author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY and MR. JUSTICE HUNT,

text:
    STATE OF MONTANA, ex rel., MONTANA CITIZENS FOR THE PRESERVATION OF CITIZENS’ RIGHTS, et al., Plaintiffs and Relators, v. JIM WALTERMIRE, Secretary of State, et al., Defendants and Respondents, and Montana Liability Coalition, Real Party in Interest.
    No. 86-400.
    Submitted Oct. 7, 1986.
    Decided Dec. 11, 1986.
    729 P.2d 1283.

      Goetz, Madden & Dunn, James H. Goetz argued, Bozeman, for plaintiffs and relators.
    Mike Greely, Atty. Gen., James M. Scheier argued, Asst. Atty. Gen., H. Elwood English argued, Secretary of State’s Office, Helena, Gary Pringle, Clerk & Recorder, Bozeman, 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 WEBER

delivered the Opinion of the Court.

Plaintiffs and relators filed an original proceeding in this Court for a writ of injunction and other appropriate relief to prevent Constitutional Amendment Initiative 30, the “liability limits initiative,” from appearing on the November 1986 Montana election ballot. In an order dated October 7, 1986 (copy of order attached to this opinion), this Court denied the plaintiff’s application for relief. This opinion explains the reasons for that order.

The issues are:

1. What initiative matters are appropriate for exercise of the Court’s pre-election jurisdiction?

2. Is the Initiative invalid because it presents more than one amendment in a single ballot, in violation of Mont. Const. Article XIV, Section 11?

3. Is the Initiative unconstitutional because it attempts to transfer judicial power to the legislative branch in violation of the doctrine of separation of powers?

4. Are the Attorney General’s statement of purpose and statement of implication untrue, misleading, and prejudicial?

Plaintiffs’ standing to bring this action is not disputed, nor is it disputed that a writ of injunction could be issued by this Court. Therefore those issues, although raised, will not be discussed in this opinion.

After petitions containing the necessary number of signatures of Montana voters had been filed, CI-30 was certified to the Governor by the Secretary of State on July 3, 1986. The Initiative amends Mont. Const. Article II, Section 16, as follows (new portions are underlined, deleted portions are lined through):

“BE IT ENACTED BY THE STATE OF MONTANA:
“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 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 salerdenial, 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 2/z vote of each house of the legislature.
“ ‘Section 2. Effective Date. This amendment is effective on approval of the electorate.’ ”

Plaintiffs filed their application for writ of injunction on August 28, 1986. On September 2, 1986, this Court ordered that briefs be filed by the parties, reserving the issue of whether jurisdiction would be accepted. On October 7, 1986, oral arguments were heard and this Court denied plaintiffs’ application.

Three members of the Court have already issued their dissent to this opinion. The dissent has addressed in substantive detail each of the issues raised by the parties. We do not respond to the detailed issue analysis of the dissent because, as more fully explained below, we concluded that it would be improper for us to consider the issues prior to the election.

I.

What initiative matters are appropriate for exercise of the Court’s pre-election jurisdiction?

Plaintiffs assert that this matter is appropriate for assumption of jurisdiction under the criteria set forth in State ex rel. Greely v. Water Court of State (Mont. 1984), [214 Mont. 143,] 691 P.2d 833, 41 St.Rep. 2373, final opinion (1985), [219 Mont. 76,] 712 P.2d 754, 42 St.Rep. 1856: it involves a constitutional issue of major statewide importance, the questions involved are pure legal questions of statutory or constitutional construction, and urgency and emergency factors make the normal appeal process inadequate. The Greely case involved challenges to acts of the Water Court of the State of Montana under the then-existing statutes. It was not, like this case, a challenge to a proposed law. For that reason, we conclude that the Greely factors are not dispositive of the issues here. In a preelection challenge to the constitutionality of an initiative, other considerations are also involved.

The reasons which have been recognized for this Court’s intervention in the initiative process prior to an election are quite limited. This Court has assumed original jurisdiction over preelection challenges when the initiative was not properly submitted under the election laws, e.g., State ex rel. Livingston v. Murray (1960), 137 Mont. 557, 354 P.2d 552, and where the initiative was unconstitutional on its face, e.g., State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d 761.

Both the Livingston and Steen cases were decided prior to the adoption of the 1972 Montana Constitution. Also of particular importance is the Rule 17, M.R.App.Civ.P., provision that the assumption of original jurisdiction is discretionary with this Court.

The right retained by the people of Montana to change our Constitution by initiative is unique. The people do not have such a right under the federal Constitution nor under many state constitutions. In Montana this right of constitutional change by initiative was first inserted in the 1972 Constitution. As we stated in our opinion in State ex rel. Mont. School Board Ass’n. v. Waltermire (1986) [224 Mont. 296,] 729 P.2d 1297, [43 St. Rep. 2198], we should decline to interfere with this right of constitutional change by initiative unless it appears to be absolutely essential.

II

Is the Initiative invalid because it presents more than one amendment in a single ballot, in violation of Mont. Const. Article XIV, Section 11?

The plaintiffs say that the Initiative seeks to: 1) remove the fundamental right to bring a civil action in a court of law; 2) remove from constitutional protection the right to be compensated for every injury; 3) change the standard of constitutional review under Article II, Section 16 to rational basis analysis; 4) eliminate the authority of the Court to review legislative enactments under Article II, Section 16; 5) give the legislature sole authority to determine the existence and extent of individual rights and remedies; and 6) require a % majority of the legislature to approve specific dollar caps on damages. Plaintiffs argue that these should not all be grouped into one initiative. The defendants contend that it is entirely proper that an initiative be multifaceted so long as it affects only one section of a constitution as this one does.

Even if plaintiffs’ view is correct, this type of multiplicity is not a proper basis for this Court’s intervention in the initiative process prior to election. This challenge does not constitute the type of question of unconstitutionality on the face of the Initiative over which this Court has previously accepted pre-election jurisdiction. Neither is this a challenge of the propriety of submission of the Initiative to the voters. Without ruling upon the merits of the contention, we declined to consider this issue prior to election.

III

Is the Initiative unconstitutional because it attempts to transfer judicial power to the legislative branch in violation of the doctrine of separation of powers?

Plaintiffs argue that the Initiative renders the rights declared in Article II, Section 16 of the Montana Constitution meaningless because of the provision that the section “shall not be construed as a limitation upon the authority of the legislature” to enact statutes affecting the rights. They maintain that the amendment deprives the courts of the right of review over any legislative enactments pursuant to the section, thereby violating the doctrine of separation of powers.

Again, unless an initiative is clearly unconstitutional on its face or has been improperly submitted, it would not be appropriate for this Court to remove it from the ballot prior to the voters’ consideration. This challenge is not addressed to the facial constitutionality of Initiative 30, but to its constitutionality as applied. It could be argued that the voters could go so far as to completely eliminate Mont. Const. Article II, Section 16, without affecting the powers of the judicial branch of state government. For those reasons we declined to exercise pre-election jurisdiction over this question.

IV

Are the Attorney General’s statement of purpose and statement of implication untrue, misleading, and prejudicial?

The statutory procedure for opponents’ challenges to an initiative’s title (the statement of purpose and statement of implication prepared by the Attorney General) is set out at Section 13-27-316(2), MCA. That section provides that the title of an initiative may be challenged in the District Court for Lewis and Clark County within ten days of the date of certification to the governor.

This Initiative was certified to the Governor on July 3, 1986. Plaintiffs failed to make any objection to the title under the procedure outlined in Section 13-27-316(2), MCA, and have shown no reason justifying this failure. We conclude that this issue is exactly the type of challenge contemplated under Section 13-27-316(2), MCA, and discussed more fully in our opinion in State ex rel. Boese v. Waltermire (1986), [224 Mont. 230,] 730 P.2d 375, [43 St.Rep. 2156]. We will not lightly interfere with the constitutional right of the people of Montana to make and amend our laws through the initiative process, nor with the legislature’s protection of that right through statutory provision for timely challenges to initiative titles. We therefore declined to accept jurisdiction where the procedure in Section 13-27-316(2), MCA, could have been, but was not, followed.

Plaintiffs’ application for relief was denied without prejudice.

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

ORDER

Plaintiffs and Relators have filed on original proceeding in this Court for Writ of Injunction and other appropriate relief, in which they challenge the constitutionality of Constitutional Initiative 30, the “liability initiative.” Briefs, motions, and other materials have been filed by Plaintiffs and Relators, Defendants and Respondents, and Real Party in Interest. Oral argument was held before the Court on this date. The Court has concluded it is advisable to immediately issue its Order to inform all parties of the result.

IT IS ORDERED:

(1) That the Application for Writ of Injunction and Other Appropriate Relief is denied in its entirety, without prejudice to consideration of the issues in other proceedings.

(2) That an opinion of this Court will be issued at a later date setting forth the basis for this Order.

DATED this 7th day of October, 1986.

s/J.A. Turnage, Chief Justice

s/Fred J. Weber, Justice

s/John Conway Harrison, Justice

s/L.C. Gulbrandson, Justice

HONORABLE JOSEPH B. GARY, sitting in place of MR. JUSTICE FRANK B. MORRISON, JR., would grant the writ of injunction.

MR. JUSTICE SHEEHY and MR. JUSTICE HUNT,

dissenting [43 St. Rep. 1869]:

On October 7, 1986, in an original proceeding before this Court captioned as above, the majority of this Court, consisting of Chief Justice J. A. Turnage and Justices Fred J. Weber, John Conway, Harrison and L. C. Gulbrandson handed down an Order denying the application for writ of injunction and other appropriate relief in its entirety.

The remainder of the Court, consisting of Justices John C. Sheehy, William E. Hunt, Sr. and the Hon. Joseph B. Gary, District Judge, sitting in place of Mr. Justice Frank B. Morrison, Jr., dissented from the majority Order, stating they would grant the injunction. We file this Dissenting Opinion in accordance with Section 3-2-204, MCA, in support of our Dissent to that Order.

In the Order, the majority recited that the application was denied “without prejudice to consideration of the issues in other proceedings.” We do not know if this means that the majority will defer consideration of the issues as we discuss them in this Dissent. It is our position that the issues raised by the application and the opposition thereto must be tackled immediately and this Opinion will therefore entail a full discussion of the issues.

JURISDICTION AND STANDING

In this Dissent, we will refer to all of the plaintiffs as “relators.” The real party in interest in this case is the Montana Liability Coalition, to which we will refer as the “Coalition.” The remaining defendants and respondents are incidental parties brought before us because they are elected officials having to do with the conduct of elections in this state, including the coming general election on November 4, 1986.

Relator Montanans for the Preservation of Citizens’ Rights is an ad hoc group of individual Montana citizens, voters and taxpayers formed for the purpose essentially of opposing proposed Constitutional Initiative No. 30, now set for the ballot on November 4, 1986, who claim they are individually, directly and adversely affected by the proposed Initiative. Relator Montana State AFL-CIO is a federation of labor organization workers who have rights and remedies protected by Article II, Section 16 of the Montana Constitution which may be impaired by Constitutional Initiative No. 30. Relator Women’s Law Caucus is a section of the Student Bar Association of the University of Montana, Law School, who contend that the preservation and enhancement of women’s rights is involved in the Initiative and is adversely threatened thereby. Relator Tyndall Cox is a Montana citizen, voter and taxpayer who has sustained a Workers’ Compensation injury, and who has a third-party action against a contractor who may be liable for all or part of the injuries he sustained and contends his cause of action is adversely threatened by the Initiative. Relator Gary Hendricks is 31 years of age, a citizen, and a paraplegic from an accident for which he is presently maintaining an action against an automobile manufacturer. Hendricks contends that he has a right to full compensation for his injuries which is directly and adversely affected by the proposed Initiative. Relator Pam McClain is a citizen, taxpayer, voter, the mother of a minor daughter who has sustained a severe and disabling brain injury. McClain is presently maintaining a court proceeding for damages and again she contends the proposed Initiative will adversely affect the claim.

Constitutional Initiative No. 30, set out more fully hereafter in this Dissenting Opinion, relators contend, and the dissenters agree, has serious constitutional defects which render the submission of the Initiative to the voters in the general election of November 4, 1986 impermissible.

Relators contend that unless enjoined by this Court, the election officials will submit to the electors in the general election of November 4, 1986 CI-30 as it is now constituted, and that the same will adversely affect their fundamental rights to pursue full redress for injury to property, person or character; that no other speedy or adequate remedy lies to them at law or otherwise and that the following issues should be considered by this Court:

1. The statement of purpose of the Attorney General and the statements of implication contained in the Initiative are false and misleading.

2. The proposed Initiative invades the separation of powers doctrine by transferring judicial authority to the legislature.

3. The Initiative does not meet the constitutional requirement of presenting a single subject to the voters.

The Coalition responds:

1. That the issue of the sufficiency of the statements of the Attorney General is barred by Section 13-27-316(2), MCA and by laches by the relators.

2. That the Initiative merely restores standards of judicial review recently enlarged by this Court as to the right of full redress.

3. That the separation of powers provision of the Montana Constitution authorizes the division of judicial powers under provisions of Article III, Section 1.

4. That the Initiative presents a single subject, though multi-faceted, to the electors.

The Coalition further responds that if this Court accepts jurisdiction on the sufficiency of the statements of the Attorney General, reasonable minds could differ on whether the statements are false, partial or prejudicial.

It is significant that in its response, while the Coalition denies our jurisdiction of the issue of the sufficiency of the Attorney General’s statements, it does not contest this Court’s jurisdiction immediately to hear and decide the constitutional issues raised by the relators as to their claims of defects in CI-30.

It is clear, therefore, that the pleadings present justiciable issues which involve a statewide effect, and have deep constitutional implications. Unless this Court determines the issues, substantial deleterious harm may result. Accordingly, the parties have standing and this Court should accept immediate jurisdiction to determine the issues presented. Grossman v. State of Montana, et al. (Mont. 1984), [209 Mont. 427,] 682 P.2d 1319, 41 St.Rep. 804. See Section 3-2-205(2), MCA.

The effect of the majority Order to which we have dissented therefore is to decline to decide the substantive issues when all parties concede they should be decided by us. The refusal of the majority in this case to decide such issues is one of the reasons we have dissented.

WHETHER THE ISSUE OF THE SUFFICIENCY OF THE ATTORNEY GENERAL’S STATEMENTS IS BARRED

The 1972 Montana Constitution provides that the people may propose constitutional amendments by initiative. Article XIV, Section 9. When a petition containing a sufficient number of signatures has been filed with the Secretary of State within the time required by the constitution or by law, it is the duty of the Secretary of State to certify immediately to the Governor that the completed petition has been officially filed. Section 13-27-308, MCA. In this case, the Attorney General certified the CI-30 to the Governor on July 30, 1986. It is the duty of the Secretary of State to transmit a copy of the ballot form to the Attorney General on the same day the completed petition is certified to the Governor. Section 13-27-310, MCA. It is the duty of the Attorney General, through procedure set up on Section 13-27-312, MCA, to provide for the ballot a statement of purpose, and statements of the implications of a vote for and against the measure. The statement of purpose and the statements of implication must express a true and impartial explanation of the proposed ballot issue in plain easily-understood language and may not be argumentative or written so as to create prejudice for or against the measure. Section 13-27-312(4), MCA. Persons who oppose the Initiative and do not believe that the statements of purpose and of implication satisfy the requirements of law may within ten days of the date of certification to the Governor petition the District Court in Lewis and Clark County for relief.

Relators did not proceed in the District Court, but instead filed an original action in this Court on August 28, 1986. In the meantime, the Secretary of State had certified the ballot to the county election administrators on August 20, 1986, and had awarded the printing contract for the voter information packet on August 21, 1986.

The Coalition contends that the Relators are barred in this Court because they did not first seek relief in the District Court. Yet the statute upon which the Coalition relies for opponents’ action to commence in the District Court is at most permissive. Section 13-27-316(2), provides:

“If the opponents of a ballot measure believe that the statement of purpose, the statements of implication of a vote, or the fiscal statement formulated by the Attorney General pursuant to 13-27-312 do not satisfy the requirements of 13-27-312, they may, within 10 days of the date of certification to the Governor that the completed petition has been officially filed, file an action in the District Court for the County of Lewis and Clark challenging the adequacy of the statement and requests to the court to alter the statement.”

It is important to note that Section 13-27-316 is not an imperative statute. The word “may” must be interpreted as permissive only. This Court has had a bitter prior experience with interpreting the word “may” as “must,” which it did in State ex rel. Interstate Lumber Company v. District Court (1918), 54 Mont. 602, 172 P.1030. The holding was repudiated in Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151 and in Johnson v. Ogle (1945), 117 Mont. 419, 159 P.2d 337. Following up on these cases, this Court in Love v. Mon-O-Co Oil Corporation (1958), 133 Mont. 56, 319 P.2d 1056, again decided that the word “may” should not be given the force of “must.” Our last expression on the subject occurred in Clark Fork Paving, Inc. v. Atlas Concrete and Paving (1978), 178 Mont. 8, 582 P.2d 799, 781, where we said that the word “may” as an exception to the statute [a venue statute] “needs to be read as a permissive word, and not as the imperative must.”

The reason given by the majority for the order denying relief, as that reason was expressed to us in this case, is that had the relators brought their action in the District Court, and there raised the sufficiency of the statement of purpose and the statements of implication, the District Court could have cured the' same in the manner provided Section 13-27-316, MCA. Since Section 13-27-316, is purely permissive, however, the majority, in denying relief, must be relying on laches, the other ground raised by the Coalition in its opposition to consideration of the sufficiency of the statements of purpose and implications.

Laches is really a species of equitable estoppel. Generally it applies when the inaction of one party results in prejudice to another party or induces another party to change his position to his prejudice. Even though it may be argued that the Coalition has been prejudiced because the statement could have been altered in the District Court, that argument cannot apply to this case. The ten days provided in the permissive statute would be insufficient in this case to formulate the issues that relate to the statements here involved. Further it would be impossible, as the Coalition has argued before us, for the District Court to compose a statement of 100 words which would adequately advise the voter of the issues involved in CI-30. Moreover, there are parties interested, not represented here, whose rights are involved, the thousands of Montana residents whose fundamental rights to full redress before the courts are jeopardized by the Initiative.

This Court has at least a minimum duty to make certain in a proper case, when this Court has the power to act, that when voters exercise their ballot right to determine a constitutional initiative, they are adequately informed of the purpose of the initiative in a true and impartial manner. The majority here by their Order denying relief place greater stock in compliance with a permissive statute than in making certain that initiative issues are truly and impartially stated.

There is a further and very compelling reason why this Court should not hesitate now to examine the sufficiency of the statements in CI-30. That reason is that under the statutory scheme for initiatives, the opportunity of opponents to object to statements approved by the Attorney General comes far too late in the game. Before a petition for initiative action is ever circulated for signatures, its form must first be submitted to the Legislative Council, to the Secretary of State, and to the Attorney General. Section 37-27-202, MCA. These officials must review the form of the petition, including the statement of purpose and the statements of implication and approve or reject the form of the petition before signatures are solicited. There is no statutory provision then for an objector to the Initiative to object to the statements before signatures are procured although the proponents of the measure are given the right then to go to court if they do not agree with the approved form of the petition. Section 13-27-316(1), MCA. Thus in this case, the petition itself as it was circulated for signatures, contained a statement of purpose and statements of implication approved by the Secretary of State and the Attorney General, which as we shall demonstrate were false. Who can say that the signatures would have been obtained if the signers knew in truth what the form of the Initiative masked? There are no equitable grounds for the application of laches against the relators here under the facts of this case. If the District Court or this Court were to revise the statement of purpose to its true intent, and we permitted a vote on a revised form in this case, the issue on the ballot would be substantially different from the issue petitioned for by those signing the petition.

The final point, which we hope will be raised some day in a proper case, is that the adoption of Section 13-27-316, MCA, by the Legislature is in excess of its legislative power. It is a rule of procedure and rules of procedure are the business of this Court subject only to disapproval by the Legislature. Article VII, Section 2(3), 1972 Montana Constitution.

The last contention on which laches might be based is the argument of the elected officials that the ballots have been printed and sent out, and that it would be expensive now to change them. Such an argument is balderdash. We have interrupted the ballot process at as close or closer intervals. See for example State ex rel. Harper v. Waltermire (Mont. 1984), [213 Mont. 425,] 691 P.2d 826, 41 St.Rep. 2212.

THE FALSITY OF THE BALLOT ISSUE

The basic premise of CI-30, is as follows. As the issue will appear on the ballot, the voters will be given the impression that by their affirmative vote, the Legislature for the first time will have the right to determine the rights and remedies for injury or damage to person, property or character. That premise is baldly false. As long as we have been a state, the Legislature has had that power.

We set out for the reader the full text of CI-30, as it will appear on the ballot:

“[ ] FOR amending the Montana Constitution to authorize the Legislature to determine the rights and remedies for injury or damage to person, property, or cháracter.
“[ ] AGAINST amending the Montana Constitution to authorize the Legislature to determine the rights and remedies for injury or damage to person, property, or character.”

The language of the Attorney General’s “Statement of Purpose” will not appear on the ballot, nor will there appear the text of the Initiative as it is proposed. If the voter desires to examine the Attorney General’s explanatory statement, he/she must look to the “1986 Voter Information Pamphlet” promulgated by the Secretary of State. For the benefit of the reader, we set forth in full the Attorney General’s explanatory statement of purpose:

“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.”

Further, if the voter desires to acquaint himself/herself with the full text of the Initiative to determine what it says, he/she will have to find it on a separate page of the 1986 Voter Information Pamphlet.

Only in those counties, if any, not having an abbreviated form of ballot (Section 13-27-501, MCA) will the Attorney General’s explanatory statement and the statements of implication upon which the vote is taken appear in juxtaposition to each other.

For the benefit of the reader, the full text of the Initiative, as it appeared on the signed petitions, is here set forth:

“BE IT ENACTED BY THE STATE OF MONTANA:
“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 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-admtnistered-Ayithottt-sale, denial 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.”

[NOTE: Words struck out indicate words to be deleted by the Initiative. Underlining indicates new material.]

The so-called “Statement of Purpose” of the Initiative that was approved by the Attorney General and the Secretary of State and probably by Legislative Council, before the petitions for signatures were circulated, appeared on all the petitions that were signed. It will not appear on the ballot itself. The statement is palpably false.

The Statement of Purpose starts out by telling the voter that the Initiative “would amend” the Montana Constitution “to authorize the Legislature to determine the rights and remedies for injury and damage to person, property or character.” As we will demonstrate below, the Legislature has always had that authority. The next sentence of the Statement of Purpose, however, is particularly misleading and deceitful. It states, “Currently the Constitution does not permit limits on these rights and remedies.” There is no legal or statutory basis for that statement.

Article V, Section 1, 1972 Montana Constitution provides, “The Legislative power is vested in a legislature . . .” The 1889 Montana Constitution carried the same language. Article V, Section 1. In State ex rel. DuFresne v. Leslie (1935), 100 Mont. 449, 50 P.2d 959, we said:

“The sovereign power of the state rests with the people. The legislative assembly, as the authorized representative of the people, exercises this sovereign power.
“. . . It is very clear that, except for limitations placed upon the power of the Legislature, first, by the Constitution of the United States and, second, by the Constitution of the State, the will of the legislative body may be freely exercised in all legislative matters unrestricted.”

100 Mont. 452-453, 50 P.2d 961.

Similar language regarding the plenary power of the Legislature will be found in Mills v. Stewart (1926), 76 Mont. 429, 247 P. 332; State ex rel. Evans v. Stewart (1916), 53 Mont. 18, 161 P. 309; State v. Camp Sing (1896), 18 Mont. 128, 44 P. 516.

In Shea v. North Butte Mining Company (1919), 55 Mont. 522, 179 P. 499 (amazingly relied on by the Coalition), this Court defended the right of the Legislature to establish a Workers’ Compensation Act which took away from injured workers covered by the Act the right to go to court against their employer. We held that no Constitutional guarantee was impinged by the abolition through the Legislature of the injured parties’ common law rights against the employer and the substitution of a Workers’ Compensation Act.

Thus it has always been recognized that the Legislature has full authority “to determine the rights and remedies for injury or damage to person, property or character” although the ballot issue under CI-30 would imply that it has no such power.

Nor has the Legislature been reticent in using its power to limit rights and liabilities. It has provided measures of damages in all civil actions (Title 27, Part 3, MCA); provided for the survival of causes of action in cases of death, (Section 27-1-501, MCA); accorded minors the right to bring a civil action, (Section 27-1-511, MCA); accorded immunity from suit for legislative acts and omissions, (Section 2-9-111, MCA); and this Court has upheld restrictive access to the courts under the Montana Medical Legal Panel Act (Title 27, Chapter 6, MCA). There are hundreds of other examples.

Plainly, the Legislature is fully authorized to determine the rights and remedies for injury or damage to person, property or character, and that authority has been fully backed by this Court. The bald assertion otherwise contained in the Statement of Purpose in CI-30 is pointedly and palpably false.

In the same light, the issue as presented to the voters on the ballot in the Statements of Implication is equally deceitful. Thus the voter is told:

“[ ] FOR amending the Montana Constitution to authorize the Legislature to determine the rights and remedies for injury or damage to person, property, or character.
“[ ] AGAINST amending the Montana Constitution to authorize the Legislature to determine the rights and remedies for injury or damage to person, property, or character.”

No more slick or cunning masking of the true intent of CI-30 could be devised than what is presented to the voter here to vote “FOR” or “AGAINST.” What voter would not be “for” giving the Legislature such authority? What kind of voter would be “against” giving the Legislature such authority? The designers of the Initiative have cleverly disguised the derogatory effect of the Amendment by masking the Statements of Implication in seemingly innocent words and phrases. The Statements of Implication are fakery of the worst kind.

FALSITY BY SILENCE

False as the Statement of Purpose and the Statements of Implication are in what they expressly state, they are equally false in what them omit to tell the voter or the petition signer about the effect of the Initiative.

The statements do not tell the voter that passage of the Initiative will take away every person’s right to a speedy remedy for every injury of person, property, or character. The word “every” is deleted in the Initiative’s Section 16(1). The word “every” in that context has been a part of our State’s Constitution since 1889. See Article III, Section 6, 1889 Montana Constitution.

The statements do not tell the voter that their right of redress for injury will no longer be a full right. The words “this full” describing legal redress were deleted in Section 16(2) of the Initiative.

Perhaps worst of all, the statements do not tell the voter that all judicial power to review and construe the validity of actions taken by the Legislature under the Initiative is taken away. The Legislature will become the sole judge of the legality of its actions under the Initiative. It should be clear that such a drastic transference of the judicial power from the courts to the Legislature should be a subject of advice to the voter in the Statement of Purpose and in the Statements of Implication, and not hidden away in the arcane provisions of the Initiative.

Finally, the statements do not advise the voter that the authority given the Legislature if the Initiative passes is not merely limited to “tort reform.” Every right to remedy, of every kind and nature, will be locked away from judicial review whenever the Legislature acts under the Initiative.

It was the purpose of the constitutional delegates in constructing the 1972 Montana Constitution to open up the initiative process for the people. They provided in Article III, Section 4 that the people may enact laws by initiative. They further provided in Article XIV, Section 9, that the Constitution itself can be amended by initiative. With respect to initiatives which propose to enact laws, the State Constitution provides that the sufficiency of the initiative petition shall not be questioned after the election is held. Article III, Section 4(3). No such provision appears with respect to initiatives which would amend the Constitution. It may be fortunate for the people of this state that the sufficiency of the petitions for this Constitutional Initiative may be questioned after the election. Otherwise the high purpose of the constitutional delegates to preserve in the people the power to define their constitutional rights could be subverted by petitions circulated with dubious purposes and masked intentions.

In fleshing out the initiative rights provided by the new Constitution, the Legislature sought to prevent what is happening here with CI-30. It provided in Section 13-27-312(4), MCA, that:

“The Statement of Purpose and the Statements of Implication must express the true and impartial explanation of the proposed ballot issue in plain, easily understood language and may not be arguments or written so it could create a prejudice for or against the measure.”

The Statement of Purpose and the Statements of Implication, as they appear petitions, and as they now will appear on the ballot are not true; they are not impartial; they are argumentative, and written so as to create a prejudice for the measure.

Before the Order of the majority of this Court in this case, we have not hesitated to exercise our power to protect the people in ballot issues. In Sawyer Stores, Inc. v. Mitchell, et al. (1936), 103 Mont. 148, 62 P.2d 342, this Court set out language which is applicable today to statements of implication:

“ ‘Description’ in these circumstances signifies a fair portrayal of the chief features of the proposed law in words of plain meaning so that it could be understood by the persons entitled to vote. It must be plain enough to convey an intangible idea of the scope and import of the proposed law. It ought not to be clouded by undue detail, nor yet so abbreviated as not to be readily comprehensible. It ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy; it must contain no partisan coloring. It must in every particular be fair to the voter to the end that intelligent enlightened judgment may be exercised by the ordinary person in deciding how to mark the ballot.”

If this Court applied the rule of Sawyer to the Statement of Purpose and the Statements of Implication in this case, they could not stand.

In Sawyer, we pinpointed the dilemma of the uninformed voter facing such a ballot issue:

“The majority of qualified electors are so much interested in managing their own affairs that they have no time to carefully consider measures affecting the general public. A great number of voters undoubtedly have a superficial knowledge of proposed laws to be voted upon, which is derived from newspaper comments or from conversations with their associates. We think the assertion may be safely ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law, initiated by petition, who have attentively studied its contents and know how it will probably effect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage.”

If the foregoing quotation be true (as we think it is) all the more reasons exist for a compliance with the provisions of our statutes in relation to the descriptive manner which is required to be placed on the ballot by which a proposed measure is submitted.

It was the evident thought of the Legislature, in enacting Section 13-27-202, MCA, requiring the submission of a sample of the proposed measure and of Statements of Purpose and Statements of Implication to the Legislative Council, the Secretary of State, and the Attorney General before petitions are circulated, that such officials would protect the people from misleading and deceitful submissions by initiative. In defense of the public officials in this case, it should be recognized that the presentation of a simple petition by the proponents is made ex parte, and, as we noted in Sawyer, it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who attentively study its contents and know how it probably will affect their interests. Whatever the cause, and however they slipped through, the statements here do not measure up to the requirements of truth and impartiality in Section 13-27-312(4),MCA.

Faced with the same situation in Sawyer, supra, this Court had no patience with the contention that laches prevented action to remove the ballot from the election. This Court said:

“Defendants contend that plaintiff is estopped to process this action by reason of laches. For present purposes, we will consider as true each of the allegations of defendants’ answer in relation to this phase of the matter. Conceding that plaintiff did not act herein as expeditiously as it might have done, yet we are of the opinion that the action should not be dismissed because of such failure on the part of the plaintiff. If this proceeding affected merely the private rights of the plaintiff, then doubtless the plea of laches would be good. This Court has jurisdiction, as noted above, because of the public interest which attaches here. We are of the opinion that the liberties of the people of this State should not be jeopardized merely because the plaintiff has not acted with the greatest decree of celerity; and therefore such plea is not sustained.”

103 Mont. 191, 72 P.2d 357.

THE INITIATIVE IS IMPERMISSIBLY MULTIFARIOUS

Article XIV, Section 11, 1972 Montana Constitution provides that “if more than one amendment [to the Constitution] is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.” The section applies to ballot measures proposed by the electorate through the initiative process as well as through those proposed by legislative enactment. State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d 761.

CI-30 combines six disparate amendments to the Constitution. In addition, the amendatory effects of CI-30 are not contained in either the Statement of Purpose or the Statements of Implication.

1. By deleting the word “every” in the first sentence of Article II, Section 16, CI-30 removes the constitutional protection for a speedy trial and right of redress from any injury to person, property or character.

2. By removing the words “this full” from Section 16(2), the Initiative removes from constitutional protection the right of persons to a complete remedy in the courts for the redress of wrongs.

3. By removing the words “every,” and the words “this full” from Section 16, the Initiative removes rights and remedies, under equal protection standards, from strict scrutiny by the courts.

4. By removing the words “every” and “this full” from Section 16, the Initiative, in Section 16(3), eliminates the power of any state court from construing Section 16 in a manner which would limit the power of the Legislature from adopting any mode or right of remedy it might seek to provide.

5. Section 16(3), under the Initiative vests in the legislative branch the sole authority as to the extent of individual rights and remedies, excluding the right of access to the courts.

6. CI-30 adds to existing Article II, Section 16, of the Constitution a limitation on the authority of the Legislature to place dollar limits on compensatory damages by requiring the approval of such enactments by a two-thirds vote of each house of the Legislature.

The multifariousness of the Initiative is easy to demonstrate. A voter might wish to preserve the right of access to the courts for every wrong, but to authorize the Legislature to limit the remedies so as not to give “full” redress; or the voter might agree to remove the words “every and “full” from Section 16, but to preserve the rights of the courts to examine the validity of legislative adoptions under Section 16. A voter might favor a two-thirds vote of each house of the Legislature for limits on compensatory damages, but not the removal of the right of speedy access for every injury, or for full redress.

By combining all these subjects in a single initiative, the will of the voter is defeated. We condemned such proposals in Sawyer Stores, Inc. v. Mitchell (1936), 103 Mont. 148, 62 P.2d 342 stating:

“. . . a submission is void where two propositions have been submitted so as to have one expression of the voter answer both propositions, and this for the reason that voters might thereby be induced to vote for both propositions who would not have done so if the question had been submitted singly. As the voter in this instance might have been against the adoption of the initiated bill, but desirous of locating the capital in event the bill carried, the question should have been separately submitted to him that he might so express his will. This was the effect of the holding the court in Lozier v. Alexander Drug Company, [23 Okl. 1, 99 P. 808,] supra, where the Court said: No opportunity was given the elector separately to express his will by his vote upon the question of the adoption or rejection of said provision as proposed ...”

103 Mont. 173, 62 P.2d 354.

THE TRUE PURPOSE OF THE INITIATIVE

In White v. State of Montana (Mont. 1983), [203 Mont. 363,] 661 P.2d 1272, 40 St.Rep. 507, 509, 510, this Court held that the language of present Article II, Section 16 guarantees everyone “a fundamental right” to bring a civil action in a court of law.

In Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 42 St.Rep. 1957, 1966, we held that the words “full legal redress” in Article II, Section 16, protected as a “fundamental right, the right of persons to be fully compensated for every injury.” This holding necessitated the application of the “strict scrutiny” test when legislative enactments are examined in the light of equal protection standards.

The purpose of CI-30 is to remove the status of fundamental right in actions for every injury of person, property or character, and the equally fundamental right to full redress for such injury. The further objective of the Initiative is to remove any such enactments of the Legislature under the proposed Article II, Section 16, from judicial review.

The true purpose of the Initiative, is as we said, masked from the voter.

In advertising, and in statements to the press, the proponents of CI-30 are advancing its cause under the banner of “tort reform.” A voter might well wish for “tort reform,” and yet not realize that the proposed amendment would authorize the Legislature to abolish, limit or modify every possible right of recovery or remedy without judicial review under the new Section 16. If adopted, CI-30 will apply not only to remedies for tort, but to contract remedies, specific performance, or any other right or remedy that the reader might name.

In exchange for a short term liability insurance crisis, Initiative 30 will substitute a long-term submission to the unbridled will of the Legislature. Any student of the long-time history of the Montana Legislature will recognize the folly of that direction.

THE MAJORITY MAY BE BOXED FROM FURTHER CONSIDERATION OF INITIATIVE 30’S DEFECTS

In another case before this Court concerning a constitutional initiative to be submitted to the voters at the general election of November 4, 1986, State of Montana ex rel. Montana School Board Association, et al. v. Jim Waltermire and Friends of the Constitution, Inc., (1986) [224 Mont. 296,] 729 P.2d 1297, [43 St.Rep. 2198], decided October 7, 1986 [43 St. Rep. 2198], two of the Justices here dissenting authorized the submission of CI-27 to the voters although they recognized possible constitutional defects in the Initiative. District Judge Gary did not participate in that decision.

CI-27 presented a different aspect from that presented by CI-30. CI-27 provided that its effective date would be July 1, 1987. Thus there is time, if that Initiative passes, for action to be taken to remedy the defects if such defects do exist. In this case, however, involving CI-30, Section 2 of the Initiative provides that the effective date shall be immediately on the approval of the electorate. Thus if the voters approve, CI-30 will take effect on November 4, 1986, and be effective from that date.

By voting to allow CI-30 to go to the voters, the majority in this case may have effectively prevented themselves from further consideration of the constitutional issues therein involved. If the provisions of CI-30 become a part of the Constitution, how can it later be said that they are unconstitutional?

As we indicated earlier in this Dissent, the question of the sufficiency of the petitions on which constitutional CI-30 is based is still open to question. If that be the reason that the majority permitted CI-30 to go to the voters, with the thought that such sufficiency could be later questioned, well and good. Such purpose, however, was not expressed to the dissenters before the entry of the majority Order.

By making CI-30 effective immediately upon its approval by the electorate, a serious roadblock exists to any further examination of the provisions of CI-30 if it is successful, and its constitutionality is questioned. In the opinion of the dissenters, the delay of the relators (it was a minimal delay) in getting the issues to this Court is not a sufficient reason for this Court not to exercise its right and prerogative, and indeed, its duty, to protect the electors of this State from false and misleading manipulations of the initiative process.

We affirm our Dissent to the majority Order in this cause of October 7, 1986.

MR. JUSTICE HUNT and HONORABLE JOSEPH B. GARY, District Judge, sitting for MR. JUSTICE MORRISON concur.


source: Caselaw Access Project

author: MR. JUSTICE WEBER MR. JUSTICES SHEEHY, HUNT and MORRISON,

license: Public Domain

text:
    STATE OF MONTANA ex rel., MONTANA SCHOOL BOARDS ASSOCIATION, Montana Association of Counties, Montana League of Cities and Towns, Musselshell County, Custer County, Chouteau County, Yellowstone County, Butte-Silver Bow Local Government, Charles L. Evans and Michael S. Becker, Plaintiffs and Relators, v. JIM WALTERMIRE, Secretary of State of the State of Montana, Defendant and Respondent, and Friends of the Constitution, Inc., Real Party in Interest.
    No. 86-411.
    Submitted Oct. 7, 1985.
    Decided Dec. 11, 1986.
    729 P.2d 1297.

      Charles E. Erdmann argued, Helena, for plaintiffs and relators.
    Mike Greely, Atty. Gen., H. Elwood English argued, Helena, for Secretary of State, defendant and respondent.
    Carter Picotte argued, Helena, for Friends of the Constitution, real party in interest.
    David Gliko, City Atty., Great Falls, Roger Tippy, Helena, for Montana Legal Defense Fund, amicus curiae.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In an application to this Court for a writ of injunction and declaratory judgment, plaintiffs and relators challenged the constitutionality of Constitutional Initiative 27, the “property tax initiative.” On October 7, 1986, this Court issued an order denying the requested relief (copy of order attached to this opinion). This opinion sets forth the Court’s reasoning.

The issues are:

1. Is the Initiative invalid on its face as a violation of the Contract Clause of the U.S. Constitution?

2. Does the Initiative present more than one amendment in a single ballot measure in violation of Mont. Const. Art. XIV, Section 11?

3. Does the Initiative present irreconcilable conflicts with Mont. Const. Art. VIII, Section 2, and Mont. Const. Art. Ill, Section 7?

Constitutional Initiative 27 was certified to the Governor as officially filed on June 27, 1986. The Initiative would amend Montana’s Constitution by adding a new section to Article VIII as follows:

“Section 15. Certain taxes prohibited — certain tax changes only by referendum or initiative. No tax shall be imposed on any real or personal property. The establishment of a sales tax, or the increase of sales tax or personal income tax shall be accomplished only by referendum of the legislature with the approval of a majority of the qualified electors or initiative of the people.”

It would also repeal several sections of the Montana Constitution: Art. VIII, Sections 3, 4, and 5, and Art. XII, Section 1(2).

On September 3, 1986, plaintiffs and relators filed an application for an original proceeding in this Court pursuant to Rule 17 of the Montana Rules of Appellate Civil Procedure, asking that CI-27 be declared unconstitutional on its face under the Uniform Declaratory Judgment Act. They requested that the Secretary of State be enjoined from presenting CI-27 to the voters. They filed a brief in support of their application.

This Court ordered that all named parties submit briefs, reserving decision on whether it would accept jurisdiction of plaintiffs’ application. After all briefs were filed, oral arguments were heard. This Court then issued its order denying the application for a writ of injunction and declaratory judgment.

I

Is the Initiative invalid on its face as a violation of the Contract Clause of the U.S. Constitution?

Article I, Section 10 of the United States Constitution provides that no state shall pass a law impairing the obligation of contracts. Plaintiffs contend that the Initiative would impair bond contracts already issued by Montana cities, counties, and school districts by repealing the statutes which provide for the method of repayment of bonds. The defendants counter that there is no impaired contract now before this Court and that other sources could be arranged for repayment of the bonds prior to the July 1987 effective date of the Initiative.

The peoples’ right to alter or abolish our state constitution and form of government whenever they deem it necessary was present in our 1889 Constitution and remains substantially unchanged today at Mont. Const. Art. II, Section 2. Under the 1889 Constitution, the people had the right to make statutory changes by initiative. In opinions decided under that provision, this Court accepted jurisdiction over pre-election initiative challenges only where the challenged initiative was not properly submitted under the election laws, e.g., State ex rel. Livingston v. Murray (1960), 137 Mont. 557, 354 P.2d 552, and where the challenged initiative was unconstitutional on its face, e.g., State ex rel. Steen v. Murray (1964), 144 Mont. 61, 394 P.2d 761. The right of the people to make statutory changes by initiative is retained in Art. Ill, Section 4 of our 1972 Constitution. The people also have the right under Art. XIV, Section 9 of our 1972 Constitution to make constitutional changes by initiative:

“Amendment by initiative. (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 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.”

This right of the people to amend the Constitution by initiative is a unique and important retained power. The inclusion of this right in the 1972 Constitution emphasizes the degree of control the people desired to retain over the changes in their Constitution. We conclude that it is not the function of this Court to intervene in the initiative process prior to the peoples’ vote absent extraordinary cause, and that our discretionary jurisdiction under Rule 17, M.R.App.Civ.P., should not be exercised unless it is absolutely essential.

The impairment of contract challenge does not suggest that the Initiative is unconstitutional on its face as was the initiative in Steen. In substance, it is a contention that the Initiative would be unconstitutional as applied to bonds and other obligations already issued by cities, towns, school districts, and other parts of state government. The record before us does not contain any bonds or other obligations which are alleged to have been unconstitutionally affected. If the Initiative were adopted by the people, there would be an adequate opportunity to present this issue in the court system and determine if the impairment of contract challenge in fact does apply to obligations in existence. We do not find the type of compelling requirement necessary to move our discretion in this manner. We therefore declined to accept jurisdiction of this issue prior to the election.

II

Does the Initiative present more than one amendment in a single ballot measure in violation of Mont. Const. Art. XIV, Section 11?

Plaintiffs and relators say that the Initiative addresses several distinct subjects, including property taxes, sales taxes, and S.I.D.’s. They argue that this violates Mont. Const. Art. XIV, Section: “If more than one amendment is submitted at the same election, each shall be so prepared and distinguished that it can be voted upon separately.”

As we stated under Issue I, this Court has exercised pre-election jurisdiction to remove an initiative from the ballot only when there was a procedural defect or when the initiative was clearly unconstitutional on its face. The Steen case involved the latter reason. There, the text of the proposed initiative clearly and directly contradicted a constitutional provision prohibiting the legislature from authorizing gambling. In the present case, in contrast, there are strong arguments on both sides of the issue of whether the Initiative violates the constitutional requirement that initiatives must address only one subject. Such a close issue deserves the considered judgment of this Court and is inappropriate for the hurried consideration requested in the present pre-election determination of constitutionality. We concluded that to pull this Initiative off the ballot while we considered this aspect more carefully would be an unjustified infringement on the people’s right of initiative. Additionally, this issue could have been addressed following the election, had the Initiative been adopted. See, e.g., State ex rel. Corry v. Cooney et al. (1924), 70 Mont. 355, 225 P. 1007; State ex rel. Hay v. Alderson (1914), 49 Mont. 387, 142 P. 210; State v. Board of Com’rs. (1906), 34 Mont. 426, 87 P. 450. We therefore declined to exercise our discretionary jurisdiction over this issue prior to the election.

Ill

Does the Initiative present irreconcilable conflicts with Mont. Const. Art. VIII, Section 2, and Mont. Const. Art. Ill, Section 7?

Plaintiffs and relators maintain that the portion of the Initiative which prohibits property taxes conflicts with Mont. Const. Art. VIII, Section 2, which states “[t]he power to tax shall never be surrendered, suspended, or contracted away.” They also argue that allowing sales or personal income taxes to be established or increased only after approval by a majority of the qualified electors would require a supermajority for passage of such measures, because Mont. Const. Art. Ill, Section 7, defines the number of qualified electors as the number of voters in the previous gubernatorial election. Plaintiffs assert that if the Initiative passed, a majority of the number of voters in the previous gubernatorial election would have to approve proposed sales or personal income taxes. Plaintiffs state that this would conflict with Mont. Const. Art. II, Section 2, which they say implies that a majority of the voters will prevail.

Plaintiffs contended that this Court should strike the Initiative from the November ballot because of these conflicts. We declined to do so. No constitutional conflict would exist until and unless the Initiative was enacted into law by popular vote in November. Even then, the time period until July 1, 1987, would remain in which to raise objections to the Initiative before it took effect as law. At that time, any unconstitutional portions of the Initiative could be severed. These factors, along with our firm conviction of the value and importance of the right of initiative which is retained by the people of Montana, led us to conclude that the interests of our state would best be served, and the role of this Court best fulfilled, if the Court did not intervene prior to the election.

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

APPENDIX

Plaintiffs and Relators have filed an original proceeding in this Court for Writ of Injunction and Declaratory Judgment, in which they challenge the constitutionality of Constitutional Initiative 27, which in part is entitled as an initiative to amend the Montana Constitution to abolish taxes on real and personal property. Briefs, motions, and other materials have been filed by Plaintiffs and Relators, Defendants and Respondents, and Real Party in Interest. Oral argument was held before the Court on this date. The Court has concluded it is advisable to immediately issue its Order to inform all parties of the result.

IT IS ORDERED:

(1) That the Application for Writ of Injunction and Declaratory Judgment is denied in its entirety, without prejudice to consideration of the issues in other proceedings.

(2) That an opinion of this Court will be issued at a later date setting forth the basis for this Order.

DATED this 7th day of October, 1986.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Frank B. Morrison, Jr., Justice

s/Fred J. Weber, Justice

s/L.C. Gulbrandson, Justice

MR. JUSTICES SHEEHY, HUNT and MORRISON,

specially concurring:

We have voted today, with reservations, that this Court should allow CI-27 to remain on the statewide ballot in the general election of 1986.

Our reservations are that: (1) CI-27 does indeed violate the Contract Clause of the United States Constitution (Art. I, Section 10) and of the 1972 Montana Constitution (Art. II, Section 31); (2) does create an unreconcilable conflict with Art. VIII, Section 2 and with Art. Ill, Section 7, of the 1972 Montana Constitution; and, (3) is duplicitous and even triplicitous in the number of subjects submitted in one initiative.

Why would we allow it at all in the face of such substantive defects? First, because time remains after the general election and before the effective date if CI-27 passes, for the legislature and this Court to take curative actions. For example, this Court could hold the initiative unconstitutional as to contracts impaired; or we could hold that special assessments are not a form of taxation at all, but charges levied for benefits bestowed. Likewise, we can still decide, if CI-27 passes, the irreconcilable issues before the effective date. The legislature itself may adopt a plan acceptable to the voters by referendum before the effective date.

Our second reason is not legal but practical. CI-27 is not so much a fatal disease as it is a symptom that something is ailing in the Montana body politic. While the economy has stagnated or receded in most areas of Montana, the ever-galling property tax load has increased out of proportion to the local economies. There would be no gain here to record the reasons, most of which lie directly at the legislature’s door, some of which accrue from the bloated administrations of school districts, counties and towns, and one of which is the curtailment of the federal largesse. Not the least pain in our political body is the miserable mismanagement by the state of the 5-year revaluation program, which has brought thousands of property owners to their courthouse doors demanding relief.

The 55,000 signers of petition for CI-27, and their ranks of supporters, are saying out loud that property taxes in Montana have become regressive. Since all taxes, regardless of their names, are paid out of our incomes, a growth in taxation which is not accompanied by a growth in our incomes necessarily becomes strangular. Some Montanans feel a hand at their throats. They see CI-27 as a means to escape the strangle-hold. They are as entitled to express their outrage at the ballot box against taxation as against candidates. Whether they are right can be decided later, if CI-27 passes.

We therefore concur.


author: MR. JUSTICE WEBER

text:
    In the MATTER OF THE ESTATE OF DOROTHY FARNUM, Deceased.
    Nos. 86-68, 86-78.
    Submitted on Briefs Oct. 2, 1986.
    Decided Dec. 12, 1986.
    730 P.2d 391.

      Boschert & Boschert, Ernest F. Boschert, Billings, for appellant.
    Terry Trieweiler, Whitefish, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

These cases arise from the death of 12-year-old Dorothy Farnum (Dorothy) in an automobile/bicycle collision. The District Court for Flathead County, acting as a probate court, appointed Alice Farnum, Dorothy’s mother, as personal representative. It also authorized her to prosecute any wrongful death action and approved her settlement of wrongful death and survival claims for $100,000. In a separate action, the same court approved allocation of the proceeds of the wrongful death claim between Dorothy’s mother and father. We affirm.

We restate the issues as follows:

1. Did the Probate Court in the Eleventh Judicial District err in finding that Alice Farnum was a proper person to be personal representative of the estate of Dorothy Farnum?

2. Did the Probate Court in the Eleventh Judicial District have jurisdiction to approve a settlement covering both the survival and the wrongful death causes of action, even though the father’s wrongful death action was then pending in the Thirteenth Judicial District?

3. Did the Probate Court in the Eleventh Judicial District err in authorizing Alice Farnum to settle both the survival and wrongful death causes of action and in approving the allocation of the proceeds of the settlement between the two actions?

4. Did the Probate Court in the Eleventh Judicial District err by denying the father’s motion for a new hearing or to amend the probate order?

5. Did the Eleventh Judicial District Court err in denying the father’s motion to strike and dismiss the petition for allocation of the wrongful death proceeds?

Dorothy Farnum was 12 years old when she was killed in an automobile/bicycle collision in July 1983. Alice Farnum, Dorothy’s mother and her custodial parent, was informally appointed as personal representative (P.R.) of Dorothy’s estate in August 1983. Alice Farnum retained an attorney who began pursuing wrongful death and survival claims against the driver of the car which hit Dorothy. They filed a survival action in federal district court. In August 1985, Dorothy’s father, Vernon Farnum, filed a demand for notice of all actions taken with regard to the estate. A week later, Alice Farnum petitioned the Probate Court for authority to enter into a compromise settlement of claims against the driver of the car involved in the collision, noticing Vernon Farnum with a copy of the petition. Vernon Farnum filed his objection to the petition, stating that he had commenced his own wrongful death action.

A hearing was held on Alice Farnum’s petition in October 1985. She appeared with her attorney. Vernon Farnum did not appear, but was represented by his attorney. Testimony was presented by Alice Farnum and her attorney, and by Kenneth Farnum, Dorothy’s older brother. Alice and Kenneth Farnum testified that Dorothy’s parents were divorced when she was 3 years old and that Dorothy was very close to her mother but that she’d had virtually no contact with her father. Alice Farnum’s attorney testified that the $100,000 settlement amount was the insurance limit of the driver of the car, and that a reasonable allocation of the amount, in light of the circumstances, would be $5,000 to the survival action and $95,000 to the wrongful death action. He also testified that Vernon Farnum had not been consulted during settlement discussions because he had expressed a lack of interest to various family members. His consent to the settlement agreement was sought because it was technically required, and that was when Vernon Farnum filed his demand for notice. Vernon Farnum’s attorney called no witnesses at the hearing, but offered into evidence a copy of his wrongful death complaint filed in the District Court for Yellowstone County.

In November 1985, the Probate Court entered its findings, conclusions, and order formally appointing Alice Farnum as P.R. of the estate. It also authorized Alice Farnum to prosecute any wrongful death action which arose as a result of Dorothy’s death, approved settlement of the wrongful death and survivor actions for $100,000, and approved allocation of $5,000 of that amount to the survival action brought on behalf of the estate. The court stated that the allocation of proceeds from the wrongful death action between the competing claims of Alice Farnum and Vernon Farnum would have to be dealt with in a separate proceeding.

Vernon Farnum moved for a new hearing on the basis of newly discovered evidence. In support he filed affidavits by himself and his former attorney. The affidavits stated that Mr. Farnum was unable to attend the hearing because he had just started a new job over 1,000 miles away, and that he had been a good dad to Dorothy. The court denied his motion. He appeals.

Four days after the entry of the probate order, Alice Farnum filed a petition entitled “In the Matter of Dorothy Farnum, Deceased.” She sent notice of this petition to Vernon Farnum through his attorney. In this action, she petitioned the court to allocate the wrongful death proceeds. Vernon Farnum moved to strike and dismiss the petition because he had not personally been served with process, there was no document entitled “complaint” filed in the action, and the court had no subject matter jurisdiction. That motion was denied. Taking judicial notice of the hearing and evidence in the probate matter, the court ordered that all $95,000 of the proceeds be allocated to Alice Farnum and none of the proceeds be allocated to Vernon Farnum. Vernon Farnum appeals that order.

On appeal, Alice Farnum filed a motion with this Court requesting that the statements of fact in Vernon Farnum’s briefs be stricken, because they are not based upon the record but primarily upon the affidavits filed by Vernon Farnum and his attorney after the October 1985 hearing. We do not find it necessary to strike the statements of fact. The matters set forth in the affidavits submitted by Vernon Farnum will be considered only for purposes of reviewing the denial of the motion for a new hearing, where the affidavits were properly before the court.

I

Did the Probate Court in the Eleventh Judicial District err in finding that Alice Farnum was a proper person to be personal representative of the estate of Dorothy Farnum?

The father argues that since he and the mother did not agree on who should be P.R., the court should have appointed another qualified person. He says that Alice Farnum did not act properly as P.R. because she failed to hold the wrongful death proceeds in trust for all heirs, violating her fiduciary duty. He maintains her appointment as P.R. should have been terminated.

The Probate Court found that Alice Farnum and Vernon Farnum, as Dorothy’s heirs, shared priority for appointment as P.R. under Section 72-3-502(5), MCA. Based on the evidence presented, it found Vernon Farnum unsuitable for appointment as P.R., and concluded that this left Alice Farnum as the only suitable person with priority for appointment. The witnesses at the hearing testified that Dorothy was very close to her mother but had virtually no relationship with her father, and that her father had not shown an interest in helping pay for Dorothy’s support while she was alive or for her final medical and funeral expenses. We conclude that substantial credible evidence supports the finding that Vernon Farnum was unsuitable for appointment as P.R. of Dorothy’s estate. We hold that the Probate Court was correct in finding that Alice Farnum had priority for appointment as P.R. and that she was a proper person to be P.R. of the estate. We further hold that there is nothing in the record to support termination of Alice Farnum’s appointment as P.R.

II

Did the Probate Court in the Eleventh Judicial District have jurisdiction to approve a settlement covering both the survival and the wrongful death causes of action, even though the father's wrongful death action was then pending in the Thirteenth Judicial District?

Vernon Farnum says that the Probate Court acted in excess of its jurisdiction, under this Court’s opinion in Matter of Estate of Pegg (Mont. 1984), [209 Mont. 71,] 680 P.2d 316, 41 St.Rep. 558. In that case, this Court held that a district court acting in probate exceeded its jurisdiction when it assumed authority over a settlement offer, approved it, and then ordered dismissal of the personal representative’s wrongful death action filed in another judicial district.

Alice Farnum had been informally appointed as P.R. of Dorothy’s estate in August 1983, before she filed her survival action against the driver of the car. Vernon Farnum was never appointed P.R. of the estate. Our opinion in Pegg does not control on this issue, because in Pegg the P.R. had filed her action in another district than the one in which the court assumed jurisdiction over the settlement offer.

In the present case, the Probate Court of the Eleventh Judicial District was the only court which could approve a settlement in the survival action, since it had jurisdiction over the estate. The wrongful death settlement was inextricably linked to the survival settlement. We conclude that the Probate Court acted within its jurisdiction.

Ill

Did the Probate Court in the Eleventh Judicial District err in authorizing Alice Farnum to settle both the survival and wrongful death causes of action and in approving the allocation of the proceeds of the settlement between the two actions?

Any cause of action for Dorothy’s wrongful death must be brought pursuant to Section 27-1-512, MCA, which provides:

“Either parent may maintain an action for the injury or death of a minor child and a guardian for injury or death of a ward when such injury or death is caused by the wrongful act or neglect of another

This section parallels the statute for injury or wrongful death of an adult, found at Section 27-1-513, MCA. Under that statute this Court has held that there can be but one action for wrongful death, and that action must be brought by the personal representative. State ex rel. Carroll v. District Court (1961), 139 Mont. 367, 370, 364 P.2d 739, 741. The one-action rule is intended to avoid a multiplicity of lawsuits and all the confusion that would ensue therefrom. Alice Farnum argues that these reasons are equally applicable to wrongful death suits involving a minor, and that permitting only one action by the P.R. is the fairest approach.

We tend to agree with the above policy arguments, but the language of Section 27-1-512, MCA, does not support the conclusion that the P.R. must bring any action for the wrongful death of a child. However, Alice Farnum was properly appointed as P.R. shortly after Dorothy’s death. Vernon Farnum apparently brought his wrongful death action only after being asked to approve the $100,000 settlement negotiated by Alice Farnum’s attorney. That settlement involved not only the wrongful death claim, but also the survivorship claim, which only the P.R. could settle. The court heard testimony from Alice Farnum’s attorney on an appropriate division of the proceeds between the two causes of action. Vernon Farnum neither offered evidence on this issue nor objected to the manner in which the proceeds were allocated between the two causes of action. We affirm the Probate Court’s authorization to Alice Farnum to settle both actions and its allocation of the proceeds between the two actions.

IV

Did the Probate Court in the Eleventh Judicial District err by denying the father’s motion for a new hearing or to amend the probate order?

The Probate Court did not distribute the wrongful death proceeds. Instead, it very carefully ruled that it had no jurisdiction there. It held separate proceedings in its capacity as a district court to rule on the distribution of the wrongful death proceeds. The District Court for Flathead County was the proper court to approve of the wrongful death settlement, because Flathead County was the county of Dorothy’s residence and the county in which she died.

The motion for a new hearing was based upon a claim of newly discovered evidence. The affidavits submitted with the motion allege facts about Vernon Farnum’s relationship with Dorothy in the years preceding her death and say that he failed to appear at the hearing because he had just begun a new job. No reason was given for Mr. Farnum’s failure to submit these affidavits earlier. We conclude that the affidavits do not present any newly discovered evidence, and that the court properly denied the motion for a new hearing or to amend the order.

V

Did the Eleventh Judicial District Court err in denying the father’s motion to strike and dismiss the petition for allocation of the wrongful death proceeds?

Vernon Farnum maintains that the second proceeding, in which the District Court divided the proceeds of the wrongful death settlement, was flawed because he was not personally served with a summons and complaint. He argues the court had no subject matter jurisdiction over the wrongful death action, and the petition was wrongly based on the probate order, on which the time for appeal had not yet expired.

A proceeding to allocate the proceeds of a wrongful death suit involves the disposition of property, title to which has not been established. In Montana, the right to bring a wrongful death action for the death of a minor child in vested in either parent under Section 27-1-512, MCA. The district courts’ jurisdiction over such actions is sufficiently broad to allow them to allocate the proceeds of such an action. Pegg, 680 P.2d at 323. Here, Alice Farnum invoked that jurisdiction by her petition to allocate the wrongful death settlement. Following the practice used in Montana for many years, the petition was filed in lieu of the formality of filing a complaint and summons against the driver of the automobile. The latter procedure was unnecessary since a settlement agreement had already been reached. Notice of the petition was served upon Vernon Farnum’s attorney prior to the hearing. We conclude that proper notice of the proceeding was provided to Vernon Farnum.

The father has not shown any reason why consideration of this matter must wait until the time for appeal expired on the probate order. He has not shown that he was prejudiced by the court taking notice of the probate action, and he did not lose his right to appeal either order.

The father further argues that both parents should share any award for the wrongful death of a minor child. That is generally true. However, here the evidence before the court demonstrated that only the mother could reasonably be expected to suffer damages including loss of consortium, mental anguish, and loss of future support. We conclude that the District Court’s allocation of the proceeds between the parents is supported by substantial evidence.

We affirm the orders entered by the Eleventh Judicial District Probate and District Courts. In view of our conclusions here, and because there can be but one wrongful death action arising out of Dorothy Farnum’s death, we order that the wrongful death action denominated cause No. 85-1984 in the Thirteenth Judicial District of Yellowstone County, be dismissed with prejudice. It should be noted that there is enough uncertainty in the statutes regarding the wrongful death of minors that the legislature should clarify the procedures with regard to surviving parents who are separated and with regard to whether such an action should be brought by a personal representative, as in Section 27-1-513, MCA.

MR. JUSTICES HARRISON, MORRISON, GULBRANDSON and HUNT concur.


author: MR. JUSTICE MORRISON MR. JUSTICE GULBRANDSON,

text:
    WILLIAM STELLING, JR., Claimant and Appellant, v. RIVERCREST RANCHES, INC., Employer, and State Compensation Insurance Fund, Defendant and Respondent and Cross-Appellant.
    No. 85-370.
    Submitted July 24, 1986.
    Decided Dec. 12, 1986.
    730 P.2d 388.
    Lloyd E. Hartford argued, Billings, for claimant and appellant.

      Hughes, Alke, Kellner & Sullivan, Mike McCarter argued, Helena, for defendant and respondent and cross-appellant.
    Milodragovich, Dale & Dye, Lon J. Dale argued, Missoula, for amicus curiae Gary Larson.
    Rossbach & Whiston, John Whiston argued, Missoula, for amicus curiae Rubye Kauffman.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Claimant, William Stelling, Jr., appeals the June 27, 1985, judgment of the Workers’ Compensation Court which awarded him only a small portion of the lump-sum advance he had requested. We affirm the lump-sum advance and dismiss the remainder of Stelling’s appeal for lack of standing.

Stelling was injured January 5,1981, in the scope and course of his employment with Rivercrest Ranches, Inc. He continued to work through June 8, 1981, entered the hospital June 10, 1981, and underwent back surgery June 15, 1981. A second operation was performed November 1, 1982.

The State Compensation Insurance Fund commenced paying Stelling workers’ compensation benefits June 9, 1981. It also paid all of his related medical expenses. Thereafter, the Fund requested permission to relieve itself of liability by purchasing an annuity to provide Stelling with the expected benefits to which he would be entitled.

On December 6, 1984, Stelling filed a petition for hearing with the Workers’ Compensation Court, asking that the Fund’s request be denied and that he be awarded a substantial lump-sum advance. A pre-trial conference was held February 15, 1985. The hearing was held March 20, 1985, After the taking of a post-trial deposition and the filing of briefs by all parties, the matter was submitted to the Workers’ Compensation Judge on May 31, 1985.

Meanwhile, on April 15, 1985, the Montana Legislature enacted Senate Bill 281 in response to this Court’s decision in Willis v. Long Construction Co. (Mont. 1984), [213 Mont. 203,] 690 P.2d 434, 41 St.Rep. 2050. Willis forbid discounting to present value lump-sum awards to workers’ compensation claimants. The bill amended Section 39-71-741, MCA, by (1) creating new criteria for establishing the need for a lump-sum award; and (2) requiring that lump-sum payments of permanent total disability benefits be discounted at 7% for each year of the estimated compensation period.

Thereafter, with the permission of the Workers’ Compensation Judge, Stelling amended his pre-trial order to include Contract Clause, due process and equal protection challenges to the application of S.B. 281 to his case.

Findings of fact, conclusions of law and a judgment were entered June 27, 1985, finding claimant to be permanently totally disabled and entitled to $219 in weekly benefits and a partial lump-sum payment sufficient to satisfy the balance due on his 1984 pickup truck. The judge denied claimant’s request for a lump-sum award sufficient to purchase an annuity paying $1297 a month for twenty years and to purchase a $65,000 house and $12,000 in furnishings. The Workers’ Compensation Judge also held constitutional retroactive application of that portion of S.B. 281 establishing procedures for proving entitlement to a lump-sum payment. However, he found retroactive application of the discounting provision to be unconstitutional.

Stelling challenges the constitutionality of S.B. 281 again on appeal and raises the following issues:

1. Whether the application of Section 39-71-741, MCA, as amended by Ch. 471, Laws of Montana (1981), in the determination of workers’ compensation benefits to be awarded to workers injured before April 15, 1985, (the effective date of the amendment):

A. violates the Contract Clauses found in Article 1, Section 10 of the United States Constitution and Article II, Section 31 of the 1972 Montana Constitution?

B. denies due process guaranteed by the Fourteenth Amendment to the United States Constitution and by Article II, Section 17 of the 1972 Montana Constitution?

C. denies equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and by Article II, Section 4 of the 1972 Montana Constitution?

2. Whether, under the test in effect at the time of his injuries — best interests of the claimant — Stelling is entitled to the conversion of his biweekly benefits to a lump-sum payment?

The State Fund cross-appeals, raising the following issue:

1. Whether the Workers’ Compensation Judge erred in refusing to retroactively apply that portion of S.B. 281 requiring that lump-sum payments to permanently totally disabled claimants be discounted to present value?

The issue raised on cross-appeal is addressed in another case Buckman v. Montana Deaconess Hospital, [1986, 224 Mont. 318,] 730 P.2d 380, [43 St.Rep. 2216], the case with which this case was consolidated for oral argument.

In Buckman, supra, we held that the procedures of S.B. 281 merely expand the methods by which a claimant proves entitlement to a lump-sum award. The threshold test remains that of the best interests of the claimant. Here, the Workers’ Compensation Judge held that Stelling failed to prove that a lump-sum award would be in his best interests.

“. . . Claimant has requested a sum to purchase an annuity which will pay him a sum certain for the rest of his life. An annuity purchase does not rise to the standard of best interests . . .
“. . . Under case law precedent claimant is equally unsuccessful in demonstrating that it is in his best interests that he be awarded a sum sufficient to purchase a home . . . Claimant has established that his current housing situation, in the back of his pickup, is intolerable. This alone does not establish that the cash purchase of a home is in his best interests. Claimant offered no evidence establishing an inability to live on his biweekly benefits in the rental market in Missoula. The file is equally bereft of other financing options for claimant’s proposed home purchase other than cash. Claimant has not demonstrated that the cash purchase of a home with new furnishings is in his best interests.
“Claimant has established that his monthly truck payment is a significant drain on his budget. Claimant k awarded a lump sum sufficient to pay off the balance due on his 1984 pickup. This will decrease his monthly expenses and allow him to obtain decent housing.”

Judgment, p. 27.

Because the trial judge failed to find that Stelling’s best interests would be met by conversion of his biweekly benefits to a lump-sum payment, Stelling lacks standing to contest the constitutionality of S.B. 281 and Section 39-71-741, MCA.

“Standing of parties to bring their claims is a threshold question a court must face before reaching the substantive issues of a case. Traditionally, courts require that a plaintiff have a ‘personal stake’ in the outcome of a case, ‘to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Stoianoff v. State of Montana (9th Cir. 1983), 695 F.2d 1214, 1223. If Stelling is not entitled to a lump-sum at all, then he cannot challenge the constitutionality of the methodology of computation.

There is substantial credible evidence to support the trial judge’s determination that the purchase of a home is not sufficient basis for awarding a lump-sum to this claimant. As noted in the trial judge’s opinion, once Stelling is no longer making truck payments, he will have more money with which to provide himself housing. In addition, there is no evidence that Stelling is unable to live within Missoula’s rental market.

The lower court judgment is affirmed.

MR. JUSTICES HARRISON, WEBER, SHEEHY and HUNT concur.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent to that portion of the majority opinion affirming the Workers’ Compensation Court’s determination that retroactive application of the discounting provisions of Section 39-71-741, MCA, is unconstitutional.

I have set forth the basis for this dissent in my dissent filed in Buckman v. Montana Deaconess Hospital and State Compensation Insurance Fund, filed simultaneously with this opinion.

MR. CHIEF JUSTICE TURNAGE concurs in the dissent of MR. JUSTICE GULBRANDSON.