State Ex Rel. Montana School Boards Ass'n v. Waltermire

729 P.2d 1297, 224 Mont. 296, 1986 Mont. LEXIS 1105
CourtMontana Supreme Court
DecidedDecember 11, 1986
Docket86-411
StatusPublished
Cited by20 cases

This text of 729 P.2d 1297 (State Ex Rel. Montana School Boards Ass'n v. Waltermire) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Montana School Boards Ass'n v. Waltermire, 729 P.2d 1297, 224 Mont. 296, 1986 Mont. LEXIS 1105 (Mo. 1986).

Opinions

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?

[298]*298Constitutional 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 [299]*299people 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 govern[300]*300ment. 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.

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State Ex Rel. Montana School Boards Ass'n v. Waltermire
729 P.2d 1297 (Montana Supreme Court, 1986)

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Bluebook (online)
729 P.2d 1297, 224 Mont. 296, 1986 Mont. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-montana-school-boards-assn-v-waltermire-mont-1986.