                           No. 13874
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                              1978


JAMES H. SADLER,
                  Contestant and Appellant,


THOMAS CONNOLLY,

                  Contestee and Respondent.


Appeal from:     District Court of the Fourth Judicial District,
                 Honorable Jack L. Green, Judge presidinq.
Counsel of Record:
         For Appellant:
             Connor and Boggs, Missoula, Montana
             John F. Connor argued and Deirdre Boqgs argued,
              Missoula, Montana
     For Respondent :
             Tipp, Hoven and Skjelset, Missoula, Prlontana
             Raymond P. Tipp argued, Missoula, Montana


                              Submitted:   January 19, 1978

                                Decided:   F k B 1 - 197%
Filed:     f B 1-G?B
Mr. Justice John Conway Harrison delivered the Opinion of
the Court:

        This is an appeal from a judgment of ouster rendered in
an election contest action, removing appellant Thomas Connolly,

from the office of City Councilman for Ward 5, City of Missoufa,
Montana, and awarding the office to respondent, James H. Sadler.
                                      not
     Appellant Connolly a resident but/ then an owner'of real
property in the city of Missoula, filed for the office of City
Councilman, Ward 5, City of Missoula, on January 6, 1977. The
filing consisted of filling out and signing, with acknowledgement
before a notary public, a "Declaration of Nominationttform
prescribed by the city, as required by section 23-3304, R.C.M.
1947. All candidates, including appellant, thereby attested:
           *
    "1 * * [possess] the qualifications prescribed
    by the Constitution and laws of the State of
    Montana for the office herein named * * *."
The second page of the declaration contained questions designed
to elicit information relevant to the candidate's satisfaction

of the residency requirements under section 11-725, R.C.M.    1947.
The information was accurately supplied by appellant. The form,
in its entirety, contained no questions concerning property
ownership.
    Appellant, a Democratic candidate, was opposed in the April
5, 1977, Missoula general election by respondent, the Republican
incumbent. Appellant won the election, receiving 722 votes to
respondent's 569. Appellant assumed the duties of councilman on
May 2, 1977. He has regularly discharged his duties since that
date.
        On A p r i l 21, 1977, respondent i n i t i a t e d t h e i n s t a n t

e l e c t i o n c o n t e s t a c t i o n i n t h e D i s t r i c t Court, Missoula

County, a l l e g i n g a s grounds a p p e l l a n t ' s l a c k of property

ownership, c o n t r a r y t o s e c t i o n s 11-714 and 11-725, R.C.M.

1947, and h i s f i l i n g of a d e c l a r a t i o n of nomination which

t h e complaint described a s " f a l s e " .                The proper form and

t i m e l i n e s s of t h e e l e c t i o n c o n t e s t a c t i o n s i s n o t disputed by

appellant.          Appellant answered and moved f o r judgment on t h e

pleadings, supported by a b r i e f which argued t h e unconstitu-

t i o n a l i t y of t h e "freeholder" requirement under recent

d e c i s i o n s of t h e United S t a t e s Supreme Court, t h e United S t a t e s

D i s t r i c t Court f o r t h e D i s t r i c t of Montana, and various o t h e r

f e d e r a l and s t a t e c o u r t d e c i s i o n s .   Appellant a l s o gave formal

n o t i c e t o t h e k t t o r n e y General of t h e s t a t e of Montana t h a t t h e

c o n s t i t u t i o n a l i t y of s e c t i o n s 11-714 and 11-725 was being

questioned.

        A hearing was held on A p r i l 28, 1977.                       Additional b r i e f s

were subsequently submitted by the p a r t i e s .                       On June 1 7 , 1977,

a judgment of o u s t e r was rendered a g a i n s t a p p e l l a n t , which i n

e f f e c t awarded t h e o f f i c e of Ward 5 Councilman t o respondent.

        I n i t s f i n d i n g s of f a c t and conclusions of law accompanying

t h e judgment, t h e d i s t r i c t c o u r t found a p p e l l a n t u n q u a l i f i e d

f o r t h e o f f i c e due t o h i s l a c k of "freeholder1' s t a t u s .               The

D i s t r i c t Court a d d i t i o n a l l y concluded a p p e l l a n t swore f a l s e l y

t o h i s f i l e d d e c l a r a t i o n of nomination, i n t h a t he s t a t e d he

was " q u a l i f i e d under law" f o r o f f i c e , when i n f a c t he was n o t

a "freeholder" a s required by s t a t u t e .                   Such f a l s e f i l i n g was

found t o be a v i o l a t i o n of t h e Corrupt P r a c t i c e s Act, s e c t i o n

23-4758, R.C.M.            1947, and proper grounds f o r c o n t e s t of nomina-

t i o n under s e c t i o n 23-4763(1), R.C.M.                1947, i n t h a t i t was         'I*   **
a d e l i b e r a t e , s e r i o u s , and m a t e r i a l v i o l a t i o n of any p r o v i s i o n

of t h e law r e l a t i n g t o nominations o r e l e c t i o n s .I'

                                           - 3 -
     Appellant moved for and was granted a hearing pursuant to
his motion to amend the findings and judgment. No substantial
amendment resulted from that hearing.

     On June 29, 1977, this Court granted appellant a stay of

execution8 of judgment, pending appeal.
     The issues on appeal are:

        (1)   Are the "freeholder" requirements contained in sections

11-714 and 11-725, R.C.M.     1947, unconstitutional as being

repugnant to the equal protection clause of the United States

Constitution?
        (2) Was the evidence adduced sufficient to support the
conclusions of the District Court that appellant committed a
"deliberate, serious, and material" violation of the election

laws?

     Issue ()
            1.      Appellant principally argues the unconstitu-
tionality of the statutory "freeholder" requirements. Appellant

maintains that he was qualified under law for office, and made

no misrepresentation as to such status in his declaration of

nomination.

     Respondent contends the freeholder requirements of sections

11-714 and 11-725 are not unconstitutional under current federal

and state case authority and, in any case, the constitutional

question should be avoided because the case can be resolved

on other grounds.
    The United States Supreme Court considered the constitutionality
of a freeholder requirement for school board membership in Turner
         (19701,
v. ~ouche,/396U.S. 346, 90 S.Ct. 532, 24 L ed 2d 567, 581. In

Turner the Court found it unnecessary to determine whether the

Georgia freeholder requirement could withstand the strict scrutiny,

or "compelling state interest", test stating:
     "* * * it seems impossible to discern any interest
     the qualification can serve. It cannot be seriously
     urged that a citizen in all other respects qualified
     to sit on a school board must also own real property
     if he is to participate responsibly in educational
     decisions, without regard to whether he is a parent
     with children in the local schools, a lessee who
     effectively pays the property taxes of his lessor as
     part of his rent, or a state and federal taxpayer con-    '
     tributing to the approximately 85% of the Taliaferro
     County annual school budget derived from sources other
     than the board of education's own taxes on real property.
         "Nor does the lack of ownership of realty establish
     a lack of attachment to the community * * *. However
      reasonable the assumption that those who own realty do
     possess such an attachment, Georgia may not rationally
     presume that that quality is necessarily wanting in
     all citizens of the county whose estates are less than
     dieehold " .
     While the holding in Turner is limited to the factual
context there, we find the reasoning persuasive for purposes
of the instant determination.
     A host of federal decisions specifically hold freeholder
requirements for public office holding violative of equal
protection, regardless of the standard employed in determining
the constitutionality of such requirements. Davis v. Miller,
(D.C.Md.    1972), 339 F.Supp. 498; Anderson v. City of Belle Glade,
(S.D.Fla.   1971), 337 F.Supp. 1353; Connerton v. Oliver, (S.D.Tex.


     An identical qualification, that of section 11-3215, R.C.M.
1947, requiring candidates for the office of city commissioner
to own real estate within the municipality, was held unconstitu-
tional on its face by the United States District Court for the
District of Montana, in Warden v. City of Bozeman, Memorandum
No. 2341, (D.C.Mont. Butte Division, 1973).
     The freeholder requirements of sections 11-714 and 11-725
have no bearing on efficient functioning of the election process
  or in promoting a candidate's ability, responsibility and
  interest in the office sought. We fail to see how payment
  of property taxes bears any conceivable relation to one's
  qualifications for city government and, should it do so, we
  take notice of the fact that, as a lessee, a nonfreeholder

  effectively pays the property taxes of his lessor by way of rent.
  As a United States taxpayer, he contributes to funds which
  ultimately return to the city in the form of revenue sharing
  and other federally funded programs.
       Further, to prevent public representation by nonfreeholders
  is to restrict the field of candidates from which the voters can
  select. A substantial segment of the voting populace, i e
                                                         ..
  nonfreeholders, may thereby be prevented from seeking full repre-
  sentation of their interests. Warden v. City of Bozeman, supra;
  Cf. Bullock v. Carter, (1972), 405 U.S. 134, 92 S.Ct. 849, 31
  L ed 2d 92.
      Appellant enjoys a   "* * *   federal constitutional right to
  be considered for public service without the burden of invidiously
  discriminatory disqualifications."    Turner v. Fouche, 396 U.S. 362,
  90 S.Ct. 541, 24 L ed 2d 580. We hold the freeholder requirements

  of sections 11-714 and 11-725, R.C.M.   1947, bear no relation
 whatsoever to a person's qualifications and ability to serve as
  city councilman, such that the result of the application of said
- requirements is one of invidious discrimination. As such, the
 above freeholder requirements are unconstitutional, as violative
 of the equal protection clause of the Fourteenth Amendment to
  the United States Constitution.
       In so holding we bear in mind this Court's recent decision
  in Burritt v. City of Butte, (1973), 161 Mont. 530, 508 P.2d 563.
In Burritt the plaintiff was a nonresident freeholder of

property sought to be annexed by the City of Butte.    Plaintiff

attacked the constitutionality of the provision in section 11-403,

R.C.M.    1947, which limits protests to annexation to "resident

freeholders" in cities over 10,000 population, while in smaller
cities, a protester need only be a "freeholder".    This Court,

in upholding the constitutional validity of the classification,
recognized the compelling interests, both governmental and

economic, in making the process of annexation easier in large

cities. Such a case is clearly distinguishable from the instant
case where no conceivable governmental interest can be discerned
in the application of the freeholder requirement.

     The inquiry remains, given the unconstitutionality of the

freeholder requirements, whether appellant committed a "deliberate,
serious, and material" violation of the election laws by swearing

falsely to his filed declaration of nomination, specifically in

regard to his nonfreeholder status. We hold he did not.

     A legislative enactment declared unconstitutional is void.

State ex rel. Schultz-Lindsay Const. Co. v.Bd. of Equalization,

(1965), 145 Mont. 380, 403 P.2d 635; Billings Properties, Inc. v.

Yellowstone County, (1964), 144 Mont. 25, 394 P.2d 182. As such,
the enactment in legal contemplation is as inoperative as if it

had never been passed.    Judgments rendered before such an enact-
ment is declared unconstitutional by the highest court of the
state are therefore utterly void and not subject to collateral
attack.    Ex parte Anderson, (1950), 125 Mont. 331, 238 P.2d 910.
     Issue ()
            2.     This issue concerns the sufficiency of the
evidence to support the conclusion of the District Court that

the appellant committed a "deliberate, serious and material"
violation of the election laws. As we have held the property

ownership requirement unconstitutional, this issue merits only
minor consideration. However, even assuming the constitutionality

of the requirement, we are not convinced sufficient evidence was

introduced establishing a violation of the Montana Corrupt

Practices Act.

    The Oregon Supreme Court has consistently held that a

contestant has the burden of proving a violation of the Corrupt
Practices Act by clear and convincing evidence. Thomas v. Penfold,
(1975), 23 Ore. App. 168, 541 P. 2d 1065; Putnam v. Milne, (1973) ,13 Ore.

App. 540, 511 P.2d 442; Thornton v. Johnson, (1969), 253 Ore. 342,

453 P.2d 178. The underlying basis for such a standard is that

an election contest under the Act, if successful, has the serious

effect of disenfranchisement of the voters.   Thornton v. Johnson,

supra.
     Respondent in this case sought to establish that appellant

committed a "deliberate, serious, and material1'-violationof
the election laws.   The term "deliberate" plainly imports an
intentional violation of the election laws; a violation made

knowingly or, at the minimum, with conscious indifference. The
record here, upon thorough review, discloses no evidence that
appellant deliberately misrepresented his status regarding property

ownership.   In fact, there is substantial uncontradicted evidence

that appellant did not know property ownership was a legal quali-
fication of office. The declaration of nomination form, while
containing various questions dealing with other relevant quali-

fications for office, contains no questions designed to elicit

information concerning property ownership. Thus, it is manifest

that respondent failed to prove appellant deliberately violated

the election laws.
    The judgment of ouster rendered by the District Court is

reversed and this cause is dismissed.




We Concur:
