author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON, MR. JUSTICE SHEEHY,

text:
    JOHN KUHNKE, Individually, and as Personal Representative of the Estate of Annabelle Kuhnke, Deceased, Plaintiff and Appellant, v. JOHN A. FISHER, Douglas W. Alvord and Bozeman Deaconess Hospital, Defendants and Respondents.
    No. 86-159.
    Submitted March 4, 1987.
    Decided May 20, 1987.
    Rehearing Denied Aug. 26, 1987.
    740 P.2d 625.

      Alexander & Baucus, John Alexander argued, Great Falls, Paul Luvera argued, Mount Vernon, Wash., Monte D. Beck, Bozeman for Kuhnke.
    Arnold Huppert, Jr., Livingston argued, for Wellcome.
    Garlington, Lohn & Robinson, Sherman V. Lohn argued, Missoula, Mo., for Aetna Ins.
    Berg, Coil, Stokes & Tollefsen, Ben E. Berg, Jr. argued, Bozeman, for Fisher.
    Wellcome, Frost & Bartlett, Page Wellcome argued, Bozeman, for Alvord.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff, John Kuhnke, appeals from judgment entered upon a jury verdict in the Eighteenth Judicial District in favor of defendants John A. Fisher, M.D., and Douglas W. Alvord, M.D. Aetna Insurance Company and counsel for Dr. Alvord appeal the District Court order imposing sanctions for trial misconduct. We affirm in part, reverse in part and remand.

On May 1, 1978, Annabelle Kuhnke, 6-8 months pregnant, consulted with Dr. John Fisher of Bozeman to act as her physician. Annabelle was obese, 42 years of age, and experiencing her ninth pregnancy. All of these factors contributed to a high risk pregnancy.

The Kuhnke family had recently moved from Alaska. The record is not clear as to when Annabelle had last seen an obstetrician. Her Alaska medical records were not forwarded to Dr. Fisher.

Dr. Fisher examined Annabelle on May 1 and 8. The two visits to Fisher’s office indicated that Annabelle was doing fine. However, after the check-up on May 8, she began experiencing extreme abdominal pain and went to the emergency room at Bozeman Deaconess Hospital. Dr. Fisher prescribed five Percodan tablets to be taken over the next two days.

On May 11, 1978, at approximately 7:00 p.m., Annabelle was admitted to Bozeman Deaconess Hospital in an exhausted condition. She evidenced shock. She had experienced sleeplessness for 4 days, had diarrhea and had been vomiting all day. Dr. Fisher was contacted and he gave telephone orders for fluid infusion, urinalysis, and a complete blood count.

Attending Nurse Shaklin observed Annabelle had blue nail beds and blue lips indicating poor circulation. Her veins had collapsed making it impossible to monitor blood pressure. Annabelle’s pulse and respiration were abnormally high. Shanklin was unable to start an IV so she contacted Dr. Alford, an internist making rounds at the time. With Alvord’s assistance, they were successful in starting the IV therapy. Dr. Fisher arrived shortly thereafter.

Dr. Fisher examined Annabelle’s abdomen and uterus. He determined that there was extra fluid in the uterus but nothing serious. Closer examination of the uterus ruled out abruptio placentae (separation of the placenta from the uterus). Annabelle was not experiencing any costovertebral pain which Dr. Fisher believed ruled out the possibility of kidney infection. Dr. Fisher diagnosed the problems to be hydramnios, an excess of fluid in the inner layer surrounding the fetus, and gastro-enteritis, an inflammation of the stomach and intestines caused by vomiting and dehydration. Infusion of fluids and electrolytes were given for dehydration.

Both Fisher and Alvord believed that Annabelle was in shock when admitted. By 9:00 p.m., her condition had improved with pulse, respiration, and blood pressure back to normal. Dr. Alvord left to finish. his rounds. Dr. Fisher remained with Annabelle, who had recovered sufficiently to converse with him. Dr. Fisher left at 10:30 p.m. convinced that Annabelle was doing fine. At home, he called at 11:30 p.m. before going to bed, and was told that Annabelle was stable.

At 11:30 p.m., Nurse Weigand relieved Nurse Shanklin. Annabelle’s vital signs began to deteriorate around midnight with respiration and pulse rising. No call was made to either doctor. At 2:00 a.m., the nurse taking the vitals noticed a small emesis, no radial pulse, and she was unable to take a blood pressure. Arterial pulse was 160 with respiration of 40 per minute.

At 3:00 a.m., Nurse Weigand called Dr. Alvord at home to report Annabelle’s vital signs. Dr. Alvord did not sound concerned and told Nurse Weigand to continue with the fluid orders. Later, Dr. Alvord would say he didn’t remember the call specifically, but that he didn’t sense an emergency. By 4:00 a.m., Annabelle’s skin was cold and clammy, her extremities were turning blue, and her pulse remained abnormally high. Nurse Weigand called her nursing supervisor. They monitored Annabelle, who was now making inappropriate remarks and was in need of oxygen. At 5:15 a.m., Dr. Alvord was called and he arrived at 5:35 a.m. At 5:50 a.m. Annabelle was pronounced dead.

Dr. Alvord hypothesized the cause of death to be sepsis, (a poisoning of the blood), or obstetrical catastrophe. Dr. Fisher arrived at 6:00 a.m. He was unable to hear any fetal heart tones. Dr. Fisher listed the cause of death as irreversible shock from severe dehydration due to gastroenteritis. The cause of Annabelle’s death remains unknown for Mr. Kuhnke declined to have an autopsy performed.

Mr. Kuhnke filed a malpractice action against the hospital and Drs. Alvord and Fisher. The first trial resulted in a jury verdict in favor of defendants. However, this Court reversed and remanded for a new trial due to the misconduct of Page Wellcome, counsel for Dr. Alvord. Kuhnke v. Fisher (Mont. 1984), [210 Mont. 114,] 683 P.2d 916, 41 St.Rep. 952.

Prior to the second trial, the District Court granted 21 of 23 motions in limine filed by plaintiff’s counsel in an attempt to guarantee proper conduct by counsel during the trial. The trial commenced October 1, 1985, and lasted 12 days.

The trial testimony is voluminous. Plaintiff’s experts testified that up to 19 tests should have been conducted to insure Annabelle’s recovery from shock. All witnesses noted that the urinalysis ordered by Dr. Fisher was never performed, and the results would have likely provided some answers. Plaintiff’s experts concluded Annabelle should not have died and that Drs. Alvord and Fisher did not exercise due care.

Drs. Alvord and Fisher defended their treatment methods, yet admitted not inserting a urinary catheter which would have allowed them to monitor Annabelle’s fluid balance. She did not void at anytime subsequent to admission. Drs. Alvord and Fisher believed their treatment was appropriate for a shock victim.

The hospital settled with plaintiff during trial. The case was submitted to the jury on a special verdict allowing negligence to be attributed to: 1) Annabelle; 2) the hospital; 3) Dr. Fisher; 4) Dr. Alvord. The jury found the hospital to be solely negligent.

Plaintiff filed a motion for new trial and/or judgment notwithstanding the verdict and motion for sanctions against Page Wellcome for trial misconduct. The District Court denied the motions for new trial and judgment notwithstanding the verdict, but ordered sanctions in the amount of $20,000 against Wellcome and Aetna Insurance Company, Alvord’s insurance carrier.

On appeal, the following issues are raised:

1) Whether the District Court erred in denying plaintiff’s motion for new trial based upon the trial misconduct of counsel for Dr. Alvord?

2) Whether the assessment of sanctions by the District Court was proper?

3) Whether the District Court should have granted plaintiff’s motion for judgment notwithstanding the verdict?

4) Whether the District Court erred in submitting to the jury an issue of contributory negligence on the part of Annabelle?

5) Whether the District Court erred in submitting to the jury the question of percentage of fault of the settling party7

Plaintiff raises innumerable instances of misconduct by counsel for Dr. Alvord, during jury voir dire, witness testimony, and closing argument. Plaintiff contends this misconduct deprived him of a fair trial.

Defendant Dr. Alvord argues that plaintiff may not raise any issues relating to the evidence presented at trial because plaintiff has provided a partial transcript on appeal without filing notice of such. While plaintiff has technically violated Rule 9, M.R.App.Civ.P., we find the omitted portions are not relevant to the issues on appeal.

In Kuhnke I, we reversed and remanded for a new trial due to counsel’s: 1) good Samaritan argument; 2) argument as to the verdict’s effect on Alvord’s reputation; 3) numerous comments that plaintiff and the expert witnesses were from out of town and other states; 4) reference to the unpaid Kuhnke funeral bill. A review of the transcript of the second trial reveals Wellcome again raised the first three of these arguments.

Prior to trial, the District Court entered an order in limine prohibiting inquiry concerning various matters not relevant to the case. Wellcome violated several of the specific prohibitions including: 1) reference to the fact that the Kuhnke’s were living in a Winnebago; 2) reference to the previous trial in questioning a witness; 3) comments regarding the presence of Dr. Alvord’s family in the courtroom and the effect of the lawsuit on Dr. Alvord’s reputation.

The standard of review for this Court in determining whether a mistrial was appropriately denied is whether there is manifest abuse of the District Court’s broad discretionary power. Walter v. Evans Products Co. (Mont. 1983), [207 Mont. 26,] 672 P.2d 613, 616, 40 St.Rep. 1844, 1847.

The District Court, in this case, carefully considered the conduct of the offending attorney, the possibly prejudicial effect which his improper statements may have had on the jury, and fairness to the parties. The District Court judge heard the entire trial and is in the best position to determine the prejudicial effect of the attorney’s blatant misconduct on the jury.

Although there was flagrant disregard by Wellcome for plaintiff’s motions in limine, court admonitions, warnings and objections by opposing counsel (which were repeatedly sustained), the District Court judged that the trial was fair to all parties. The District Court concluded that “a) the misconduct was not of the magnitude of that found in the first Kuhnke trial, and (b) that viewed in the context of the entire trial, the improper conduct did not impact the jury to such an extent as to warrant a new trial.”

The record shows substantial credible evidence which supports the verdict reached by two juries on two separate occasions hearing the same facts. It is unlikely that a third trial heard before a third jury will produce a different result.

We affirm the jury verdict and judgment in favor of Dr. Fisher and Dr. Alvord.

By refusing to grant a retrial for appellant, we are in no way condoning or ignoring Wellcome’s courtroom antics. His comments regarding Dr. Alvord as a “good Samaritan,” the effect of the verdict on Dr. Alvord’s reputation, and out of record statements were entirely improper. It was also improper to suggest that the settlement made with the hospital was adequate as plaintiff’s recovery and to improperly state the law, claiming that only an internist could testify against an internist. There were numerous other improper statements and arguments made by Wellcome which cannot be considered to be inadvertent mistakes.

In this case, the jury returned a verdict finding the hospital solely liable for Annabelle Kuhnke’s death. In light of this verdict, and the complete record, the District Court determined that the misconduct of Dr. Alvord’s attorney was not substantially prejudicial. We will not disturb that decision.

Under the present facts, the appropriate solution to adequately protect against such unprofessional and unethical behavior by counsel in the future is severe sanctions. The District Court imposed a $20,000 sanction against Wellcome and Aetna Insurance Company (Aetna). In the post-trial order, the district judge listed extensive trial misconduct by Wellcome. Wellcome blatantly disregarded the court’s rulings throughout the trial.

Section 37-61-421, MCA, provides that any attorney or party who unreasonably multiplies the proceedings in a case “may be required by the court to satisfy personally the excess costs, expenses and attorney fees reasonably incurred because of such conduct.”

Although Section 37-61-421, MCA, was enacted after Kuhnke I, it was in effect at the time of the retrial and is applicable. We hold that Wellcome was responsible for the retrial of Kuhnke I, and for attempting to cause a second mistrial. Sanctions imposed by the District Court against him are entirely appropriate.

In view of the claims of plaintiff that the court did not allow an adequate amount to cover the costs and fees of the Kuhnke retrial, we direct the District Court to examine the issue in light of Section 37-61-421, MCA.

The record indicates that Aetna did not receive prior notice that the motion for sanctions included Aetna in addition to Wellcome. As we are remanding the sanction award, the issue of proper notice is moot. Whether Aetna should be held liable for Wellcome’s misconduct is an issue to be addressed by the District Court.

The third issue is whether the District Court should have granted plaintiff’s motion for judgment notwithstanding the verdict. We find the District Court was correct in denying the motion. The evidence is conflicting and the case was properly sent to the jury. A directed verdict is not proper unless there is a complete absence of any evidence to warrant submission to the jury. Jacques v. Montana National Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325 citing Cities Service Oil Co. v. Launey (5th Cir. 1968), 403 F.2d 537; see also Rudeck v. Wright (Mont. 1985), [218 Mont. 41,] 709 P.2d 621, 42 St.Rep. 1380.

Plaintiff’s next contention is that the District Court erred in submitting to the jury an issue of contributory negligence on the part of Annabelle. The jury did not find Annabelle contributorily negligent, so the issue is moot and need not be addressed.

The last issue raised on appeal is whether the percentage of fault of the hospital should be submitted to the jury.

Section 27-1-703(2), MCA, provides that where “more than one person is found to have contributed as a proximate cause to the injury complained of, the trier of fact shall apportion the degree of fault among such persons. Contribution shall be proportional to the negligence of the parties against whom recovery is allowed.” Although the District Court used the legal (“substantial factor”) rule as the burden of proof instead of the proximate cause (“but for”) rule, Rudeck, 709 P.2d at 628-629, Section 27-1-703, MCA is useful in determining whether a settling party may be held responsible for contributory negligence. The general rule is that a settling party does not fall under “parties against whom recovery is allowed,” as once a party settles with a plaintiff, he is no longer required to contribute. Rather, the plaintiff’s recovery is diminished by the amount of consideration paid by the settling concurrent tortfeasor. State ex rel. Deere Co. v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 404-405, 43 St.Rep. 2270, 2280.

Typically, when there are multiple defendants in a concurrent negligence situation, the percentage of negligence which is attributable to a settling party would not be properly put before the jury.

In the case at bar, however, the hospital settled after commencement of the trial at issue. The court was faced with a situation where the jury had already heard evidence concerning the hospital’s contributory negligence. After much consideration and research, the District Court gave the following jury instruction:

“In this case the plaintiff has made a settlement with the Bozeman Deaconess Hospital. The amount of the settlement has been disclosed to the court but not to the jury.
“If you should find under the Court’s instructions that the plaintiff is entitled to recover against the defendant’s John A. Fisher, M.D. and/or Douglas W. Alvord, M.D., then you shall award damages to the plaintiff for the same amount you would have awarded if no such settlement had been made.
“In such event the court will later deduct the amount of this settlement from the amount of your award and your verdict will be reduced accordingly.”

In this situation, the record is such that a jury may reasonably differ as to the divisibility of negligence. “In that event the court must instruct the jury that it may if able to do so, divide the harm and therefore apportion the damages.” Azure v. City of Billings (1979), 182 Mont. 234, 254, 596 P.2d 460, 471.

To ask the jury in this case not to consider the hospital’s negligence after the jury heard evidence concerning the hospital as a co-defendant and concurrent tortfeasor would: 1) force the jury to ignore that which it had already heard; and, 2) allocate comparative negligence without the opportunity to compare the negligence of all potentially culpable defendants.

It can be presumed that the hospital’s settlement had some impact on the jury’s verdict, but to what extent will never be known. The carefully worded instruction given by the court safeguards against the possibility of the jury denying recovery to the plaintiff due to a belief that plaintiff would then receive a double award. The instruction accurately states the current law in Montana.

The only way to have avoided the jury’s consideration of the hospital’s negligence would have been to declare a mistrial at the time of settlement. Whether to grant or deny a mistrial was within the discretion of the court and we will not disturb the decision of the District Court barring a clear abuse of that discretion. Under the unique and complex facts of this case, we find no abuse of discretion or error and affirm the decision of the District Court to submit the hospital’s negligence to the jury.

Affirmed in part, reversed in part and remanded.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON and WEBER concur.

MR. JUSTICE GULBRANDSON,

specially concurring and dissenting:

I concur in all of the Court’s opinion except the discussion and characterization of the defense attorney’s conduct and the remand for consideration of additional sanctions against said attorney and the liability insurer for Dr. Alvord. I would also vacate the award of $20,000 as a sanction against Aetna Insurance Company inasmuch as Aetna was not a party to the action and had no notice of the motion for sanctions.

MR. JUSTICE SHEEHY,

dissenting:

I must disagree with the majority opinion.

It is incongruous that the District Court could hold that Wellcome’s improper actions had no effect on the jury verdict on one hand, but that they were serious enough to require sanctions of $20,000 against him on the other. Those two concepts so militate against each other that a new trial of all issues is required against Dr. Alvord. I would sustain the verdict as to Dr. Fisher.

The majority state that “whether Aetna should be held liable for Wellcome’s misconduct is an issue to be addressed by the District Court.” There is no issue on this because Wellcome was Aetna’s agent without doubt. See National Farmers’ Union Property & Casualty Co. v. O’Daniel (U.S.C.A. 9), 329 F.2d 60, (1964), decided in the Ninth Circuit and arising out of Montana.

Because the policy of insurance gives the insurance company the right to defend all actions, to control the litigations, and to pick counsel, it is solely responsible for the improper actions of counsel during the trial. Counsel is personally liable for costs under Section 37-61-42, MCA, but Aetna is likewise liable as the principal. The decision in the Ninth Circuit case grew out of a judgment by Judge William J. Jameson in Jessen v. O’Daniel (D. Mont. 1962), 210 F.Supp.317 and the Ninth Circuit Court affirmed Judge Jameson on the issue of the attorney in that case being the agent of the company.

It is true that the amount of sanctions here is insufficient, and that the case must be returned to the District Court for a redetermination of the sanctions. For that reason the notice-to-Aetna argument is moot as stated in the majority opinion. However, the District Court must further consider sanctions to recompense Dr. Fisher for the second trial. The evidence shows that Dr. Fisher was not causally responsible as a matter of law. The retrial of the cause ought to be limited to a case between the decedent and Dr. Alvord. The jury in this case determined that the decedent was not negligent and as a matter of law there was no way she could have been negligent, since she was semi-conscious or in a coma most of the time. The retrial should consider solely the question whether Alvord was guilty of acts of negligence which were a legal cause or a proximate cause of her death. I would instruct the jury to find the full amount of the damages without regard to any settlements that have been made. The reduction for settlements could be taken care of after the jury returns it verdict, if it found for the plaintiff. State ex rel. Deere & Co. v. District Court (1986), [224 Mont. 384,] 730 P.2d 396, 43 St.Rep. 2270.

What keeps coming through is that in the two cases that have been tried thus far, the decedent in this case had been denied recovery and that result is absurd. It is a result that has been brought about in each case by the improper actions of Wellcome. He and his company should pick up the tab for the costs of the other parties thus far (except for discovery costs which must be used upon the third trial) and I would propose a further sanction that Wellcome could no longer represent Aetna or Alvord in this case since he is unable to comply with strongly expressed rulings of the trial court and this Court and the canons of ethics.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    WESTERN ENERGY COMPANY, a corporation, Plaintiff and Appellant, v. GENIE LAND COMPANY, a corporation, and Montana Department of State Lands, an agency of the State of Montana, Defendants and Respondents.
    No. 86-392.
    Submitted March 19, 1987.
    Decided May 22, 1987.
    737 P.2d 478.

      Moulton, Bellingham, Longo & Mather, W.H. Bellingham argued, Billings, for plaintiff and appellant.
    Goetz, Madden & Dunn, William L. Madden argued, Bozeman, John F. North argued, Dept, of State Lands, Helena, for defendants and respondents.
    Holland & Hart, Paul D. Miller argued, for Meridian Minerals, Billings, Daniel C. Murphy, Meridian Minerals, Englewood, Colo, for amicus curiae.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The District Court of the Sixteenth Judicial District in and for Rosebud County, Montana, denied the request of Western Energy Company (Western) that Genie Land Company (Genie) and the Montana Department of State Lands (MDSL) be enjoined from denying it the right to obtain a coal strip-mining permit and the right to enter upon lands in order to strip-mine coal without further consent or waiver from Genie. The court also refused to declare Section 82-4-224, MCA, unconstitutional. Western appeals to this Court. We hold the statute unconstitutional and reverse and remand.

By deed dated September 4, 1945, Northern Pacific Railway Company (NP) granted to Philbrook Land and Livestock Company (Philbrook) 6,768.18 acres of land in Rosebud County, Montana, which included:

WViWViNEVi; NWW NVfcSWVi; NWViSE1/* Section 29, Township 2 North, Range 42 East; M.P.M.

By deed dated April 15, 1947, NP granted to Philbrook 650.92 acres of land in Rosebud County, Montana, described as:

Lots 1, 2, 3 and 4, EV2 WV2; NE!4; SW V4 SE lA, Section 19, Township 2 North, Range 42 East; M.P.M.

The land described in the 1945 and 1947 deeds include the subject lands, comprising approximately 840 acres.

Both the 1945 and the 1947 deeds contained pertinent exceptions and reservations that provided:

“[E]xcepting and reserving unto the grantor, its successors and assigns, forever, all minerals of any nature whatsoever, including coal, iron, natural gas and oil, upon or in said land, together with the use of such of the surface as may be necessary for exploring for and mining or otherwise extracting and carrying away the same; but the grantor, its successors and assigns, shall pay to the grantee, or to its successors or assigns, the market value at the time mining operations are commenced or such portion of the surface as may be used for such operations or injured thereby, including any improvements thereon; . . .”

Burlington Northern Railroad Company (BN) is the successor in interest to NP as to all right, title and interest of NP in the subject property. Genie is the successor in interest to Philbrook as to all right, title and interest in the subject property. Genie is in possession of the surface of the subject lands.

On June 1, 1966, NP and the Montana Power Company (MPC) executed a mining lease of coal lands (coal lease) which has been supplemented from time to time by successors in interest to NP. Western has succeeded to the interest of MPC in the coal lease as supplemented, which covers the subject lands. Section 82-4-224, MCA, the Owner Consent Statute, says:

“Consent or waiver by surface owner. In those instances in which the surface owner is not the owner of the mineral estate proposed to be mined by strip-mining operations, the application for a permit shall include the written consent or a waiver by the owner or owners of the surface lands involved to enter and commence strip-mining operations on such land, except that nothing in this section applies when the mineral estate is owned by the federal government in fee or in trust for an Indian tribe.”

The MDSL informed Western that because of the Owner Consent Statute and applicable administrative rules, it would deny Western Energy’s application for a permit to strip coal unless Genie Land consented. Western has been unsuccessful in obtaining Genie’s consent.

In previous litigation between these parties, this Court permitted Western Energy to conduct various exploration and resource inventory operations on the subject lands, as being a necessary part of the information needed by Western in order to apply for a strip-mining permit. The Court concluded strip-mining was within the contemplation of the parties at the time the deeds were conveyed. Further it was the understanding of the parties that NP withheld the mineral ownership and reserved the right to do what was necessary to extract minerals. Western Energy Co. v. Genie Land Co. (1981), 195 Mont. 202, 635 P.2d 1297.

Relying on Section 82-4-224, the Owner Consent Statute, Genie refused Western the right to enter the land for the purpose of strip-mining, thus foreclosing the possibility of Western’s obtaining a permit to mine from the MDSL. Western then sought a permanent injunction enjoining Genie and the MDSL from denying it permission to strip the coal, and requested a declaratory judgment that Section 82-4-224, MCA, and the applicable regulations, are unconstitutional under federal and state constitutional due process and impairment of contract clauses. The District Court found the statute constitutional and refused to grant Western injunctive relief, however. Western appeals.

The constitutionality of Section 82-4-224, MCA, is dispositive of this case notwithstanding various errors Western claims were committed by the District Court. We find the statute unconstitutional.

Both the Montana and the United States Constitutions prohibit taking of property without due process. Article II of Montana’s Constitution provides for protection of property in two sections:

“Section 17. Due process of law. No person shall be deprived of life, liberty, or property without due process of law.
“Section 29. Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner . . .”

The Fifth Amendment to the United States Constitution says,

“No person shall... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

It is incorrect to argue Western does not have a property interest in its leased mineral estate which is protected by the due process clauses.

“It has long been established that the holder of an unexpired leasehold interest in land is entitled, under the Fifth Amendment, to just compensation for the value of that interest when it is taken upon condemnation by the United States. [Citations omitted.]”

Alamo Land & Cattle Co. v. Arizona (1976), 424 U.S. 295, 303, 96 S.Ct. 910, 916, 47 L.Ed.2d 1, 8-9. See also Foster v. United States (Ct.Cl. 1979), 607 F.2d 943, 949. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358; Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631.

While the principles of eminent domain require just compensation when private property is taken for public use, constitutional due process requirements may be met without just compensation when the state exercises its inherent police power to regulate the health, safety and general welfare of the people.

“It is well established that a police power regulation must be reasonably adapted to its purpose and must injure or impair property rights only to the extent reasonably necessary to preserve public welfare. The standard of reasonableness is the constitutional measure of the proper exercise of the police power.”

Yellowstone Valley Electric Cooperative v. Ostermiller (1980), 187 Mont. 8, 15, 608 P.2d 491, 496. See also Charles v. Diamond, (N.Y. App. 1977), 41 N.Y.2d 318, 392 N.Y.S 2d 594, 606, 360 N.E.2d 1295, 1302.

The statute must serve a public, rather than a private interest and the means chosen to advance the interest must be reasonable. Lawton v. Steele (1894), 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385, 388. In Mountain States Telephone and Telegraph Co. v. Dept. of Public Service Regulation (Mont. 1981), 634 P.2d 181, 187, 38 St.Rep. 1479, 1485, we adopted the Lawton “means end test” wherein the state’s authority on behalf of the public is balanced against the constitutional due process requirement in the protection of private property.

A regulation which establishes an unreasonable burden on the landowner is unconstitutional as a violation of due process. If the regulation is invalid, “the proper remedy ... is a declaration of unconstitutionality.” Charles v. Diamond, supra, 360 N.E.2d at 1303.

The Montana Strip and Underground Mine Reclamation Act, Sections 82-4-201 et seq., MCA, was enacted pursuant to the authority granted in the 1972 Montana Constitution, and is “[djeemed to be an exercise of the general police power to provide for the health and welfare of the people.” Section 82-4-202(2)(b), MCA.

Applying the Lawton “means end test” to Section 82-4-224, MCA, the Owner Consent Statute, we conclude the denial of just compensation places an unreasonable burden on the mineral owners, in violation of due process. The statute does not bear the requisite “substantial relation to the public health, safety, morals, or general welfare.” Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 314. Nor does it address reclamation, conservation, or any other policy goal. It does not prevent strip-mining operations, does not regulate the manner in which mining or reclamation is performed, nor does it conserve agricultural land. The statute merely provides that when the owner of the minerals does not own the surface he cannot apply for a permit to mine without first receiving permission of the surface owner to enter and commence strip-mining operations on the land. The statute is inapplicable unless the surface rights have been severed from the mineral rights, or the mineral estate is owned in fee by the federal government or in trust for an Indian tribe. Thus, any public interest protected by the statute is limited.

The case at bar is analogous to that in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322. In Mahon the Commonwealth of Pennsylvania passed a statute which prohibited mining coal in such a manner as to cause the surface to subside. A deed of the property involved contained a reservation of the right to remove all coal under the land and further provided that the grantee (surface owner) assumed all risks and waived all damages which might arise from mining the coal. The Supreme Court struck down the statute as an unconstitutional exercise of the state’s police power “so far as it affects the mining of coal... in places where the right to mine such coal has been reserved.” Mahon at 414, 43 S.Ct. at 160, 67 L.Ed at 325.

Justice Holmes said:

“So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.”

Mahon, supra, at 416, 43 S.Ct. at 160, 67 L.Ed. at 326.

The court reasoned it is a natural human tendency to extend the state’s police power to protect the public interest until at last private property no longer exists. However, this “public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Mahon, supra.

The owner consent statute permits a similar occurrence by effectively depriving Western of the right to mine its coal. Mahon makes clear that a taking may arise from an inverse condemnation, where property use or value is interfered with by state regulatory or police action.

“What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.”

Mahon, supra at 414, 43 S.Ct. at 160, 67 L.Ed. at 325. The reasoning in Mahon applies in this case.

Genie contends Keystone Bituminous Coal Association v. De Benedictis (1987),_U.S__, 107 S.Ct. 1232, 94 L.Ed.2d 472, handed down only days before oral argument in the case at bar, is controlling and dispositive of the constitutional issue here. We do not agree.

In Keystone the Court was asked to find enactment of a Pennsylvania statute unconstitutional as a taking and an unlawful impairment of contract. The Bituminous Mine Subsidence and Land Conservation Act, (the Subsidence Act) was enacted after the Pennsylvania legislature determined the Commonwealth’s existing mine subsidence legislation had failed to protect the public interest in safety, land conservation, preservation of affected municipalities’ tax bases and land development. A formula which generally required 50% of the coal beneath the protected structures to be left for surface support was applied when enforcing the Act. Petitioners were owners of the mineral estate and had acquired a waiver of any claims for damages which might result from the removal of coal. They brought suit claiming the 50% rule constituted a taking within the meaning of the Fifth and Fourteenth Amendments. They also claimed violation of their contractual rights pursuant to Art. I, Section 10 of the United States Constitution. The Court distinguished Mahon, supra, on its facts, and found the Subsidence Act to be constitutional.

We distinguish Keystone for three reasons. The Court in Keystone found that coal mining activity in certain instances was akin to a public nuisance. Therefore the state was not estopped from exercising its police power under the Fifth and Fourteenth Amendments to abate such activity. _U.S. at_, 107 S.Ct. at 1244, 94 L.Ed.2d at 491. We were not asked to, nor can we, characterize strip mining in Montana as a nuisance, thus placing it within the narrow exception which permits a taking in order to prevent “a misuse or illegal use.” Such an exception is not intended to allow “the prevention of a legal and essential use, an attribute of its ownership.” Supra at 1256, (Rehnquist, J., dissenting) quoting Curtin v. Benson (1911), 222 U.S. 78, 86, [32 S.Ct. 31, 32, 56 L.Ed. 102, 106]. We note, “[i]t is the declared policy of this state and its people to: . . . provide for the orderly development of coal resources through strip or underground mining to assure the wise use of these resources and prevent the failure to conserve coal.” Section 82-4-202(1)(g), MCA.

No less significant is the fact the Court has never allowed the nuisance exception to allow complete extinction of a parcel of property. See, for example Mugler v. Kansas (1887), 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Miller v. Schoene (1928), 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568. There is no “reciprocity of advantage” inherent in Section 82-4-224, MCA. See Mahon, supra at 415, 43 S.Ct. at 162, 67 L.Ed. at 326. Consequently, Keystone is distinguishable.

Secondly, we distinguish Keystone because application of the Subsidence Act to all minerals, not merely those which have been severed from the surface estate, reflects a public interest. As noted above, there is limited public interest protected by Section 82-4-224, MCA.

Finally, petitioners in Keystone sought to define narrowly certain segments of their property and argued the Act effectively appropriated coal in those segments. The critical question then became how to define a segment of property for taking purposes.

“ ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole . . .”

Penn Central, supra at 130-131, 98 S.Ct. at 2662, 57 L.Ed.2d at 652.

“[W]here an owner possess a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.”

Andrus v. Allard (1979), 444 U.S. 51, 65-66, 100 S.Ct. 318, 327, 62 L.Ed.2d 210, 223. At issue in this case is destruction of Western’s entire bundle of rights in the minerals beneath the surface owned by Genie.

The Court in Keystone rejected petitioners’ argument that the extent of interference with their property interests should be determined by the amount of coal the Subsidence Act required to be left in place, that being 50%. The Court said the coal left, regardless of the amount, “do[es] not represent a separate segment of property for taking law purposes,” characterizing it merely as one strand in petitioners’ bundle of rights. Keystone, supra, at-, 107 S.Ct. at 1249, 94 L.Ed.2d at 496.

Genie contends this rejection signals a similar refusal by this Court of Western’s claim of total loss of its coal due to Section 82-4-224, MCA. Under Montana law, however, Western’s entire bundle of rights consists of its rights to all the minerals beneath certain sections of land. These rights are not defined in terms of its various holdings in eastern Montana, but rather in terms of its rights to mine coal in the specific sections in question. Consequently, the Court’s determination in Keystone that merely one strand of petitioners’ rights had been taken is inapplicable here.

Genie’s argument the Owner Consent Statute is not an impairment of contract likewise cannot stand. Both the Montana and United States Constitutions prohibit the impairment of contracts. Article II of the Montana Constitution says:

“Section 31. Ex post facto, obligation of contracts, and irrevocable privileges. No ex post facto law nor any law impairing the obligation of contracts, shall be passed by the legislature.”

The United States Constitution says:

“Article I, Section 10. No state shall. . . pass any . . . law impairing the obligation of contracts, . . .”

Although the prohibition appears absolute on its face, private contracts must give way before a legitimate exercise of police power. Home Building and Loan Association v. Blaisdell (1934), 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413; Chicago and Alton R.R. v. Tranbarger (1915), 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 204; Atlantic Coastline Railway Co. v. City of Goldsboro (1914), 232 U.S. 548, 34 S.Ct. 364, 58, L.Ed. 721. Thus all business is conducted subject to the retained power of the state to protect public welfare.

“[A]n examination of the legislation for validity under the contract clause requires a three step analysis. The threshold inquiry is ‘whether the state law has, in fact, operated as a substantial impairment of the contractual relationship.’ [Citations omitted.] If there is no substantial impairment of the contractual relationship, the inquiry is ended. Second, if the legislation substantially impairs the contractual rights, ‘[t]he state, in justification, must have a significant and legitimate public purpose behind the regulation.’ [Citations omitted.] Third, the adjustment of rights and responsibilities of contracting parties must be based ‘[u]pon reasonable conditions’ and be ‘[o]f a character appropriate to the public purpose justifying the legislation’s adoption.’ ”

Neel v. First Fed. Savings and Loan Assoc. (Mont. 1984), [207 Mont. 376,] 675 P.2d 96, 104-105, 41 St.Rep. 18, 27, citing Energy Reserves Group, Inc., v. Kansas Power & Light Co. (1983), 459 U.S. 400, 412-413, 103 S.Ct. 697, 704-705, 74 L.Ed.2d 569, 581-582.

“The obligations of a contract are impaired by a law which renders them invalid, or releases or extinguishes them.” Blaisdell, supra, at 431, 54 S.Ct. at 237, 78 L.Ed at 425. Section 82-4-224, MCA, impairs Western’s right to mine the coal by subjecting it to the vagaries of the surface owner for consent to enter and mine.

Legislation which impairs a contract can be justified only when it serves a legitimate public purpose. The state’s police power to invade private rights is limited to legislation which bears a “substantial relation to the public health, safety, morals, or general welfare.” Euclid v. Ambler Realty, supra. As noted above, we do not find that Section 82-4-224, MCA, meets this standard.

Finally, we conclude that the adjustment of the rights and responsibilities of the contracting parties is not based on reasonable conditions and is not of a character appropriate to the public purpose. We concur with the Kentucky Court of Appeals which said, in striking as unconstitutional a similar statute, “the primary effect of [the challenged section is] to change the legal rights and economic bargaining position of many private parties under their contracts rather than achieve any public purpose.” Dept. for Natural Resources and Environmental Protection v. No. 8 Limited of Virginia (Ky. 1975), 528 S.W.2d 684, 687. The Owner Consent Statute exceeds the legitimate bounds of the state’s police powers.

Although we have discussed United States Constitutional provisions, we have decided the issues in this case based upon the Montana Constitution, which provides independent and adequate constitutional grounds. We hold Section 82-4-224, MCA, and any rules' adopted for implementation thereof, unconstitutional and in violation of the Montana Constitution — specifically, Article II, Section 17, as permitting a taking without due process; Article II, Section 29, as permitting the taking of private property without just compensation; and Article II, Section 31, as permitting the impairment of the obligation of contract.

The judgment of the District Court is reversed with instructions to enter judgment in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON and HUNT and HON. RUSSELL C. McDON-OUGH, District Judge, sitting for MR. JUSTICE SHEEHY, and HON. JAMES SORTE, District Judge, sitting for MR. JUSTICE MORRISON, District Judge, concur.


author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

text:
    STATE OF MONTANA, ex rel., MONTANA CITIZENS FOR THE PRESERVATION OF CITIZEN’S RIGHTS, et al., Plaintiffs and Relators, v. JIM WALTERMIRE, Secretary of State, et al., Defendants and Respondents, and Montana Coal Liability Coalition, Real Party in Interest.
    No. 86-400.
    Submitted April 30, 1987.
    Decided May 22, 1987.
    Rehearing Denied July 7, 1987.
    738 P.2d 1255.

      Goetz, Madden & Dunn; James H. Goetz argued, Bozeman, for plaintiffs and relators.
    Mike Greely, Atty. Gen., Helena, James M. Scheier, Asst. Atty. Gen., Helena, H. Elwood English, Secretary of State’s Office, Helena, for defendants and respondents.
    Gerald J. Neely argued, Billings, for real party in interest.
    Shelton D. Williams, Montana Assoc. Defense Counsel, Missoula, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following canvass by the Board of State canvassers, respondent Secretary of State has filed in his office and certified to the Governor and the Executive Director of the Legislative Council, that Art. II, Sec. 16 of the Montana Constitution has been amended by initiative through the passage by the electorate of Constitutional Initiative No. 30 (CI-30) on November 4, 1986.

The language of the amendment to Article II, Section 16 as filed and certified by the Secretary of State is not the same language submitted to the electors for their vote on November 4, 1986. The difference in language is material. For that reason, principally, we determine in this original proceedings that the purported amendment of Article II, Section 16 is null and void. We further determine that publication of the proposed initiative measure prior to the election did not follow constitutional mandates.

The further proceedings in this action are in continuation of the original application filed by relators in this Court on August 28, 1986. The relators came to us asking for injunction to remove CI-30 from the November 4 ballot on several grounds. This Court declined to forestall the vote on the initiative. That portion of these proceedings is reported in (Mont. 1986), [224 Mont. 273,] 729 P.2d 1283, 43 St.Rep. 2191.

Following the election, relators filed herein on November 17, 1986 an amended application for injunction enjoining state officials from canvassing the votes cast, or from certifying that CI-30 was duly adopted. The amended application further asked for declaratory relief that CI-30 was unconstitutional, and that the election held on the initiative was unconstitutional and void. Issues were joined on the amended application, and oral argument followed on January 16, 1987. The Board of State Canvassers and the Secretary of State had already performed their official duties with respect to the the passage of CI-30 before oral argument occurred, and thus that portion of the application by relators for injunction is moot. Today we pass upon the validity of CI-30 as certified in light of the process by which it was submitted for approval by the electors.

For perspective, we give the background that spurred the supporters of CI-30 to seek its adoption. Article II, Section 16, of the State Constitution as adopted in 1972 provides:

“Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.”

In 1983, the legislature promulgated a statute (Section 2-9-107, MCA) which limited the liability of the state government or local governments in tort cases to $300,000 for each claimant and $1,000,000 for each occurrence. The validity of the limitations was attacked on the grounds that they were facially and by application discriminatory in Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 42 St.Rep. 1957. The State conceded that indeed the statute was discriminatory, but that the validity of the statute could be founded both on rationality and compelling state interest considerations. We had, however, held in White v. State of Montana (1983), 203 Mont. 363, 661 P.2d 1272, 40 St.Rep. 507, that the right to bring an action for personal injuries in Montana is a fundamental right and that any statutory impingement on that fundamental right must be measured by a “strict scrutiny” test in order to pass constitutional muster. In Pfost, the State sought to distinguish White, contending that while the right to sue for personal injury is a fundamental right, the right to recover damages is not, and that statutory limitations on the monetary recovery available to injured plaintiffs were valid. Under this contention, the clause in Article II, Section 16 loomed large that “no person shall be deprived of this full legal redress.” We said:

“The use of the clause ‘this full legal redress’ has major significance. It obviously and grammatically refers to the ‘speedy remedy afforded for injury of person, property, or character.’ The adjective ‘this’ means the person, being, or idea that is present or near in place, time or thought or that has just been mentioned. Webster’s New Collegiate Dictionary (1981).
“The constitutional framers thus construed a ‘speedy remedy’ as comprehending ‘full legal redress.’ A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property, or character therefore affects a fundamental right and the state must show a compelling state interest if it is to sustain the constitutional validity of the statute.”

In Pfost, this Court found no compelling state interest and therefore held that the monetary limitations on damages contained in Section 2-9-107, MCA, were invalid.

After Pfost, it was clear that in order for the legislature to adopt a discriminatory limitation on tort damages without a compelling state interest, the adjective “full” would have to be removed from the constitutional provision in Article II, Section 16. That is precisely what the supporters of CI-30 set out to do. They circulated a petition for a constitutional amendment which would revise Article II, Section 16 to read as follows:

“Section 1. Article II, section 16, of the Constitution of the State of Montana is amended to read:
“Section 16. The administration of justice. (1) Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. Right and justice shall be administered without sale, denial, or delay.
“(2) No person shall be deprived of thisTuH legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without-sale,-denialr or delay.
“(3) This section shall not be construed as a limitation upon the authority of the legislature to enact statutes establishing, limiting, modifying, or abolishing remedies, claims for relief, damages, or allocations of responsibility for damages in any civil proceeding; except that any express dollar limits on compensatory damages for actual economic loss for bodily injury must be approved by a % vote of each house of the legislature.
“Section 2. Effective Date. This amendment is effective on approval of the electorate.” (Underlining denotes new material; strikeouts denote deletions.)

When it is proposed that our State Constitution be amended by initiative, there are three ways under our laws by which an elector may become aware of the full text of the proposed amendment: (1) through the petition for the initiative, (2) through the voter information pamphlet, and (3) through publication by the Secretary of State.

The signer of a petition for a constitutional initiative may or may not have knowledge of the full text of the proposal. The complete text of the measure must appear on the face or on the reverse side of the petition, or be attached to it. Article XIV, Section 9(1); Section 13-27-201, MCA. A signature on the petition signifies the petitioner agrees to put the constitutional amendment on the ballot and does not necessarily mean the signer agrees to the amendment. Section 13-27-207(l)(c), MCA.

A complete text of the measure must also be set out in the voter information pamphlet. Section 13-27-401(a), MCA. This form of publication of the complete text of the measure is important because the voter information pamphlet, after preparation by the Secretary of State, is by the county election officials mailed to all of the electors. Section 13-27-410(4), MCA.

It is in the voter information pamphlet that a glaring error as to the text of the proposal was committed. In the pamphlet, the voter was told the amendment submitted to him in part was as follows (underlining denotes new material; strike-outs denote deletions):

“(2) No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and just-iee- shall be administered without sale, denial, or delay;”

We have noted in the foregoing discussion the critical importance of the words “this full” in Article II, Section 16. In the voter information pamphlet, the very words, “this full” which brought about the effort to amend Article II, Section 16 by the supporters of CI-30, were not deleted, but were indicated as being inserted. The text in the voter information pamphlet of the amendment is directly opposite to what CI-30’s supporters intended. And critically, in this case, the voter information pamphlet was the only source of information for the voter as to the full text of the proposed amendment by initiative.

The gravity of the error in the voter information pamphlet can be best understood in the light of applicable law. Our statutes, providing as they do for the inclusion of the complete text in the petition for constitutional amendment (Section 13-27-207(l)(c)), MCA, in the voter information pamphlet (Section 13-27-401(l)(a)), MCA, and by publication, (Section 13-27-311, MCA,) contemplate that the ballot issue should clearly state the substance of the proposition. Board of Education of the City of Eldorado v. Powers (1935), 142 Kan. 664, 51 P.2d 421. It is elementary that voters may not be misled to the extent they do not know what they are voting for or against. Burger v. Judge (U.S.D.C. Mont. 1973), 364 F.Supp. 504, affd. 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465. Due process is satisfied if the voters are informed by or with the ballot of the subject of the amendment, are given a fair opportunity by publication to consider its full text, and are not deceived by the ballot’s words. Kohler v. Tugwell (U.S.D.C.La.1969), 292 F.Supp. 978, affd. 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755. Where a ballot proposal is misleading, the remedy is to void the election. West Shore Community College v. Manistee County Board of Commissioners (1973), 389 Mich. 287, 205 N.W.2d 441.

A second major defect in the procedures leading up to the vote on CI-30 was the failure to publish the proposed amendment in accordance with Article XIV, Section 9 of the Montana Constitution.

There are three ways in which our state constitution may be amended, (1) through legislative referendum (Article XIV, Section 8) , (2) through a further constitutional convention (Article XIV, Section 1) or, as in this case, (3) by initiative (Article XIV, Section 9) . Although the people of this state have retained the exclusive right of governing themselves, and the right to alter or abolish the constitution or form a government whenever they deem it necessary (Article II, Section 12), it is nonetheless true that as long as the State Constitution is in effect, the people may amend the constitution by initiative only in the manner provided by the constitution. “The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Hunter v. Erickson (1969), 393 U.S. 385, 392, 89 S.Ct. 557, 561, 21 L.Ed.2d 616.

In cases of amendment by initiative, Article XIV, Section 9 is the constitutional mandate with respect to publication:

“(2) The petition shall be filed with the Secretary of State. If petitions are found to have been signed by the required number of electors, the Secretary of State shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election. (Emphasis added.)”

The legislature, presumably acting in conformance with Article XIV, Section 9, has provided:

“13-27-311. Publication of proposed constitutional amendments. (1) If a proposed constitutional amendment or amendments are submitted to the people, the secretary of state shall have the proposed amendment or amendments published in full twice each month for two months previous to the election at which they are to be voted upon by the people, in not less than one newspaper of general circulation in each county.
“(2) The secretary of state may arrange for newspaper, radio or television publication of proposed constitutional amendments in each county. A summary of the amendment as provided by the attorney general, as described in 13-27-312, or 13-27-315 would suffice for the publication required by this section and should be made at least twice each month for 2 months previous to the election.”

It is undisputed in this case that the Secretary of State did not arrange for radio and television publication of proposed CI-30 in any county of this state. It is further undisputed that the Secretary of State did not have the proposed amendment in full published twice each month prior to the election in any newspaper of general circulation in any county of this state. Instead, the Secretary of State did contract to have published in newspapers in the counties of this state the “statement of purpose” of CI-30 which is formulated by the Attorney General. (There is an indication in the brief of the Secretary of State that even the Attorney General’s statement was not published for the required length of time in Gallatin County; however, we do not regard that circumstance in this decision.)

The Attorney General’s statement of purpose, which was published in the voter information pamphlet, and also in the newspapers, stated:

“This initiative would amend the Montana Constitution to authorize the legislature to determine the rights and remedies for injury or damage to person, property, or character. Currently the Constitution does not permit limits on these rights and remedies. A two-thirds vote of each house of the legislature would be required to set dollar limits on damages for economic loss resulting from bodily injury.”

It is obvious that the Attorney General’s statement does not comprise the full text of the proposed measure, CI-30. Only the most daring would contend that the Attorney General’s statement is a “summary” of the initiative measure. “Summary” must cover the main points succinctly. Webster’s New Collegiate Dictionary (150th Ed. 1981).

What is the legal consequence of the failure of publication in this case? Three cases set out the rule for us:

In State ex rel. Woods v. Tooker (1894), 15 Mont. 8, 37 P. 840, the relator sought a writ of mandamus, requiring the county clerk and recorder of Lewis and Clark County to file in his office a certificate of the relator’s nomination for the office of county commissioner. The respondent answered that the certificate for the office of county commissioner was invalid under the Constitution, in that the amendment had not been properly adopted so that there was no vacancy in the office. What happened was that the constitutional amendment was proposed by the legislative assembly in 1891 and voted upon by the electors in 1892. The 1889 Constitution required proposed amendments from the legislative assembly to be published for three months previous to the next general election. In fact, this particular amendment was published for only two weeks.

The Montana Supreme Court held (DeWitt, J.) that the amendment was null and void because of the faulty publication.

First, Justice DeWitt rejected the claim of the relator that the constitutional language was merely directory. The Court said:

“In another place in the same work [Cooley’s Constitutional Limitations] we find the following language:
“ ‘The fact is this: that whatever constitutional provision can be looked upon as directory merely, it is very likely to be treated by the legislature as if it was devoid even of moral obligation and to be, therefore, habitually disregarded. To say that a provision is directory, it seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so, we have abundant authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory and, if by the legislature habitually disregarded, it seems to us that there is all the more urgent necessity that the courts should enforce it and it also seems to us that there are few evils which can be afflicted by strict adherence to the law so great as that which is done by an habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.’
“We believe this to be the sound and only safe doctrine. It seems to us that the rule which gives to the courts and other departments of the government a discretionary power to treat a constitutional provision as directory, and to obey it or not, at their pleasure is fraught with great danger to the government. We can conceive of no greater dangers to constitutional government, and to the rights and liberties of the people, than the doctrine that permits a less, latitudinous, discretionary construction of the organic law. ‘We are taught by the constitution itself that those who administer this government are divided into three coordinate departments; each of these can only act within its own limited sphere, and they, respectively, are the servants of the sovereign power of the people. There is no power above the people. There is no discretionary power granted in the constitution for either of the departments, nor for all of them united to exercise a discretionary expansion and flexible power against its rigid limitations, even though such limitations were imposed by improvident jealousy. If abuse exists by reason of defects in the constitution, present or prospective, the true source of authority, the people, have the power, and doubtless the wisdom and patriotism, to correct them; and this, in the American idea is the safe and only depository . . .’ ”

15 Mont, at 12-14, 37 P. at 842.

The Supreme Court in Tooker added,

“. . .We therefore have this situation: The method for amendment is provided by the solemnity of the constitutional enactment, and another method of amendment has been attempted to be invoked. We can see no other result but that such attempt is nugatory, and of absolutely no avail . . . . “

15 Mont. at 18, 37 P. at 844.

A second case of constitutional import is Durfee v. Harper (1899), 22 Mont. 354, 56 P. 585. It is an interesting case because of its background. The action began on a petition by Durfee to require the respondent to transfer to a corporation certain shares of stock. Before the Supreme Court got to the main case, however, there was an unusual development. Chief Justice Brantley had represented one of the parties when he was a county attorney in Deer Lodge County and was thus disqualified from sitting on the Supreme Court case. The Supreme Court, then consisting of three members, had called in Judge Frank Henry, from the Sixth Judicial District. The Hon. Wilbur F. Sanders, as amicus, brought to the attention of the Court that it was possible that Judge Henry could not properly sit for the reason that the amendment of the constitution allowing the Supreme Court to call in a district judge to sit was probably unconstitutional.

It appears that the amendment to the Constitution permitting the Supreme Court to call in a district judge to sit had been approved by the voters upon referendum from the Fifth Legislative Assembly. The 1889 Constitution required that an amendment proposed by the legislature should be enrolled in full on the journals of the legislature. This had not been done, and apparently Judge Sanders argued that the lack of such enrollment made the constitutional amendment nugatory. The two judges then constituting the Supreme Court agreed and a two judge court decided the constitutional issue. They looked to State ex rel. Tooker above and other cases. Our Supreme Court declared:

“. . . This distinction between the authority of the legislature in relation to enacting laws and proposing changes in the constitution must not be overlooked, for it emphasizes in an unmistakable way the measure of power which can be exercised effectively by delegated representatives, and that which alone can be exercised by the people in their sovereignty. The legislative assembly can no more subtract from the various steps specified in the organic act to be taken by itself antecedent to submitting amendments to the constitution, than it can amend the constitution without such submission to the people. It may attempt to propose such amendments to the full number allowed, but it is powerless to make its proposals operative to accomplish the fact of an amendment, without first exercising and pursuing its authority in the single mode of proceeding which the people have directly prescribed in all instances where the legislature passes a proposed amendment at all. No argument is needed to uphold the rule that the provisions of our constitution are mandatory and prohibitory, unless by express words declared to be otherwise. The constitution so declares, and the reasoning of Justice DeWitt in State v. Tooker, 15 Mont. 8, 37 Pac. 840, is conclusive upon that proposition. That decision too is to a great extent controlling of the point under examination, as it was there decided that, where the mode by which an amendment to be made to the constitution is clearly pointed out by the constitution itself, such mode is a substantial and essential part of the instrument itself, to be regarded by the legislature as exclusive, and as not permitting any other mode or form to be observed.
“We conclude therefore that the failure to enter on the legislative journals the proposed amendment under which Judge Henry was invited to sit was a disobedience of the constitution itself, and that our duty in expounding the supreme law compels us to decide that the proposed amendment never was proposed as required, and therefore never ought to have been submitted. It was a nullity before it reached the people and was not animated by them, because their own solemn commands empowering its proposal, and specifying the mode thereof, had been entirely ignored by the proponent.” 22 Mont. at 362-364, 56 P. at 855.

The third case is Tipton v. Mitchell (1934), 97 Mont. 420, 35 P.2d 110. Two aspects of this case stand out: 1) The legislature attempted to cure the defect of not placing the constitutional amendment fully on its journals; 2) The Court rejected the idea of two earlier cases that substantial compliance was sufficient.

Tipton v. Mitchell involved a budget act which was proposed by the legislature for constitutional amendment. The proposed amendment had been passed by the legislature in the 22nd Legislative Assembly (1933) and Governor Erickson signed the proposed budget act. The proponents recognized the defect in failing to enroll the amendment in full in the journals and accordingly, Governor Cooney (who had succeeded the resigned Governor Erickson) called the 23rd Legislative Assembly into extraordinary session where attempt was made to cure the defect by recitations that the proposed amendment had been passed and was then set forth in full in the journals of the extraordinary session. When the case came to the Supreme Court, we said:

“In Durfee v. Harper, 22 Mont. 354, 56 Pac. 582, 585, it appeared that the proposed amendment to the Constitution had not been entered in full on the respective journals of the two Houses of the Assembly, as required by section 9 of Article XIX of the Constitution. After a careful examination of all of the authorities in point, the court declared that the amendment was null and void. The learned Justice Hunt, who wrote the opinion, said: ‘An amendment to the constitution, like the constitution, obtains life by the direct power of the people. No other authority can be put above them, or act for them, in respect to effecting changes in their organic law.’ It was pointed out that while the legislators are supreme in the exercise of the constitutional law-making power, in respect to the Constitution they are by that instrument’s terms proposers only of amendments. ‘The legislative assembly can no more subtract from the various steps specified in the Organic Act to be taken by itself antecedent to submitting amendments to the constitution, than can it amend the constitution without such submission to the people.’ The court declared that in expounding the supreme law it was compelled to decide the proposed amendment never was proposed as required, and therefore never ought to have been submitted. ‘It was a nullity before it reached the people, and was not animated by them, because their own solemn commands empowering its proposal, and specifying the mode thereof, had been entirely ignored by the proponent.’ ” (Emphasis added.)

97 Mont. at 429, 430, 35 P.2d at 114.

Then the court in Tipton went on to discuss two earlier cases where it had been held that substantial, rather than literal compliance with the constitution was enough. Those cases were State ex rel. Hay v. Alderson (1914), 49 Mont. 387, 142 P.2d 210, and the Tax Commission Case (Martien v. Porter) (1923), 68 Mont. 450, 219 P. 817. This Court rejected substantial compliance saying:

“All members of the court as now constituted are not satisfied with the majority opinion in the Tax Commission Case. Did not the court say in Durfee v. Harper, supra: ‘Thus, the proposition comes back to the statement that from the people, as a source, alone flows the delegated power of the legislature to even propose amendments to those “unvarying rules” by which “alike the government and the governed” are controlled, and where those rules adopted by the people are part of their constitution, and lay down how this power may be exercised by the legislature, there is no discretion in that body to ignore the commands of the fundamental authority, or override its limitations in great or small matters; and this principle holds good, not only for the legislative, but, so far as applicable, for the judicial and executive, departments of the government as well?’ Is it possible, where a Constitution is involved, to declare a provision mandatory at one time and the same provision directory at another?” (Emphasis added.)

97 Mont. at 431, 37 P.2d at 114.

The faulty compliance with the constitutional requirement was enough to void the proposal and the court in Tipton v. Mitchell stopped the question from being presented to the people for their vote at the upcoming election.

The foregoing cases are determinative. The present Montana Constitution requires “the amendment” to be published as provided by law. The legislature provided that “a summary of the amendment” would suffice. Section 13-27-311, MCA. The statute, if permitted, would itself constitute an amendment to the Constitution insofar as initiatives are concerned and should not be allowed. Any initiative amendment adopted in that manner is, of course, void.

The problem with the error in the voter information pamphlet is not so much that voters might have been misled, although that possibility certainly exists, and the error is significant. The greater problem is the right of the electorate, and responsible officials after the election, to know the exact language upon which the vote was taken. If there is any absolute in this matter, it is that the State Constitution must be expressed in words. Those words must reflect the considered will of the people. The State Constitution cannot be amended by fugitive forms.

Yet the argument is made that because of the widespread availability of radio and television and the use of public panels and the like, that the material flaw in presenting the language of this amendment to the voters should be overlooked on the grounds that there is a reasonable probability that a substantial part of the electorate knew what they were voting upon.

To adopt such an argument is to say that the Constitution may be amended merely by an undefined idea, an idea as vague as “to cure abuses in the courts,” as argued by the proponents in the voter information pamphlet. But only words express ideas, and ideas must be translated to words or ideas cannot be communicated. Thus one person’s idea of “tort reform” may be another person’s idea of “tort irresponsibility.” It is only when express words plain in their meaning outline ideas in clear sharp detail that human minds can grasp the ideas, and their legal consequences. Reasonable minds can and do differ as to the legal consequences of “no person shall be deprived of legal redress for injury” and “no person shall be deprived of this full legal redress for injury.” That difference is the reason for CI-30 in the first place.

These examples are enough to prove that words, or the lack of them, do make a difference. We cannot blind ourselves to this difference, and hold that words given to electors to vote upon are not to be included in the results of their vote. The words in CI-30 certified by the Board of State Canvassers omit the words “this full” given to the electors for their vote. The certified version of CI-30 is therefore illegal and void, because it does not express the considered will of the voting public. The certified language of CI-30 was never, submitted for a vote in the manner expressly required by the State Constitution.

There is evident wisdom in what the constitutional framers provided with respect to publication where initiatives are concerned. In the other two cases, that of convention and of legislative referenda, the proposed amendments are carefully worked over by contending parties whose governmental business at the time is to construct either a constitution or propose amendments to it. In the case of an initiative by the people, not enough adverse input occurs to justify the conclusion that a careful study has been made of the proposed amendment prior to its submission. This case is an example of that. The requirement for publication in full of the true words of an amendment proposed by initiative is necessary so that the electors can make an intelligent choice.

The 1972 convention debate (it was not so much a debate as a discussion) on the subject of publication of amendments by initiative is found in Vol. Ill, beginning at page 508 and extending to 514. The discussion arises on the motion of Delegate Blend to amend the words “at least one newspaper in each county” and to insert instead “the communications media.” The discussion that follows indicates the concern of the delegates that technological developments following 1972 might be such that publication by other means than by newspapers would become feasible. In adopting the present language of Article XIV, Section 9, the Constitutional Convention left open to the legislature to provide for publication in the newsprint and in the broadcast media, but nowhere do the constitutional framers discuss publishing less than the full amendment.

We have examined the history of other constitutional amendments that have occurred since 1972. It is fortunate that CI-30 is the only constitutional initiative which is affected by this decision.

It is noteworthy that paragraph 3 of CI-30 would take away from the judiciary the power to pass upon the validity of legislative enactments establishing, limiting, modifying or abolishing remedies or damages. The Attorney General’s statement of purpose fails to note this significant transfer of judicial power, a point which any “summary” of CI-30 should have included for publication. We note this point as further demonstration that the publication of the Attorney General’s statement of purpose was inadequate to inform the voter of the effect of CI-30, if adopted.

Therefore we determine as a declaratory judgment that the proposed adoption of amendment to Article II, Section 16 of the 1972 Montana Constitution through CI-30 has failed because of material constitutional defects in the manner it was presented to the electors for a vote. It is therefore nugatory and of no effect.

MR. JUSTICES HARRISON and HUNT and HON. JOSEPH B. GARY, District Judge, sitting for MR. JUSTICE MORRISON, concur.

MR. JUSTICE WEBER,

dissenting:

The opinion of the majority, while perhaps defensible on technical legal grounds, fails completely to respect the will of the voters of Montana. The plaintiffs have not shown that the voters were materially misled under any of the issues raised here. I conclude that upholding the people’s vote is at least as defensible as the majority’s opinion, on legal grounds. It is decisively preferable as an expression of this Court’s role in the initiative process.

I first set forth some basic principles on amendment of our Montana Constitution by the initiative process. These basic principles are applicable to all issues before the Court. In their 1972 Constitution, the people of Montana reserved all political power to themselves. Mont. Const. Article II, Section 1 states:

“All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.”

By the 1972 Constitution the people of Montana have retained the exclusive right of governing themselves and have also retained the right to alter the Constitution. Mont. Const. Article II, Section 2 states:

“The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary.”

By a provision which was not included in the 1889 Constitution, the 1972 Constitution provides that the people may propose constitutional amendments by initiative, stating in Mont. Const. Article XIV, Section 9:

“(1) The people may also propose constitutional amendments by initiative. Petitions including the full text of the proposed amendment shall be signed by at least ten percent of the qualified electors of the state. That number shall include at least ten percent of the qualified electors in each of two-fifths of the legislative districts.
“(2) The petitions shall be filed with the secretary of state. If the petitions are found to have been signed by the required number of electors, the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election,
“(3) At that election, the proposed amendment shall be submitted to the qualified electors for approval or rejection. If approved by a majority voting thereon, it shall become a part of the constitution effective the first day of July following its approval, unless the amendment provides otherwise.”

These provisions emphasize the desire of the people to be able to amend the Constitution by initiative without being required to go through any of the three branches of government, and in particular the judicial branch. In considering the present initiative, this Court should carefully honor the basic rights retained by Montana’s citizens. These rights include the right of the people to alter or abolish the 1972 Constitution — a reserved power of unlimited breadth. The present initiative was approved by a clear majority of the electorate. This amendment by initiative vote of the people should be invalidated only if we conclude there is a reasonable probability that a substantial part of the electorate were misled in casting their votes in favor of the Initiative. In considering the issues I also keep in mind that we now have multi-faceted means of communication with the electorate, which include not only publication in newspapers, but also both television and radio, all of which were extensively used in the months preceding the vote on the present Initiative.

The majority has invalidated the Initiative ballot on the basis of two errors. The first is an error in printing the text of the Initiative in the 1986 Voter Information Pamphlets. Sections 13-27-401 through 410, MCA, set forth the requirement and procedure for the secretary of state to prepare and distribute to Montana voters information pamphlets on ballot issues at the next election. These include requirements that for each ballot issue the pamphlets must contain the title, fiscal statement, and complete text, as well as the form in which the issue will appear on the ballot, and arguments and rebuttal arguments submitted by proponents and opponents. As the majority has pointed out, there was an error in the printing of the full text of CI-30 in the voter information pamphlets prepared for the 1986 general election. The error was in subsection (2), where the words “this full” were printed this full, instead of thisHFull. The voter information pamphlet does not explain what is meant by the underlining and interlineation. However, underlining is commonly used to designate material which is being added; interlineating to designate material deleted. The error in printing indicates that the amendment adds, rather than deletes, the words “this full” from Mont. Const. Article II, Section 16.

The error was discovered on October 23, 1986. The Secretary of State points out that this was after his office had sent the pamphlets to the counties and the counties had distributed the pamphlets to the voters. The Secretary of State took what he argues was the only possible corrective action at that late date: he issued a news release which explained that an error had occurred in the voter information pamphlets, and described that error. Nevertheless, the majority holds that the error misled the voters on a critical aspect of CI-30.

The text of the Initiative as misprinted in the voter information pamphlets was only a part of the information contained in the same pamphlets. The pamphlets also contained extensive printed arguments by both proponents and opponents of the measure. A voter reading the pamphlet would have understood that the opponents were opposing the elimination of the words “this full” from the constitutional provision. The majority also fails to consider the publication by the Secretary of State describing the error in the voter pamphlets, and the wide discussion of this Initiative in the printed media, the radio and television, as well as the debate as reported in the media. Without question this Initiative generated a widespread media discussion which continued for months prior to the election date.

The plaintiffs chose to bring this declaratory judgment action in this Court rather than proceeding in district court. As a result, neither side has had the opportunity to produce evidence of the effect of the error upon the vote of the electorate. Plaintiffs contend that because the proponents cannot prove that the error had no effect on the vote, the election must be invalidated. Since the plaintiffs chose this forum where no such evidence could be presented, I have some difficulty attaching validity to this contention.

I have attempted to consider all of the foregoing factors, and to keep in mind carefully the rights of the people to amend their Constitution by the initiative process. I recognize that the error in the voter information pamphlets is significant and presents a difficult issue. However, based upon the nature of the error and the wide availability of accurate information regarding the Initiative through all forms of media, I conclude that the error is not a proper basis for invalidating the election. I cannot conclude there is a reasonable probability that a substantial part of the electorate was misled by the error. In the absence of evidence to the contrary, I conclude that the electorate of Montana has the capacity to analyze the issue raised by the Initiative and to reach an accurate decision on the vote to be cast notwithstanding the error in the voter information pamphlet. I would hold that the error in printing the text did not invalidate the election.

The second reason used by the majority to invalidate the election on CI-30 is publication in each county of summary language instead of the entire text of the Initiative. Article XIV, Section 9(2) of the Montana Constitution provides, in relevant part:

“. . .the secretary of state shall cause the amendment to be published as provided by law twice each month for two months previous to the next regular state-wide election.”

The majority holds that this constitutional provision requires the Secretary of State to publish the full text of the amendment. The legislature obviously disagreed, because it adopted the following statutory provisions for publication in Section 13-27-311(2), MCA:

“The secretary of state may arrange for newspaper, radio, or television publication of proposed constitutional amendments in each county. A summary of the amendment as provided by the attorney general, as described in 13-27-312 or 13-27-315, would suffice for the publication required by this section and should be made at least twice each month for 2 months previous to the election.”

The majority holds that this statute is unconstitutional because it does not require the full text of the amendment to be published and instead allows a summary of the amendment as provided by the Attorney General. It has not been explained why this issue was not raised in the plaintiffs’ initial appearance before this Court in October 1986.

The official transcript of Montana’s 1972 Constitutional Convention (Con Con) does not answer the question of intent conclusively; there is no statement of the collective view of the delegates. The discussion of this section centered around whether publication must be in newspapers or whether it could be through other media, such as television. In amending the section to allow publication other than in newspapers, the word “full” was deleted from the text of the section before “amendment shall be published.” The Con Con transcript contains no explanation of that deletion.

The majority cites State v. Tooker (1894), 15 Mont. 8, 37 P. 840, as controlling on this issue. In that case, a constitutional amendment was published for two weeks before the election, instead of “published in full in at least one newspaper in each county (if such there be), for three months previous to the next general election . . . “ as required by Montana’s 1889 Constitution, Article 19, Section 9. This Court stated that:

“The method for amendment is provided by the solemnity of the constitutional enactment, and another method of amendment has been attempted to be invoked. We can see no other result but that such attempt is nugatory, and of absolutely no avail.”

Tooker, 37 P. at 844.

It is important to note that the 1889 Constitution required publication in full of the constitutional amendment for three months, while publication in Tooker was only made for two weeks. The 1889 constitutional provision sets forth the considered judgment of the people that a century ago it was essential to publish a constitutional amendment in full and for a period of three months previous to an election. That was a clearly understandable and reasonable requirement during a period of time in which newspaper publication was the only reasonable means of publication other than word of mouth. The present age of mass electronic communication presents an entirely different situation. The present constitutional provision does not require the amendment to be published “in full”. In addition, the 1972 constitutional provision provides that the amendment is to be published “as provided by law”. Clearly the people recognized by this provision that it was appropriate for the legislature to provide the manner of publication. The legislature did so in Section 13-27-311, MCA, and provided that the summary of the amendment would suffice. I therefore conclude that Tooker is not controlling in the present case.

After having studied the text of Mont. Const. Article XIV, Section 9(2) and the transcript of the discussion at the Con Con, I conclude that allowing publication of the statement of purpose instead of the text of the Initiative does not exceed the discretion given to the legislature in providing for publication of proposed amendments. I would therefore conclude that Section 13-27-311(2), MCA, is not unconstitutional. I find no indication that a substantial part of the electorate was misled, and conclude that publication of the statement of purpose instead of the text of the Initiative is not cause to void the election.

The majority has not addressed the three other issues which the plaintiffs raised. I will, therefore, discuss them only briefly. First, plaintiffs argue that the Initiative is unconstitutional because it proposes more than one amendment in a single ballot. That argument fails under the established test of whether the amendment effects and carries out one general object or purpose connected with one subject. State v. Cooney (1924), 70 Mont. 355, 366, 225 P. 1007, 1011. Here, the Initiative alters only one paragraph of our Constitution and covers one general subject. To require that each word or phrase changed in this Initiative be submitted separately to the voters would be an exultation of form over substance.

The plaintiffs also argue that the Initiative would violate the doctrine of separation of powers by transferring judicial power to the legislature. Mont. Const. Article III, Section 1 prohibits one branch of government from exercising any power belonging to one of the other branches except as the Constitution permits. There is no prohibition of the people shifting a power belonging to one branch to another branch. I conclude that the Initiative does not violate the constitutional provision on separation of powers.

Finally, plaintiffs argue that the Initiative is unlawful or unconstitutional because the Attorney General’s statements of purpose and implication are untrue, misleading, and prejudicial. The standard of review of the adequacy of the statements was set forth in State ex rel. Wenzel v. Murray (1978), 178 Mont. 441, 448, 585 P.2d 633, 637-38:

. . as long as the Attorney General in his 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, he has followed the law . . . His discretion as to the choice of language ... is entirely his.”

Here, the Attorney General was faced with an amendment to a constitutional provision with uncertain legal implications, stemming from this Court’s non-unanimous decisions in White and Pfost. He was limited, under Section 13-27-312, MCA, to a statement of 100 words to explain the purpose of the measure and 25 words for the statement of implication. Such statements cannot capture all ramifications of the Initiative. The Initiative itself is short enough to be easily read, giving the statements a more limited function than they would have with a longer initiative. Balancing all of these factors, I would conclude that the Attorney General’s statements explain the general purpose of the amendment in ordinary plain language in a sufficient manner to meet the requirements of Section 13-27-312(4), MCA, and to maintain the neutrality of the government.

Because I conclude that none of the issues raised by plaintiffs require that the results of the November 1986 election on CI-30 be declared void, I would deny the application for declaratory judgment.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON concur in the foregoing dissent.