creating new offices f o r themselves or increasing the salaries or compensation of t h e i r own offices. See Kederick v. Heintzleman, D. C . , 132 F.Supp. 582, f o r the expression of similar principles in prohibiting a s t a t e senator from f i l i n g f o r the position of delegate to the Alaskan constitutional convention. These considerations cannot be given e f f e c t unless a delegate to the constitutional convention holds a 'public o f f i c e ' thereby placing h i m within the ambi t of constitutional prohibitions. "Requirement ( 5 ) of Barney t h a t an office must have some permanency and continuity and not be only temporary or office-' i s occasional in order to cbnstitute a ' ~ u b l i c s a t i s f i e d in the case of a delegate to the constitutional convention. This requirement i s a r e l a t i v e matter and must be interpreted in the l i g h t of the purposes f o r which the position was created. A delegate to the constitutional convention holds his position f o r the e n t i r e period of time the constitutional convention i s in session. His position i s permanent and continuous in the sense t h a t i t continuously exists until the duties f o r which i t was created have been completed. I t i s not temporary or occasional in that i t i s a f u l l time position for the length of time required f o r completion of the convention's work. While i t i s true t h a t constitutional conventions are ca1 led b u t seldom, when a particular constitutional convention i s called the delegates are elected f o r t h a t particular constitutional convention alone and the convention possesses permanency and continuity until i t s purpose i s completed; there i s nothing temporary or occasional in the work of i t s delegates while the convention i s i n session and carrying out i t s duties. Contemporary experience notwithstanding, a public position need not be conceived and created in perpetuity in order to qualify as a pub1 i c office." (Emphasis suppl ied. ) The foregoing underlined words [while] in session, are the words t h a t Relator Mahoney stresses on his contention that adjournment sine die ends his status or position. However, that connotation cannot be placed on the meaning of the two words "in session" as used in Lennon. Court did not have before i t the situation we have now. almost the reverse. There the Rather, we have The same purposes of the constitutional prohibitory language referred to above apply equally to Constitution Convention members. While we recognize t h a t there may be some argument made t h a t a s t a t e treasurer does not have policy making functions, yet the same purposes of the prohibitions apply t o a l l constitutional o f f i c e r s . B our analysis of the Enabling Act, y the Constitutional Articles pertinent, and our language i n Lennon, we find the prohibitions applicable. W also find by the 1anguage and analysis t h a t the 'term' of the e prohibition goes on t o the repeal of the Enabling Act. Again, we give recognition t o overall i n t e n t of the l e g i s l a t u r e t o t r e a t i n g the members of the Convention as Legislators. The Enabling Act was drafted and enacted w i t h Lennon and i t s language as the declaratory judgment guide t h a t i t was. So f a r we have discussed the basic question in the l i g h t of the Enabling Act, the Constitution, and the Lennon judgment in the main. we look t o the Convention's actions. NOW, W referred before t o the motion made e and carried t h a t the Convention "adjourned s i n e die". Amicus argues t h a t , previously quoted Art. XIX, Sec. 8 , provision s e t t i n g the l i m i t s of an election f o r submission of proposals t o the people, requires by i t s language an "adjournment" with a f i n a l i t y o r termination of a l l functions, or t h a t i t become functus o f f i c i o , before an election can be held on June 6 , 1972. It seems plain t o a s t h a t an adjournment referred t o in Art. XIX, Sec. 8 , need not have t h a t f i n a l i t y with respect t o a l l functions, but only with respect t o f i n a l i t y of the revisions, a1 terations or amendments t o t h e constitution t o be submitted t o the e l e c t o r a t e . A t any r a t e , the Convention, on March 16, 1972, passed i t s Resolution No. 14 which, among a l l of the other proceedings of the Convention, i s a matter of record i n Respondent Murray's o f f i c e . Respondent Murray does not question the v a l i d i t y o r l e g a l i t y of Resolution No. 14. Resolution No. 14 i s as follows: "WHEREAS, the Montana Constitutional Convention has nearly completed i t s substantive a c t i v i t i e s and i s making arrangements f o r adjournment s i n e d i e i n order t o meet i t s election date commitment of June 6 , 1972; and "WHEREAS, p r i o r t o adjournment s i n e d i e t h e Convention will not be able t o complete i t s procedural, administrative and voter education a f f a i r s , a l l of which must be concluded in an orderly and responsible manner; and "WHEREAS, the Convention anticipates t h a t i t will need t o establish an appropriate committee t o manage and conclude a l l of i t s procedural, administrative and voter education a f f a i r s a f t e r adjournment sine d i e ; "NOW, THEREFORE, IT IS RESOLVED BY THE CONSTITUTIONAL S CONVENTION OF THE STATE OF MONTANA A FOLLOWS: "1. The Convention hereby creates a committee t o a c t with the President of the Convention on i t s behalf a f t e r adjournment s i n e d i e , delegating t o i t f u l l authority t o manage and conclude a l l of the Convention's procedural, administrative and voter education a f f a i r s , and t o spend the Convention's funds therefore, b u t only within the l i m i t s of i t s appropriation and such other funds as the Convention may have. "2. The Convention hereby appoints t o s a i d committee the President, Leo Graybill, J r . , who shall a c t as i t s 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 S c h i l t z , Thomas Joyce, George Harper, Bill Burkhardt, Jerome Loendorf, Oscar Anderson, Gene Harbaugh. o " 3 . N delegate may serve on the committee who shall seek public o f f i c e in t h e primary election t o be held on June 6 , 1972. The President, as chairman of the committee, shall have authority t o s u b s t i t u t e other Convention delegates f o r any committee members named herein who may decide t o seek public o f f i c e . "4. The Convention hereby delegates authority t o the committee t o receive, disburse and account f o r a l l Federal funds which the Convention may receive. "5. The Convention a l s o delegates authority t o the committee t o supervise and e d i t any and a l l voter education materials prepared on behalf of the Convention 6r by other persons r e l a t i v e t o the work of the Convention. "6. The committee shall terminate i t s work a t such time as a1 1 of the Convention's procedural , administrative and educational a f f a i r s have been completed, and a l l requirements of t h e Enabling Act have been met." In the Resolution the Convention s t a t e s t h a t i t will not be able t o complete i t s procedural, administrative or voter education a f f a i r s and i t i s necessary t o create a Committee. From a reading of Section 1 , i t i s obvious t h a t the Convention continues t o e x i s t . The Committee a c t s on behalf of the Convention, in i t s place and stead. I t c a r r i e s on until the procedural, administrative and voter education a f f a i r s a r e concluded, and the money appropriated t o i t has been spent. These p a r t i c u l a r items of business a r e substantial parts of the business of the Committee and the Convention. It would appear t h a t the only thing t h a t the Committee cannot do t h a t the Convention did i s propose f u r t h e r constitutional provisions or change o r modify those proposed. Convention. Other than t h a t , the Committee has a l l of the power of the This i s the way t h a t Respondent Murray interpreted t h e Resolution. Anticipating t h a t a delegate might wish t o seek a public o f f i c e , the Convention adopted Section 3 of Resolution 14. I t i s agreed t h a t Mahoney was not a member of the Committee appointed by t h i s Resolution, but i t i s of i n t e r e s t t o note t h a t the Convention anticipated t h a t some of i t s members might d e s i r e t o go on t o other public o f f i c e , in s p i t e of the f a c t t h a t the business of the Convention was not f i n ished. Not only did the Convention perpetuate i t s e l f , b u t i t opened the door f o r members who aspired t o other offices. The Committee, in Section 4, has c a r t e blanche authority as t o the money, Federal or t h a t l e f t over from the Convention. W can see no d i f f e r e ence in what the Convention was doing before March 24, 1972, and what the Committee was authorized t o do, other than making proposals f o r inclusion i n the new constitution. The f i n a l provision of Resolution 14, Section 6 , s t a t e s : "The committee shall terminate i t s work a t such time as a1 1 of the Convention's procedural , administrative and educational a f f a i r s have been completed, and a l l requi rements of the Enabl ing Act have been met . w s suppl ied .) W emphasize here t h a t we are not concerned i n t h i s case about the e v a l i d i t y and l e g a l i t y of Resolution No. 14. In what we shall r e f e r t o as a companion case, #12260, S t a t e ex re1 . Kvaalen v . Leo Graybill, J r . , e t a1 . , the v a l i d i t y of Resolution No. 14 i s an issue. For t h i s additional reason, the contents of Resolution No. 14, Rel a t o r Mahoney's s t a t u s as a delegate i s continuing whether he, as an individual, has any duties or not. The f a c t i s t h a t the Convention, of which he i s a member, s t i l l i s i n existence, a1 bei t adjourned. Accordingly, we find t h a t Relator Maho.ney now holds a public o f f i c e , and he i s p r o h i b i t e d by t h e C o n s t i t u t i o n from h o l d i n g another p u b l i c office. His term has n o t expired, and he continues t o be a delegate t o t h e Convention. Respondent Murray was c o r r e c t i n r e f u s i n g t o f i l e t h e d e c l a r a t i o n f o r nomination, and t h e p e t i t i o n f o r a w r i t o f mandamus i s denied. ~ s s o c a t e ustice J

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