                                                                                           August 10 2012


                                         OP 12-0439

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2012 MT 168
                                    _________________

MONTANANS OPPOSED TO I-166, a Political
Committee, SENATOR DAVE LEWIS,
Individually, and as an Elected Member of the
Montana Legislature, PHIL LILLEBERG,
Individually, and as an Owner of FP, INC., a
Montana Corporation,

                    Petitioners,                                      OPINION
                                                                        and
      v.                                                               ORDER

STATE OF MONTANA HONORABLE STEVE
BULLOCK, in his capacity as Attorney General
and the HONORABLE LINDA McCULLOCH, in
her capacity as the Secretary of State,

                    Respondents.

¶1     Petitioners brought an original proceeding in this Court pursuant to § 13-27-316,

MCA, attacking the validity of Initiative 166. They request that this Court rule that the

Attorney General and the Secretary of State did not comply with their responsibilities under

law when they failed to act to bar I-166 from appearing on the general election ballot. I-166

is a ballot initiative that would establish that the policy of the State of Montana is that

corporations are not entitled to constitutional rights and are not persons. It “charges” elected

officials to implement the policy in part by acting to prohibit corporate political campaign

spending and to limit political spending in elections. It further “charges” Montana’s


                                               1
congressional delegation with proposing an amendment to the United States Constitution

establishing that corporations are not human beings entitled to constitutional rights.

¶2     The Montana Constitution, Art. III, sec. 4, empowers the people to enact laws by

initiative on all matters except appropriations and local or special laws. Proponents of an

initiative must gather a sufficient number of signatures on petitions that support placing the

matter on the ballot. Prior to gathering signatures the proponents must submit to the

Secretary of State the proposed text of the ballot issue along with a draft statement of the

purpose of the initiative and a separate statement of the implications of a vote for or against

the issue. The Secretary of State must submit the measure to the Legislative Services

Division for review and thereafter to the Attorney General for review. Upon review by

Legislative Services and upon approval of the Attorney General, the Secretary of State then

notifies the proponents of the measure, who may begin gathering signatures. Section 13-27-

202, MCA.

¶3     The Attorney General’s review is limited to determining the sufficiency of the ballot

statements and a review of the ballot issue for legal sufficiency. Section 13-27-312, MCA.

The statements must explain the purpose of the measure in 100 words or less and the

implications of votes for or against, in 25 words or less. Section 13-27-312(2), MCA. The

Attorney General’s legal sufficiency review determines whether the proposal complies with

the applicable statutory and constitutional requirements. The legal sufficiency review

specifically “does not include consideration of the substantive legality of the issue if

approved by the voters.” Section 13-27-312(7), MCA.
                                              2
¶4     In the case of I-166, the Secretary of State received the proposal and submitted it to

Legislative Services and then to the Attorney General for review. The Attorney General

revised the proponents’ statement of purpose but otherwise notified the Secretary of State

that the proposal met the required legal sufficiency review. Upon notification by the

Attorney General the Secretary of State notified the proponents of I-166 that they could

begin gathering signatures, as provided in § 13-27-202. MCA.

¶5     The current petitioners, opponents of I-166, contend that the ballot statements do not

comply with law and that the Attorney General should not have approved them. They also

contend that the initiative itself is unlawful on several grounds including that it is a

resolution and not a law; that it improperly amends the Montana Constitution; and that it

improperly directs elected representatives how to vote. They sued under § 13-27-316(2),

MCA, which allows opponents of a ballot issue to contest the adequacy of the explanatory

statements and of the Attorney General’s determination of legal sufficiency. They seek no

other relief.

¶6     As previously explained, the Attorney General’s review for legal sufficiency is

limited by law to determining whether the petition for a ballot issue complies with the

statutory and constitutional requirements “governing submission of the proposed issue to the

electors.” It does not include consideration “of the substantive legality of the issue if

approved by the voters.” Section 13-27-312(7), MCA. However, the petitioners in this case

seek to have this Court require that the Attorney General undertake precisely the substantive

legal review that is excluded by law. By statute, the Attorney General had no power to
                                             3
review the substantive legality of I-166. The petition does not allege nor does this Court find

that the petition was legally insufficient as to the requirements for submission of a proposed

ballot issue.

¶7      We have reviewed the explanatory statements that were approved by the Attorney

General. Section 13-27-312(4), MCA, requires that the statements of purpose and of the

implication of a vote must be “true and impartial” and must be in “easily understood

language and may not be arguments or written so as to create prejudice for or against the

issue.” The petitioners request that this Court either reject the statements approved by the

Attorney General, or re-write them. Upon review of the statements we determine that they

meet the requirements of § 13-27-312(2) and (4), MCA.

¶8      Petitioners have not requested any other relief, see e.g. Harper v. Waltermire, 213

Mont. 425, 691 P.2d 826 (1984), and we decline to consider any such issues not properly

pled.

¶9      For the reasons stated above, the petition is denied.

        DATED this 10th day of August, 2012.


                                                   /S/ MIKE McGRATH

We concur:

/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




                                              4
Justice Beth Baker, concurring.

¶10    I concur with the Court’s decision to reject the petition in this case and to allow I-166

to appear on the November 2012 general election ballot. I also concur in the Court’s

determination that the Attorney General’s ballot language fairly represents the text of the

measure and therefore meets the requirements of § 13-27-312(2) and (4), MCA.

¶11    The key issue is whether the petition states a claim that may be entertained in a pre-

election original proceeding before this Court. While striving to give liberal construction to

constitutional and statutory initiative and referendum provisions in order “to maintain the

maximum power in the people,” the Court previously has invalidated proposed ballot issues

that are beyond the power that the people reserved to themselves in Article III, Sections 4

and 5, of the Montana Constitution. Chouteau County v. Grossman, 172 Mont. 373, 378,

563 P.2d 1125, 1128 (1977) (invalidating county referendum proposal that concerned an

administrative rather than legislative function); Harper, 213 Mont. at 428-29, 691 P.2d at

828-29 (invalidating initiative that proposed a legislative resolution compelling the

legislature to reach a specific result).

¶12    Since those cases were decided, the legislature has acted several times over the years

to clarify when legal challenges may keep an initiative or referendum off the ballot. Section

3-2-202(3)(a), MCA, under which the petition in this case was filed, now makes clear that

this Court has original jurisdiction to review “the attorney general’s legal sufficiency

determination in an action brought pursuant to 13-27-316.” Under § 13-27-316(2), MCA,



                                               5
Petitioners here have requested the Court to alter the Attorney General’s ballot statements

and to overrule his determination that the petition is legally sufficient.

¶13    Consistent with its obligation to construe the statutes to promote, rather than to curtail,

the people’s right of direct democracy, the Court interprets the Attorney General’s “legal

sufficiency” review authority narrowly. Thus, the Court refuses to read § 13-27-312(7),

MCA, as conferring power on the Attorney General to reject a citizen-initiated ballot

measure for constitutional deficiency. (Opinion, ¶ 6.) The Dissent argues that the Attorney

General has power to declare a proposed initiative or referendum facially unconstitutional

and to prohibit its placement on the ballot. (Dissent, ¶ 40.) While I believe that it is the

judicial branch of government, not the executive, that determines whether a ballot measure is

facially unconstitutional, I do not confine my decision in this case to the Court’s rationale

that the petitioners simply failed to request the proper form of relief.

¶14    “[W]hen the legislature has prescribed a specific process for a court challenge to a

ballot measure, we have refused to intervene prior to the election if that process was not

followed.” Reichert v. State, 2012 MT 111, ¶ 95, 365 Mont. 92, 278 P.3d 455 (Baker, J.,

concurring and dissenting) (citing State ex rel. Mont. Citizens for the Preservation of

Citizens’ Rights v. Waltermire, 224 Mont. 273, 278, 729 P.2d 1283, 1286 (1986)). In

contrast to the law at the time Harper and Grossman were decided, the statutes now reflect a

clear preference to defer ruling on the constitutionality of a proposed initiative petition until

after the results of the election at which it is submitted to the voters. The governing statutes

expressly preserve “the right to challenge a ballot issue enacted by a vote of the people.”
                                               6
Section 3-2-202(5), MCA. See also § 13-27-316(6), MCA (“This section does not limit the

right to challenge a constitutional defect in the substance of an issue approved by a vote of

the people.”). (Emphasis added.)

¶15    Petitioners’ claim that I-166 is beyond the power of initiative and referendum

challenges an alleged constitutional defect in the substance of the measure. Whether or not

the Court possesses original jurisdiction in a proper proceeding to invalidate a proposed

ballot measure prior to the election (§ 3-2-202(1), MCA), I would hold in this case that

Petitioners’ challenge to I-166 does not meet the Court’s own requirements for discretionary

exercise of its original jurisdiction (M. R. App. P. 14(2) and (4)) and must await the final

election results in November. At that time, if the measure is approved by the voters,

Petitioners may proceed by filing a complaint for declaratory judgment in district court and

by pursuing the “normal appeal process” in this Court. M. R. App. P. 14(4). That process is

better suited for the development and informed consideration of constitutional questions such

as those raised in the petition. I do not read the Court’s decision today to foreclose such a

challenge if the measure is approved in the general election.



                                                         /S/ BETH BAKER




                                             7
Justice James C. Nelson, dissenting.

¶16    I respectfully dissent from the Court’s decision to deny relief. I agree, rather, with the

arguments of Petitioners and would order the Secretary of State not to place I-166 on the

2012 general election ballot or, if the ballots have already been printed with the measure, not

to count the votes. See Reichert v. State, 2012 MT 111, ¶¶ 1, 13, 365 Mont. 92, 278 P.3d

455. Before detailing my legal analysis, I have three observations.

                                        I. Contempt

¶17    First, aside from the fatal legal problem plaguing I-166 (discussed below), this

initiative is, at bottom, simply a feel-good exercise exhibiting contempt for the federal

government and, particularly, the United States Supreme Court.1 Obviously, corporations

are not “human beings,” and the fact that Montana voters may (or may not) have heartburn

with the notion of corporations as “persons” imbued with constitutional rights is largely

irrelevant. Make no mistake, I share the pain of my fellow Montanans. See Western

Tradition, ¶ 132 (Nelson, J., dissenting). And if Montana wants to change its laws to provide

that corporations are not persons and are without constitutional rights, it certainly can do

that. But the I-166 exercise—at least that portion of the initiative directing Montana’s

elected and appointed officials how to act at the state level—is not going to alter these

concepts at the federal level or in our sister states. Indeed, I suspect that amending

       1
         One could refer to this as “thumbing Montana’s nose” at the feds. Regardless of the
nomenclature, however, the intent is the same. I thus refer to this measure as “the I-166
exercise.” It is a sequel to the “Made in Montana” approach that failed in Western Tradition

                                               8
Montana’s laws in this fashion would put Montana corporations at a distinct disadvantage in

interstate commerce and, likely, cause Montana businesses to incorporate elsewhere.

¶18    The fact is that corporations are “persons” imbued with certain constitutional rights

because the Supreme Court has said so. First Natl. Bank v. Bellotti, 435 U.S. 765, 780 n. 15,

98 S. Ct. 1407, 1418 n. 15 (1978) (“It has been settled for almost a century that corporations

are persons within the meaning of the Fourteenth Amendment.”); but see Bellotti, 435 U.S. at

822-23, 98 S. Ct. at 1439-40 (Rehnquist, J., dissenting). The I-166 exercise, even if adopted,

is not going to change that. Likewise, the Supreme Court has also said, unequivocally, that

the protections of the First Amendment to the United States Constitution extend to

corporations, Citizens United v. FEC, ___ U.S. ___, 130 S. Ct. 876, 899-900 (2010) (citing

numerous cases dating back as far as the 1950s), and that the government cannot prohibit

corporations from making independent expenditures to influence elections and ballot issues,

Citizens United, 130 S. Ct. at 886, 913. Again, the I-166 exercise, even if adopted, is not

going to change that.

¶19    Montana challenged the applicability of Citizens United to Montana in the Western

Tradition case, citing Montana’s “unique” experience with political corruption and its 1912

Corrupt Practices Act. But Montana lost—summarily, no less:

       The question presented in this case is whether the holding of Citizens United
       applies to the Montana state law. There can be no serious doubt that it does.
       See U.S. Const., Art. VI, cl. 2. Montana’s arguments in support of the



Partn. v. Mont. Atty. Gen., 2011 MT 328, 363 Mont. 220, 271 P.3d 1, rev’d sub nom. Am.
Tradition Partn. v. Bullock, ___ U.S. ___, 132 S. Ct. 2490 (2012) (per curiam).
                                              9
       judgment below either were already rejected in Citizens United, or fail to
       meaningfully distinguish that case.

Am. Tradition, 132 S. Ct. at 2491. Thus, this Court’s decision in Western Tradition—

prominently cited at § 2(4) of I-166—is not the law of this State. And for the text of I-166 to

imply, as it clearly does, that Montana’s “uniqueness” argument and this Court’s decision in

Western Tradition are still in play is patently false and misleading. The Supreme Court in

American Tradition unequivocally rejected Montana’s “uniqueness” argument, the

applicability of Montana’s Corrupt Practices Act, and this Court’s decision to the contrary.

The Supreme Court held that Citizens United applies to Montana. Citizens United states that

“[c]orporations and other associations, like individuals, contribute to the discussion, debate,

and the dissemination of information and ideas that the First Amendment seeks to foster.”

Citizens United, 130 S. Ct. at 900 (internal quotation marks omitted). Like it or not, this is

the law of the land and Montana is going to have to comply with it.

                                     II. False Promises

¶20    Second, and a point seemingly lost on those promoting the I-166 exercise, the

Supreme Court did not rely on corporate “personhood” in its decision in Citizen United.

Rather, the Supreme Court relied on the propositions, first, that expenditures (by a person or

an organization) on political communication are a form of “speech,” and second, that

“citizens [have the right] to inquire, to hear, to speak, and to use information to reach

consensus.” Citizens United, 130 S. Ct. at 898 (emphasis added). It should be noted that

these propositions were not created in Citizens United. Rather, they can be traced to Buckley

                                              10
v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976) (per curiam), and Bellotti, 435 U.S. 765, 98 S. Ct.

1407. Notably, the Supreme Court observed in Bellotti that

       [t]he court below framed the principal question in this case as whether and to
       what extent corporations have First Amendment rights. We believe that the
       court posed the wrong question. The Constitution often protects interests
       broader than those of the party seeking their vindication. The First
       Amendment, in particular, serves significant societal interests. The proper
       question therefore is not whether corporations “have” First Amendment rights
       and, if so, whether they are coextensive with those of natural persons. Instead,
       the question must be whether [the statute at issue] abridges expression that the
       First Amendment was meant to protect.

435 U.S. at 775-76, 98 S. Ct. at 1415. The Bellotti Court stated further that “[t]he inherent

worth of the speech in terms of its capacity for informing the public does not depend upon

the identity of its source, whether corporation, association, union, or individual,” 435 U.S. at

777, 98 S. Ct. at 1416, and that “the First Amendment goes beyond protection of the press

and the self-expression of individuals to prohibit government from limiting the stock of

information from which members of the public may draw,” 435 U.S. at 783, 98 S. Ct. at 1419

(emphasis added).

¶21    Hence, the Supreme Court broke no new ground in Citizens United when it defined

the constitutional protection of speech from the perspective of the listener. “[I]t is inherent

in the nature of the political process that voters must be free to obtain information from

diverse sources in order to determine how to cast their votes,” and the First Amendment does

not allow “the exclusion of a class of speakers from the general public dialogue.” Citizens

United, 130 S. Ct. at 899. Quite the contrary, the First Amendment protects the “open

marketplace” of ideas, Citizens United, 130 S. Ct. at 899, and prohibits restrictions on
                                              11
political speech based on the speaker’s identity, Citizens United, 130 S. Ct. at 902-03.

Because voters must be free to obtain information from diverse sources, it is a violation of

the First Amendment to control expression by distinguishing among different speakers and

the subjects upon which they may speak. Citizens United, 130 S. Ct. at 898-99. The

Supreme Court held that this country’s law and tradition require more expression, not less,

Citizens United, 130 S. Ct. at 911, and that “[w]hen Government seeks to use its full power,

including the criminal law, to command where a person may get his or her information or

what distrusted source he or she may not hear, it uses censorship to control thought,”

Citizens United, 130 S. Ct. at 908 (emphasis added).

¶22    It is undoubtedly easier to sell the proposition that corporations are not “human

beings” or “persons” than it would be to persuade the electorate that the government may, in

fact, restrict the sources from which voters may get their information. Yet, in terms of what

these two actually accomplish, there is a world of difference. It is apparent that adoption of

the latter proposition (by Congress and three-fourths of the state legislatures) is what’s

needed to overturn Bellotti and Citizens United. Any amendment designed to negate these

precedents would need to exclude corporate expenditures from the definition of protected

“speech” under the First Amendment. Adopting the former proposition that corporations are

not “persons,” in contrast, accomplishes absolutely nothing for First Amendment purposes—

apart from wasting the electorate’s time and resources.

¶23    Viewed in the context of what Citizens United actually held, therefore, it is evident

that this initiative, as presently written, is little more than a source of false hope for many
                                              12
voters and an illegal—not to mention futile—attempt to end-run the Citizens United

decision. As with Montana’s first attempt to do that, I suspect that if the I-166 exercise

remains on the ballot and is challenged before the Supreme Court, it will suffer the same

summary rejection as did this Court’s decision in Western Tradition.

¶24    Charging Montana’s congressional delegation with the obligation of offering an

amendment to the United States Constitution to, among other things, overturn Citizens

United is an equally misguided feel-good exercise in contempt. Realistically, in today’s

political climate, a proposal to amend the federal Constitution (a nearly impossible task

under the most favorable circumstances) in order to overturn a Supreme Court decision that

is wildly popular with at least one of the major political parties, with one of the major fringe

parties, and, most importantly, with the very corporations that already effectively control

Congress has less of a chance at success than the proverbial snowball has of surviving in

Hades. It (the constitutional amendment) is not going to happen, and the attorneys and

public officials promoting the I-166 exercise would have to candidly admit that. Leading

voters to think otherwise is not only disingenuous, but just plain silly. An arguably more

productive focus would be on strengthening the disclosure laws. If voters have the right to

obtain information from diverse sources in order to make informed choices, as the Supreme

Court has said, then they also have a corresponding right to know who is providing the

information and the ability to judge the credibility, motives, and agenda of the speaker.

Citizens United, 130 S. Ct. at 914.



                                              13
¶25    Even assuming, for the sake of discussion, that a federal constitutional amendment

were to be adopted, such an amendment would necessarily have to amend the First

Amendment itself—or even “repeal” it, as was done to the Eighteenth Amendment. See U.S.

Const. amend. XXI, § 1 (“The eighteenth article of amendment to the Constitution of the

United States is hereby repealed.”). The First Amendment, adopted in 1791, protects five

freedoms: religion, speech, the press, to peaceably assemble, and to petition for redress of

grievances. Important for our purposes here, it provides that “Congress shall make no law

. . . abridging the freedom of speech.” So, if the object of the I-166 exercise is to have

Congress and the states change this provision so as not only to permit restrictions on

corporate contributions and expenditures, but also to “accomplish a level playing field in

election spending” (see I-166, § 3(1)), then it will be necessary to make significant revisions

to the First Amendment’s currently broad and unqualified protection of “freedom of speech.”

Personally, I like the First Amendment the way it is, and I would not want anyone—

especially a politically polarized and dysfunctional Congress—tinkering with it. God only

knows what might come out of that effort.

                                III. Petitioners’ Hypocrisy

¶26    As for my third observation, Petitioners’ challenge, while legally sound, would be

more palatable if it were not so palpably hypocritical. As the 2011 session of the Montana

Legislature demonstrated time and again, there are some in that esteemed body who




                                              14
apparently believe it is part of their job descriptions to propose or adopt resolutions and bills2

(and issue press releases and other pronouncements) which effectively thumb Montana’s

nose at the federal government and federal law. See Western Tradition, ¶ 71 (Nelson, J.,

dissenting). Most thinking Montanans view this grandstanding for what it actually is:

political pandering which accomplishes nothing substantive and which wastes the valuable

state resources and limited time of the elected officials involved. Yet, here we are in court

with Petitioners rising up in righteous indignation against the same sort of I-166 exercise.

Apparently there is no shame. But then, to be right, the law does not require contrition or

regret. As noted, Petitioners are legally correct.

¶27    Petitioners advance five meritorious arguments: I-166 is a resolution, not a law; I-166

requires elected officials to vote in a particular predetermined manner; I-166 is a resolution

compelling Montana’s congressional delegation to propose an amendment to the United

States Constitution; I-166 contains more than one subject; and the statements prepared or

approved by the Attorney General do not meet the requirements of law. I am satisfied,

however, that the first argument is sufficient to resolve this case. The I-166 exercise facially

       2
         A partial listing of these sorts of resolutions and bills include: HJR1 (remove
gray wolf from endangered species list); HJR4 (opposing designation of national
monuments without consent from the state of Montana); SJR4 (urging Congress to adopt
a balanced budget amendment); SJR6 (regarding the use of federal lands); SJR7
(opposing definitions in the federal Water Pollution Control Act); SJR12 (regarding oil
and gas lease development on federal lands); HB414 (providing for federal mandate
accountability); SB 114 (requiring federal law enforcement to communicate with county
sheriffs); and SB254 (providing state eminent domain authority for federal lands).
Ironically, SB404, a bill that would have required constitutional analysis of bill draft
requests, died in committee.
                                               15
violates Article III, Section 4 of the Montana Constitution. My analysis below is focused on

this issue.

              IV. I-166 Does Not Comply with Constitutional Requirements

¶28    As this Court recently stated, pre-election judicial review of initiatives should not be

routinely conducted, so as to protect and preserve the rights which Montanans have reserved

to themselves to change the laws or the Constitution through the initiative process. Reichert

v. State, 2012 MT 111, ¶ 59, 365 Mont. 92, 278 P.3d 455. However, this Court reserves the

right to declare patently defective measures invalid. Reichert, ¶ 59 (citing State ex rel. Steen

v. Murray, 144 Mont. 61, 69, 394 P.2d 761, 765 (1964), State ex rel. Harper v. Waltermire,

213 Mont. 425, 428, 691 P.2d 826, 828 (1984), Harper v. Greely, 234 Mont. 259, 268, 763

P.2d 650, 656 (1988), and Cobb v. State, 278 Mont. 307, 311, 924 P.2d 268, 270 (1996)).

Indeed, we have held that where a measure is facially defective, placing it on the ballot does

nothing to protect voters’ rights and instead “creates a sham out of the voting process by

conveying the false appearance that a vote on the measure counts for something, when in fact

the measure is invalid regardless of how the electors vote.” Reichert, ¶ 59.

¶29    First and foremost, the I-166 exercise (the complete text of which is attached at the

end of this Dissent) does not propose the enactment of any law. Indeed, as the Attorney

General readily and repeatedly concedes, the I-166 exercise is framed in terms of stating a

“policy” and “philosophy” and then “direct[ing]” and “charg[ing]” Montana’s elected and

appointed officials with “promot[ing]” and “carrying out” that policy and philosophy. See



                                              16
I-166, §§ 3, 4. The policy and philosophy dictate that “corporations are not human beings

with constitutional rights,” that corporations should be prohibited “from making

contributions to or expenditures on the campaigns of candidates or ballot issues,” and that

there should be “a level playing field in election spending.” I-166, § 3. As already noted,

these propositions contradict well-settled federal constitutional law.3 Furthermore, the

initiative charges Montana’s congressional delegation with “proposing a joint resolution

offering an amendment” to the federal Constitution which establishes that corporations are

not human beings with constitutional rights, which establishes that corporate campaign

contributions and expenditures may be prohibited, and which achieves “a level playing field

in election spending.” In sum, the I-166 exercise does not enact new law or repeal existing

law—nor does it even purport to do so. Rather, it simply charges elected and appointed

officials at the state level with violating the law already established by the Supreme Court

and our congressional delegation at the federal level with pursuing a course of conduct that

is not only misguided, but also virtually certain to fail. The I-166 exercise, even if adopted,

cannot change federal law; it does not change state law; and it does not change the law of

any sister state. Rather, the I-166 exercise simply does into the wind what most Montana

children learn to avoid early in life.




       3
         With respect to the “level playing field” policy, the Supreme Court has rejected the
notion “ ‘that government may restrict the speech of some elements of our society in order to
enhance the relative voice of others.’ ” Citizens United, 130 S. Ct. at 904 (quoting Buckley,
424 U.S. at 48-49, 96 S. Ct. at 649).
                                              17
¶30    More to the point, Article III, Section 4 of the Montana Constitution reserves to the

people of this State the right to “enact laws by initiative on all matters except appropriations

of money and local or special laws.” A “law” is “a solemn expression of the will of the

supreme power of the state.” Section 1-1-101, MCA. “The will of the supreme power is

expressed by: (1) the constitution; (2) statutes.” Section 1-1-102, MCA. Whereas a

“policy” represents “[t]he general principles by which a government is guided in its

management of public affairs,” the “law” represents the actual “regime that orders human

activities and relations through systematic application of the force of politically organized

society.” Black’s Law Dictionary 1178 (Bryan A. Garner ed., 7th ed., West 1999). “The

organic law is the constitution of government and is altogether written. Other written laws

are denominated statutes. The written law of this state is therefore contained in its

constitution and statutes and in the constitution and statutes of the United States.” Section

1-1-105, MCA. Statutes which create and affect corporations are public statutes. Section

1-1-106, MCA. The Code also recognizes the decisions of this country’s courts as law.

Sections 1-1-107, -108, -109, MCA.

¶31    As noted already, Article III, Section 4 reserves to the people the right to enact laws

by citizen initiative. Clearly, Montana’s blackletter law does not define “law” as including

“policies” and “philosophies” that one party or special interest group may wish the

government and elected officials to pursue. Article III, Section 4 does not empower the

people to pass policies or enact philosophies, or to direct governmental officials to pursue

such policies or philosophies—setting aside the fact that, here, such direction is to actually
                                              18
violate established federal constitutional law and precedent. The power to enact laws by the

initiative process does not include the power to enact what amounts to a legislative

resolution. Harper, 213 Mont. at 429, 691 P.2d at 828-29. And, charitably speaking, that is

all the I-166 exercise is—a feel-good expression of contempt directed against the federal

government and federal constitutional law. Even if enacted, the I-166 exercise would not be

a “law.”

¶32    The Attorney General offers the meager assertion that I-166 could be read as enacting

“a statutory policy statement, not merely a resolution,” and that “[s]tatutory policy

statements occur throughout the Code.” The Attorney General cites § 2-15-142, MCA, as an

example.4 Section 2-15-142, MCA, however, was not enacted by citizen initiative. It was

enacted by the Legislature itself. See Laws of Montana, 2003, ch. 568, § 2. In making this

argument, the Attorney General fails to recognize that the issue here is not whether the

Legislature has the power to enact “statutory policy statements.” It is whether citizens have

that power in the form of citizen initiatives. Plainly, they do not. Mont. Const. art. III, § 4.

Their power is limited to enacting “laws,” not “statutory policy statements.”

¶33    Even if we assume, for the sake of argument, that the I-166 exercise constitutes the

proposal of a “law,” there is another fundamental problem that condemns the initiative to

obvious facial unconstitutionality. It is a firmly established principle of law that a statute or

“law” is void on its face if it fails to give a person of ordinary intelligence fair notice that his




                                                19
contemplated conduct is forbidden. No person should be required to speculate as to whether

his contemplated course of action may be subject to criminal penalties. State v. Taylor, 2000

MT 202, ¶ 29, 300 Mont. 499, 5 P.3d 1019.

¶34    Here, the problem is manifest. First, if an elected or appointed public official violates

I-166 as “law,” then that person can be prosecuted for a misdemeanor crime. See I-166, § 8

(stating that the initiative is “intended to be codified as an integral part of Title 13 and the

provisions of Title 13 apply to” the initiative); § 13-35-103, MCA (stating that “[a] person

who knowingly violates a provision of the election laws of this state for which no other

penalty is specified is guilty of a misdemeanor”). Second, and more problematic, it is not

reasonably clear what I-166, as “law,” would require.

¶35    Under § 3(1) of the initiative, in order to effectuate the policy and philosophy that

corporations (a) are not human beings (no court has ever said they were), (b) are not entitled

to constitutional rights (the Supreme Court has said they are), and (c) should not be permitted

to make campaign contributions or expenditures for or against candidates and ballot issues

(the Supreme Court has said they may), elected and appointed officials in Montana are

“charged to promote actions that accomplish a level playing field in election spending.”

Some “general” directives then follow at § 3(2) which are in the nature of policy

statements—and nearly all of which, again, have been rejected by the Supreme Court. For

example, these policy statements include that money is not speech; that constitutional rights

       4
        This statute directs state agencies to consider certain guiding principles when
formulating or implementing policies or administrative rules that have direct tribal
                                              20
belong to human beings, not corporations; that corporate use of wealth is corrosive and

distorting; that there should be a level playing field in campaign spending; and that there

should be limits on “large” contributions to or expenditures for the benefit of any campaign

by any source. If the I-166 exercise were to be construed as an actual “law,” how would any

public official of ordinary intelligence have fair notice that his or her contemplated act (or

failure to act) is unlawful, so that he or she could avoid violating the law and being subjected

to possible criminal sanctions?      The public official’s task in this regard is virtually

impossible. At the outset, in order to comply with the supposed I-166 “law,” the public

official will have to violate extant federal law, as already discussed. Then, the public official

will have to make sense of I-166’s amorphous and vague terms, phrases, and concepts—

including “level playing field,” “large” contributions and expenditures, and “promoting”

actions that accomplish the stated policies. I-166 provides no guidelines, no definitions, and

no parameters. What, for example, is too “large” a campaign contribution? $300? $10,000?

$5,000,000? Maybe $300 is too large in Teton County, but $5,000,000 is not too large in

Yellowstone County. Who knows? And, what, exactly, is the official supposed to do about

a too “large” campaign contribution? How, exactly, is the public official to “level the

playing field” and reduce the “corrosive and distorting” effects of “immense” aggregations

of corporate wealth?

¶36    Assuming I-166 to be a “law,” a public official who fails to correctly interpret these

terms may be subject to prosecution for the offense of failing to “promote” I-166’s policy.


implications. Section 2-15-142, MCA.
                                               21
Likewise, if a member of Montana’s congressional delegation does not encourage and

promote the futile constitutional amendment heretofore discussed, the offending senator or

representative may be charged with a misdemeanor. But is anyone—the Attorney General

included—really naïve enough to believe this could happen? Good grief! It is ludicrous in

the extreme to argue that I-166, as “law,” would give any public official fair notice of what

he or she is supposed to do or not do. While I-166, as “law,” may direct people how to

think—a dubious proposition in its own right—it gives them no fair notice at all of how to

act in a fashion so as to avoid the criminal penalties that may result from its violation. Thus,

even if the I-166 exercise is deemed a proposed “law” for purposes of saving it under Article

III, Section 4, the initiative is facially, unalterably, and inseverably void for constitutional

vagueness.

¶37    I understand the frustration with the Supreme Court’s decision in Citizens United. I

understand the frustration with the ability of corporate America to control elections and

legislative and executive branches of state and federal government. And I understand the

frustration with the certain knowledge that soon corporate America will be in control of the

judicial branch of government as well. However, shooting popcorn at a brick wall will

accomplish nothing, even if it makes one feel good. Those who aim to change the situation

are going to have to get a different gun.

¶38    In sum, this Court reserves the right to declare patently defective measures invalid.

See Reichert, ¶ 59, and cases cited therein. Indeed, we have very recently held that placing a

facially defective measure on the ballot does nothing to protect voters’ rights and instead
                                              22
creates a sham out of the voting process by conveying the false appearance that a vote on the

measure counts for something, when in fact the measure is invalid regardless of how the

electors vote. Reichert, ¶ 59. That is the case here. The I-166 exercise is a sham; it is

nothing but an exercise in feel-good contempt of the federal government and federal law.

The proposed initiative does not seek to enact “law.” It seeks, rather, to enact unenforceable

political policies and philosophies. Therefore, the I-166 exercise cannot constitutionally be

proposed as a ballot measure under Article III, Section 4 of Montana’s Constitution. And

even if, assuming for the sake argument, the I-166 exercise is deemed to be a proposed

“law,” the “law” is facially, unalterably, and inseverably void for constitutional vagueness.

                                V. The Court’s Approach

¶39    As a final matter, I note my disagreement with the Court’s conclusion that we cannot

grant relief.

¶40    The Court concludes that the Attorney General’s “legal sufficiency” determination is

limited under § 13-27-312(7), MCA, to a non-substantive review of the ballot language.

Opinion, ¶ 6. To the contrary, the plain language of this statute defines “legal sufficiency” to

mean “that the petition complies with statutory and constitutional requirements governing

submission of the proposed issue to the electors.” As discussed above, the problem here is

that the citizen-initiative process is available under Article III, Section 4 of the Montana

Constitution only to enact “laws.” Mont. Const. art. III, § 4(1) (“The people may enact laws

by initiative on all matters except appropriations of money and local or special laws.”

(emphasis added)). This constitutional process is not available to have the people enact
                                              23
“policies” and philosophies and to charge public officials with encouraging misguided,

impossible, and (at least under federal law) patently illegal acts. All that the I-166 exercise

purports to do is (1) set forth a policy and (2) direct elected and appointed officials to

promote that policy. See I-166, §§ 3, 4. Accordingly, the I-166 exercise on its face does not

“compl[y] with . . . constitutional requirements governing submission of the proposed issue

to the electors,” and the Attorney General should have rejected the measure as being facially

unconstitutional under § 13-27-312(7), MCA.

¶41    Presumably, under the Court’s approach, if some group got sufficient signatures to put

on the ballot an initiative which adopted a policy and philosophy that, contrary to Loving v.

Va., 388 U.S. 1, 87 S. Ct. 1817 (1967), Caucasians should not inter-marry with Native

Americans or African Americans and which charged state and local officials with working

diligently to carry out that policy, then, so long as the Attorney General found no fault with

the ballot language, this patently and facially unconstitutional measure would have to be put

to the vote. I cannot agree with such a cabined and absurd interpretation of § 13-27-312(7),

MCA.

                                      VI. Conclusion

¶42    Based on the foregoing, I would grant the Petitioners’ petition and order the Secretary

of State not to place I-166 on the 2012 general election ballot or, if the ballots have already

been printed with the measure, not to count the votes.

¶43    I dissent.



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                                                  /S/ JAMES C. NELSON




[Appendix to Dissent on the following 4 pages.]




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