Michael v. PPL Montana, LLC.

2008 MT 177, 185 P.3d 330, 343 Mont. 405, 2008 Mont. LEXIS 256

• Court: Montana Supreme Court
• Decided: May 20, 2008
• Docket: No. OP 07-0132
• Status: Published

Opinions

OPINION AND ORDER

¶1 The U.S. Court of Appeals for the Ninth Circuit filed with this Court on February 15, 2007, a certification order pursuant to M. R. App. P. 44. The issue of law submitted by the Ninth Circuit for decision by this Court concerned whether § 39-71-413, MCA, as amended, comports with five separate provisions of the 1972 Montana Constitution. We accepted the certified question of the Ninth Circuit on March 21, 2007.

¶2 The Ninth Circuit’s request represents far from our first experience with this issue. The Honorable Richard F. Cebull, United States District Judge of the District of Montana, Billings Division, filed with this Court a similar certification order pursuant to M. R. App. P. 44 on November 21, 2002. Judge Cebull’s order concerned the very same case at issue here. We accepted Judge Cebull’s certified question on November 26, 2002. We set a briefing schedule and invited briefs amicus curiae.

¶3 The parties and amicus curiae filed briefs and we heard oral argument on September 23, 2003. Two days later, on September 25, 2003, we determined that we improvidently had accepted the certification: “Simply put, we do not have sufficient facts before us upon which we can render a precedential opinion on the substantial and significant constitutional questions posed.” Brady v. PPL Montana, LLC, 2003 MT 262, ¶ 3, 317 Mont. 425, ¶ 3, 77 P.3d 523, ¶ 3. We were unwilling to interpret these constitutional issues in a vacuum. Brady, ¶ 3.

¶4 We likewise set a briefing schedule and invited briefs to be filed by amicus curiae following our acceptance of the Ninth Circuit’s certified question. The parties and amicus curiae filed briefs and we heard oral argument on this matter on March 5, 2008. We remain constrained, pursuant to the Ninth Circuit’s certification order and our acceptance of that certification order, by the paucity of facts upon which we can render a precedential opinion on the constitutional questions posed. In fact, the Ninth Circuit’s order declares that “the facts in this case are immaterial” to resolving the facial challenge to the constitutionality of § 39-71-413, MCA.

¶5 We remain unwilling to address these constitutional issues in a relative vacuum. We once again reluctantly reach the conclusion that we improvidently accepted the Ninth Circuit’s certified question. We face a similar factual vacuum in which to evaluate the importance of substantial constitutional questions presented similar to the one that we did in Brady.

¶6 We regret the significant time, effort, and money spent on this matter by the parties, amicus curiae, and this Court. We deem it irresponsible, however, to start down the path of addressing constitutional questions of this nature in a relative factual vacuum.

¶7 THEREFORE, IT IS HEREBY ORDERED that this matter is DISMISSED WITHOUT PREJUDICE.

¶8 The Clerk of this Court is instructed to mail a true copy of this Order to all counsel of record and to the Clerk of the U. S. Court of Appeals for the Ninth Circuit.

DATED this 20th day of May 2008.

/S/BRIAN MORRIS /S/JAMES C. NELSON /S/ PATRICIA COTTER /S/ W. WILLIAM LEAPHART