No. 86-400 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, ex rel., MONTANA 

CITIZENS FOR THE PRESERVATION OF 

CITIZENS' RIGHTS, et al., 

Plaintiffs and Relators, 

JIM WALTERMIRE, Secretary of State, 

et al., 

Defendants and Respondents, 

and 

MONTANA LIABILITY COALITION, 

Real. Party in Interest. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relators: 

Goetz, Madden & Dunn; James H. Goetz argued, Bozeman, 

Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

James M. Scheier argued, Asst. Atty. General, Helena 

H. Elwood English argued, Secretary of State's Office, 

Helena, Montana 

Gary Pringle, Clerk & Recorder, Bozeman, Montana 

Real Party in Interest: 

Gerald J. Neely argued, Billings, Montana 

Amicus Curiae: 

Shelton D. Williams, Montana Assoc. Defense Counsel, 

Missoula, Montana 

Submitted: October 7, 1986 

Decided: December 11, 1986 

Filed: ~~G111986 

Clerk 
Mr. Justice Fred J. 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 plaintiffs1 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. Art. XIV, S 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. Art. 11, § 6 as 

follows (new portions are underlined, del.eted portions are 

lined through) : 
BE IT ENACTED BY THE STATE OF MONTANA: 

Section 1, Article 11, 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 ftt&& 

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-a~d-3ustiee-3ku&&-Ise-adrninis- 

-- (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 --r clvil proceeding; except that any express dollar 

limits on compensatory damages for actual economic 

-- loss for bodily injury must -- be approved & a 2/3 -- 

--- 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. 1985), 

691 P.2d 833, 41 St.Rep. 2373, final opinion (1985), 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 pre-election 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 pre-election 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 Livinqston 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., provi- 
sion 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 (Dec. 11, 1986) , No. 

86-411, we should decline to interfere with this right of 

constitutional change by initiative unless it appears to be 

absolutely essential. 

I1 

Is the Initiative invalid because it presents more than 

one amendment in a single ballot, in violation of Mont. 

Const. Art. XIV, § 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 Art. 11, § 16 to 

rational basis analysis; 4) eliminate the authority of the 

Court to review legislative enactments under Art. 11, ,§ 16; 

5) give the legislature sole authority to determine the 

existence and extent of individual rights and remedies; and 

6) require a 2/3 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. 

I11 

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 Art. 11, $ 16 of the Montana Constitution meaningless because of the provision that the section "shall n~t 

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. Art. 11, S 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 

S 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 S 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 S 13-27-316(2), MCA, and discussed more fully in our 

opinion in State ex rel. Boese v. Waltermire (Dec. 10, 1986), 

No. 86-383. 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 

5 13-27-316 (2) , MCA, could have been, but was not, followed. 

Plaintiffs' application for relief was denied without 

prejudice. 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 86-400 

STATE OF MONTANA ex rel. Montanans 

for the Preservation of Citizens' 

Rights, the Montana State AFL-CIO; 

the WOMEN'S LAW CAUCUS; TYNDALL COX; 

GARY HENRICKS and PAM McCLAIN, 

individually and as next friend of 

her minor daughter, FELICIA McCLAIN, 

Plaintiffs and Relators, 

JIM WALTERMIRE, Secretary of State 

of the State of Montana, MIKE GREELY, 

Attorney General of the State of Montana; 

GARY PRINGLE, Election Administrator and 

Clerk and Recorder of Gallatin County, 

Montana, individually and as representative 

of the Class of All Election Administrators 

and the Clerk and Recorders of the State of 

Montana; and the STATE OF MONTANA, 

Defendants and Respondents, 

and 

MONTANA LIABILITY COALITION, 

Real Party in Interest. 

ORDER 

Plaintiffs and Relators have filed an 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. 

?t 

DATED this - 7- day of October, 1986. 

4~7:~~ Chief Justlce 

The Honorable Joseph B. Gary, sitting in place of Justice 

Frank B. Morrison, Jr., would grant the writ of injunction. 

Justice John C. Sheehy and Justice William E. Hunt. Sr., 

dissenting: 

We dissent and would grant the injunction. Our opinion 

dissenting will follow in short order.