COBB v STATE
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No. 96-327 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding. COUNSEL OF RECORD: For Appellant: Joseph P. Mazurek, Attorney General, Kimberly A. Assistant Attorney General, Helena, Kradolfer, Montana; Garth Jacobson, Office of the Secretary of Helena, Montana State, For Respondent: John Cobb, Augusta, Montana Submitted on Briefs: Decided: Filed: July 18, September 1996 26, 1996 Justice William E. Hunt, Appellant First State Judicial the 37, of which office the sought of from Lewis and Clark presenting legislative of an order affirming to which appended. This the of 18, the opinion County, Court. of the enjoining electors known an official as Senate Bill to eliminate 1996, this District explains the decision Constitution On July judgment of the referendum state. the Opinion appeals to amend the Montana secretary is the (State) Court, state containing delivered of Montana District secretary ballot Sr. Court Court, the the issued a copy reasons for of that order. The 1995 session 37 as a referendum November its to final to of the to Lieutenant transferred assigning office to them much power in However, to the secretary of Montana the to the of Two of officials, the Lieutenant one of the state Constitution Senate electorate sought all were but to Bill during to of secretary that state the amend the of state. three of remaining to legislative concern would concentrate Governor the be transferred the due Governor's of provided secretary Governor.. other the the office measure of to passed The referendum eliminate the form, duties the election. Constitution Legislature be presented 1996 general Montana In of the Montana duties would be that too office. duties which was overlooked. is constitutionally Article IV, assigned Section provides: If [an] election on an initiative or referendum properly qualifying for the ballot is declared invalid because the election was improperly conducted, the secretary of state shall submit the issue to the qualified electors at the 2 7(3) next regularly scheduled statewide election legislature orders a special election. Senate from Bill the 37 did duty passage of bill's and the this section transfer of 37 by this legislature, the secretary to the referendum that because the prevent to the injunction and statements Court unclear not the should violated of electorate. of implication bill concluded the Court concluded misleading because secretary reference of to The not they state the that did its not not of Court passage be granted were the one title appeals of the statements of the unclear bill-one transferred state determined leave a defect flawed in determination flawed for the Court's reason given, we 3 need referendum the that was that the Cobb Senate Bill Because respects. not one constitution Representative constitutionally District that of constitution. the determination the were election. and other the one duty or the in by another decision, that in that bill implication anywhere, remained bill the that the However, voters Court's affirm District concluded rule. inform except this formal subject would be remedied the further the was not District State cross-appeals It bill-one secretary because could one the In addition, that or misleading. violate District 37 is of rule. was not which for Bill suit the title misleading, faulty deletion provide Senate filed Cobb alleged The District the Cobb submitting the the the office. John Representative did it the from subject did another Representative because nor for to Following and provide constitution, particular state not unless bill consider is we fatally whether it contains other issues errors raised Section in as well. the We therefore will not consider the cross-appeal. 3-5-302(6) (a), MCA, provides: [Al 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 1327-308, 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. Representative alleged Cobb brought that the constitutional State defect. points referenda the proposed out are defect within ballot that complained of is agreed. is allowed intervention in referenda to It a substantive review and On appeal, disfavor. judicial provided a challenges with not 30 days contains Court pre-election viewed the issue The District generally no pre-election suit the initiatives also one, under substantive or argues and, that therefore, ยง 3-5-302(6) (a), MCA. Judicial election is not As this encouraged. or initiatives Court prior to an has noted, to effectively protect and preserve the right which Montanans have reserved to themselves to change the laws preof this State through the initiative process, judicial review should not be routinely election conducted. State ex rel. P.2d 375, only proper submitted Boese 370. where under v. The the the Waltermire State (1986), contends initiative election that or laws 4 224 Mont. 230, such referendum was or where the 730 review judicial 234, is not initiative properly was unconstitutional on its the of Preservation 224 Mont. 273, Montana 296, 729 submission 37 is the 1283, Association 1297; of Further, 729 P.2d the not contends that Citizens for v. See also P.2d (1986), is Under pre-election 224 an that these Mont. improper not concluded face. ex rel. Here, and for (1986), State 375. alleged on its Citizens Waltermire Waltermire specifically unconstitutional State the not Montana al. 1285. 730 was Court et v. Boese -I bill District ex rel. Rights Board P.2d State Citizens' 276, School face. issue. Senate Bill circumstances, judicial review is not Rights and appropriate. Montana the other point. similar All are jurisdiction being addressed to Court of cases original in a that, the judicial constitutional unconstitutional defect, Court and are is its not the which this reason ignores in face. matter was before whether Furthermore, we have in the Court to exist to do exercised past; grant they relief so. on Beyond (a), involving a substantive the measure Cobb alleged cases where Representative 5 first 5 3-5-302(6) cases just original comes appropriate. for on issue determining such petitions of in not assume District reasons argument strictly the the ability review to Here, sufficient on was asked not court. the the are without and granted should State's Court jurisdiction foreclose Citizens' challenge, by list of State We therefore original grounds this the district decided merely other by a pre-election jurisdiction no way allows where by and Preservation cited on appeal. assumption these cases over presented this cases the MCA, which is a substantive constitutional pre-election challenges nevertheless permitted defect will in be the referendum. closely under the plain While such they are scrutinized, language of 5 3-5-302(6)(a), MCA. The State nevertheless.argues enjoining the presentation The State contends that case because the defect Senate Bill this that of Senate 5 3-5-302(6) the District Bill (a), Court 37 to the erred by electorate. MCA, is not applicable complained of is not in a substantive one. Nothing in constitutional included bill problem. but, to rather, address Constitution leave assigned to that duty. The "secretary State with of that as used be cured by addressing It further it The existence of between is not dictated in for such remedies, one a to duty substantive the defect referendum it the term Section argues, of form. of would purports couid define form by the ease or availability 6 therein leaves not IV, another a defect Montana who must assume that is that was the of but Article what of the The bill this but only from contained state contends through is not one of substance substance duty because the legislature state" The difference the an obvious The failure 7(3), no provision contends the duty. defect of secretary office, reassign election. not in the constitution. of defect of arises Section IV, dispose defect office constitutional creates from what was omitted. to an obvious the The problem Article or abolish 37 as presented 7(3) could at and also a later means the We disagree. and a defect of of a remedy. As the State noted, style, manner, instrument" the Dictionary failure remove ostensibly is essential presented legislature state" how the may only 9, in fact in Mont.Const. chosen the would included. In exercise back to and attempt The State cured election by to prior to the office in the of the office style of or something would of that another January does has referendum 7 in secretary 2001, of that the effective Sec. 8 and imagines the the which and just to however, without futile however, 1, XIV, as here, a of The constitution State section be which not, that "secretary constitution when, argues term Art. the the remedies The State people. the contends, the construe of do this. how of it further presenting of effect define Black's hypothetical by the could people, the abolish duty The State the case, the meant unclear to the any is a term matter in "the forth." omission problem. itself is legal including problem "the that the by a vote change a constitution. It a a the forth." what could,define presenting and exactly persuaded legislature of We cannot merely solve the be amended legislature not can define as used explain is be set 419. in imperfection to be set to be it to at "[aln instrument" essential to we are would is imperfection parts is a legal reference Instead, Moreover, the a " ialn substance 1991) abolished arrangement. which ed. is non-essential of which (6th to of part of something form or a defect or substantive omission of arrangement, while body Law a defect the definition the term is inconsistent state been first and then go abolished. defect people date could at of by a later Senate Bill voted 31. But this in favor constitutional of the first defect Affirmed. We Concur: Chief is not a guaranteed Justice referendum would remain solution; but against in place. if the electorate the second, the Chief Justice J. A. Turnage, I respectfully from the stated dissent order that of the this amendment passed in would have the 1995 secretary people. of lack What cause and vote on the through Senate the of the constituBill substance secretary eliminating the 37, of which of state to office of the is proposal merits are at issue is are not matters the referendum--a at to right right issue. The proposal's be decided of by vote people the which the to Court of vote has the on a denied in matter. In State 691 P.2d ex rel. 826, defect this where, process as in the may be brought added.) that Article the of the in issue the reference IV, to the substance the Section Waltermire to 7(3), was MCA, provides submitted election 213 Mont. in not the to 425, referendum a substantive a proposed the 9 pertinent . . of that constitution- issue." the state" Montana part or referendum [for1 ballot concerned "secretary of in by initiative only which a intervene challenge of defect to (19841, referendum. (ii), prior Here, one here, a ballot of v. declined 3-5-302(6) "a contest defect Harper Court text Section al to session, this of constitutional this this be reversed. people thereby in I dissented state. The merits or 1996, allowed the opinion. 18, functions governor, of been to the majority should legislative transferred lieutenant merits have referred the on July Court should tional from Court District The people the dissenting. (Emphasis District Court is left in will Constitution be without definition. it This constitutes one which the a substantive at all, defect. it has legislature the a defect is To the of power to of the extent form, cure by that and it is providing an definition. The only is omission meant particular a Constitution at must the legislature of elections. Montana power The be defined provide definition in Clearly, the and not one of principle, the an important I would the defect substance. majority to the is not body of the the here, Article specifically for the a That the IV, gives the of and ability administration to in the "secretary of referendum language In failing has denied constitutional reverse term perform authority one provision. that of has as define an issue within where, requirements legislature will election). Constitution to set who submitting designated particularly the the next to legislature state" (i.e., essentially itself, 3 of function electors which failure "secretary ministerial something the is by qualified Section not a defect appropriate what is the to recognize the referendum. District Court. 10 state" people the as it is this right is used one of form fundamental to vote on September 26, 1996 - .-(ZERTIFICATE OF SERVICE I hen:by certify that the following certified order was sent by United States mail, prepaid, to thf: following named: Joseph P. Mazurek, Attorney General Kimberly A. Kradolfer, Assistant Attorney General Justice Building P.O. Box 201401 Helena, MT 59620-14 1 in Garth Jacobson,Esq. Office of the Secretary of State P.O. Box 202801 Helena, MT 59620-2801 John Cobb Attorney at Law P.O. Box 388 Augusta, MT 59410-0388 _. ,. ED Sh -- Illill CLER OK THE SUPREME COURT ~~~~~~~~~~ OF STATE OF MONTANA --_ BY: -n/l&-- ueputy * / -
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