No. 12842 INTHE SUIZRlDlE COURT OF THE STATE OF MONTANA 1974

STATE OF MONTANA ex rel. ROBIN HATCH, Plaintiff and Relator,

FRANK MURRAY, Secretaryof State of the Stateof Montana, Defendant and Respondent.

ORIGINAL PROCEEDING: Counsel of Record: For Appellant: Cannon and Garrity

## ,Helena, Montana Donald Garrityargued

## ,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, AssistantAttorney General, argued,

Helena, Montana Thomas A. Budewitz, AssistantAttorney General, appeared,

Helena, Montana

Submitted: August 30, 1974 Decided:

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## 161974PER CURIAM: Prior to August 23, 1974,there were filed in the office of Secretary of StateFrankMurray approximately 16,880 signatures on referendum petitions requesting House Resolution No. 4, entitled "AJOINT RESOLUTION OF THE SENATEAND 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 ReferendumNo. 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 submitReferendumNo. 69 to the Montana voters at the general election. Because of thevery short time left forMurray to properly submitReferendumNo. 69 on the election ballot, an immediate hearing on thematter was arranged. After considering briefs and listening to oral arguments, this Court onAugust 30, 1974, issued

an Order restraining and enjoining Murray fromplacing Referendum No. 69 upon the ballot for theNovember 5, 1974,general election. Thepurpose of the following opinion is to give that Order the explanation itdeserves. Questions concerning Hatch's standing to bring this action and the power of the Court to exercise jurisdiction over itwere not pressed by Murray in order that themerits of the controversycould be timely reached. The only issue iswhether a joint resolutionof the Montana legislature ratifying a proposed amendment to the United States Constitution may be referred to the people. Our Order of August 30, 1974, wasmandated by the case of Hawkev. Smith, 253 U.S. 221, 64 L.Ed. 871, 40 S.Ct. 495,which is strikingly similar to and dispositve of the present controversy. InHawke, the Ohio legislature adopted a joint resolution ratifying the proposed Eighteenth Amendment to the United States Constitution. The Ohio Constitution specificallyprovided that ratification by the Ohio legislature of proposed amendments to the federal constitutionwas 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 referendumwas proper. This decision was reversed by theUnited States Supreme Court which found the disputed Ohio constitutional provision to be indirect conflict withArticle V of the United States Constitution and thereforevoid. Article 

### V provides: "The congress, whenever two-thirds of both houses shalldeem it necessary, shallpropose 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, shallbe 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 othermode of ratificationmay be proposed by the congress

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## * *." The Court stated,at 253 U.S. 227, that: "TheFifthArticle is a grant of authority by the people to Congress. The determinationof 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 twomethods: by action of thelegislatures of three fourthsof the states, or conventions in likenumber of states. Dodge v. Woolsey, 18 How. 331, 348, 15 L.Ed 401, 407. The framersof the Constitution might have adopted a differentmethod. Ratification might have been left to a vote of the people, or to some aut.horityof government other than that selected. The language of the article isplain, 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: "Thereferendum provisions of state constitutions and statutes cannotbe 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 statemay 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 statesdenying 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 legislaturehad been elected after the proposed amendmenthad been submitted for ratification.Submission of ReferendumNo. 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 allmembers 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, DistrictJudge, sat for Mr. Justice Gene B. Daly. Hon. E. Gardner Brownlee, District Judge, sat for Mr. JusticeWesley Castles.