No. 12842 

IN THE SUIZRlDlE COURT OF THE STATE OF MONTANA 

1974 

STATE OF MONTANA ex rel. 

ROBIN HATCH, 

Plaintiff and Relator, 

FRANK MURRAY, Secretary of State 

of the State of Montana, 

Defendant and Respondent. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Appellant : 

Cannon and Garrity , Helena, Montana 

Donald Ga rrity argued , Helena, Montana 

James W. Zion argued, Great Falls, Montana 

Emily Loring appeared, Great Falls, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

J. Michael Young, Assistant Attorney General, argued, 

Helena, Montana 

Thomas A. Budewitz, Assistant Attorney General, appeared, 

Helena, Montana 

Submitted: August 30, 1974 

Decided : SEP 16 1974 
PER CURIAM: 

Prior to August 23, 1974, there were filed in the office 

of Secretary of State Frank Murray approximately 16,880 signatures on referendum petitions requesting House Resolution No. 4, 

entitled "A JOINT RESOLUTION OF THE SENATE AND THE HOUSE OF 

REPRESENTATIVES OF THE STATE OF MONTANA RATIFYING THE PROPOSED 

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO 

EQUAL RIGHTS ON ACCOUNT OF SEX", passed by the second regular 

session of the 43rd legislative assembly of the State of Montana, 

be referred to the people of the state for their approval or 

rejection at the general election scheduled for November 5, 1974. 

On August 23, 1974, Murray duly notified Governor Thomas Judge 

that the requisite number of 15,980 qulaified electors had signed 

these petitions and that the referendum on House Resolution No. 

4 would be placed on the November 5 ballot as Referendum No. 69. 

Thereafter Robin Hatch, a citizen and resident of the 

State of Montana brought this original proceeding seeking an injunction from this Court permanently restraining and enjoining 

Murray from taking any action to submit Referendum No. 69 to the 

Montana voters at the general election. 

Because of the very short time left for Murray to properly 

submit Referendum No. 69 on the election ballot, an immediate 

hearing on the matter was arranged. After considering briefs and 

listening to oral arguments, this Court on August 30, 1974, issued 

an Order restraining and enjoining Murray from placing Referendum 

No. 69 upon the ballot for the November 5, 1974, general election. 

The purpose of the following opinion is to give that Order the 

explanation it deserves. 

Questions concerning Hatch's standing to bring this action 

and the power of the Court to exercise jurisdiction over it were 

not pressed by Murray in order that the merits of the controversy 
could be timely reached. 

The only issue is whether a joint resolution of the 

Montana legislature ratifying a proposed amendment to the 

United States Constitution may be referred to the people. 

Our Order of August 30, 1974, was mandated by the case 

of Hawke v. Smith, 253 U.S. 221, 64 L.Ed. 871, 40 S.Ct. 495, which 

is strikingly similar to and dispositve of the present controversy. 

In Hawke, the Ohio legislature adopted a joint resolution ratifying the proposed Eighteenth Amendment to the United States Constitution. The Ohio Constitution specifically provided that 

ratification by the Ohio legislature of proposed amendments to 

the federal constitution was subject to referendum. A referendum 

was called for under this provision and the plaintiff sued in the 

Ohio State courts to enjoin the Ohio secretary of state from 

spending public money in printing ballots for submission of the 

referendum to the voters. The Ohio Supreme Court held that the 

referendum was proper. 

This decision was reversed by the United States Supreme 

Court which found the disputed Ohio constitutional provision to 

be in direct conflict with Article V of the United States Constitution and therefore void. Article V provides: 

"The congress, whenever two-thirds of both 

houses shall deem it necessary, shall propose 

amendments to this constitution, or, on the 

application of the legislatures of two-thirds 

of the several states, shall call a convention 

for proposing amendments, which, in either case, 

shall be valid to all intents and purposes, as 

part of this constitution, when ratified by the 

legislatures of three-fourths of the several 

states, or by conventions in three-fourths 

thereof, as the one or the other mode of ratification may be proposed by the congress * * *." 

The Court stated, at 253 U.S. 227, that: 

"The Fifth Article is a grant of authority by the 

people to Congress. The determination of the 

method of ratification is the exercise of a 

national power specifically granted by the Constitution; that power is conferred upon Congress, 

and is limited to two methods: by action of the 
legislatures of three fourths of the states, 

or conventions in like number of states. 

Dodge v. Woolsey, 18 How. 331, 348, 15 L.Ed 

401, 407. The framers of the Constitution 

might have adopted a different method. 

Ratification might have been left to a vote 

of the people, or to some aut.hority of government other than that selected. The 

language of the article is plain, and admits 

of no doubt in its interpretation. It is 

not the function of courts or legislative 

bodies, national or state, to alter the 

method which the Constitution has fixed." 

The Court further stated at 253 U.S. 230: 

"It is true that the power to legislate in the 

enactment of the laws of a state is derived 

from the people of the state. But the power to 

ratify a proposed amendment to the Federal 

Constitution has its source in the Federal 

Constitution. The act of ratification by the 

state derives its authority from the Federal 

Constitution to which the state and its people 

have alike assented." 

Hawke was reaffirmed in the same term in the National 

Prohibition Cases, 253 U.S. 350, 386, 64 L.Ed. 946, 40 S.Ct. 486: 

"The referendum provisions of state constitutions and statutes cannot be applied, 

consistently with the Constitution of the 

United States, in the ratification or rejection of amendments to it." 

Ever since Hawke it has been clear that a state may not 

subject ratification by its legislature of a proposed amendment 

to the federal constitution to referendum nor may it otherwise 

limit its legislature in the exercise of its federal function 

of ratifying such amendments. See, for example, Lesper v. Garnett, 

258 U.S. 130, 66 L.Ed. 505, 42 S.Ct. 217, which struck down 

constitutional provisions of several states denying their legislatures power to ratify a women's amendment, and Trombetta v. 

State of Florida, 353 F.Supp. 575 (1973), which voided a section 

of the Florida Constitution prohibiting legislative action on any 

proposed amendment to the United States Constitution, unless a 

majority of the legislature had been elected after the proposed 

amendment had been submitted for ratification. 
Submission of Referendum No. 69 to the Montana voters 

would therefore have been a useless act, since the voters cannot constitutionally compel the legislature to rescind its 

ratification of the proposed Equal Rights Amendment. 

Mary Doubek, individually and for all members of a class 

known as Montana Citizens to Rescind E.R.A. has petitioned this 

Court for a rehearing and for permission to intervene as a party 

in this action and has also filed a complaint in intervention. 

The thrust of all these documents is to ask this Court 

to rule contrary to opinions of the United States Supreme Court. 

Whether she or the office of the Attorney General of Montana ask 

for that relief is immaterial, this Court is bound by the United 

States Supreme Court decisions and must follow them. 

The application for a rehearing is therefore denied, the 

petition to be allowed to intervene is likewise denied, and the 

complaint in intervention is ordered stricken. 

In this cause: 

Hon. LeRoy L. McKinnon, District Judge, sat for Mr. Justice 

Frank Haswell. 

Hon. Alfred B. Coate, District Judge, sat for Mr. Justice 

Gene B. Daly. 

Hon. E. Gardner Brownlee, District Judge, sat for Mr. 

Justice Wesley Castles.