No. 14623 INTHE SUPREME COURT OF THE STATE OF MONTANA 1979

THE STATE OF MONTANA on the relation of LYNN MILLER, Individually and asChairman of theTax Relief Association, Plaintiffs and Relators,

FRANK MURRAY, Montana Secretaryof State, and the County Clerk and Recorders, et al., Respondents and Defendants.

Appeal from: DistrictCourt of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Relators: Petaja, Jacques & Smoyer, Helena, Montana Charles Petaja argued, Helena, Montana Leo Gallagher argued, Helena, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, Assistant Attorney General,

Helena, Montana Richard P. Heinz, County Attorney, argued, Polson,

Montana Patrick Flaherty, CountyAttorney, Boulder, Montana Mark Murphy, Deputy County Attorney, argued, Boulder,

Montana Charles Graveley, County Attorney, Helena, Montana Denzil R. Young, County Attorney, Baker, Montana John Flynn, County Attorney, Townsend, Montana

Submitted: September 20, 1979 Decided: 

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## .3%T 2Mr. Justice John C. Sheehy delivered the Opinion of the Court. Lynn Miller appeals from an order of the Lewis and Clark County District Court, denying a request for a declaratory judgment interpreting section 13-27-103,MCA, and instructing the respondents to certify and accept certain signatures which appear on petitions supporting relators' proposed initiative. Miller also appeals from the same order granting respondents' motion to quash relators' alternative request for a writ of mandate compelling the respondents to certify and accept the signatures so that the initiative could be placed on the ballot at the next general election. Relators,Lynn Miller is chairman of the Tax Relief Association, a group organized for the purpose of placing a constitutional initiative expanding the state gambling laws

on the 1978 general election ballot. Petitions for the purpose of collecting the necessary 31,672 signatureswere duly approved by the Secretary of State as to form and styleprior to June 30, 1978, and thereafter circulated among the electorate by members and supporters of theAssociation. The signed petitions were then turned into the respective County Clerk and Recorders who reviewed the submitted signatures and certified to the Secretary of State the signatures which they believed were qualified electors of the State by July 14, 1978. Shortly thereafter,the Secretaryof State determined the petition drive had fallen shortby 2,904 signatures. On August 15, 1978, the Association filed suit alleging approximately 3,500 signatureswere wrongfully disqualified. Specifically, relators requested a declaratory judgment -2-declaring: (1) that the signatures on an initiative petition need not be identical to satisfy the statutory requirement of section 37-116,R.C.M. 1947, that requires the petition be signed in substantially the same manner as on the voter registry card;

(2) that the address given by a petition signer need notbe identical to that found on thevoter registry card, so long as the address is still within the county and legislative district in which the petition is submitted for certification; and

(3) that certain signatures rejected by the Clerks and Recorders be declaredvalid, and direct the Montana Secretary of State to accept them and to certify the initiative as a ballot issue for the next general election. In the alternative,appellants sought awrit of mandate directing: (1) the County Clerk and Recorders to recount the signatureson the petitions filed in the respective counties and to certify those signatureswhich are substantially similar to the signatures on the voter registry cardsor to show causewhy;

(2) to certify those signatureswhich were accompanied by an address not identical to that on thevoter registry cardsbut which are still within the county and legislativedistrict in which the petitionwas submitted for certification or to show causewhy;

(3) the Montana Secretary of State to accept the recertified petitions and to certify the initiative as a ballot issue in the next general election if the required number of signatures have been secured or to show causewhy. An alternative writ of mandate was issuedby the District Court. A show cause hearing was held onAugust 29, 1978, at which time argumentswere heard and motions were made to dismiss the complaint and quash thewrit of mandate. The DistrictCourt by an order entered September 5, 1978, denied the declaratory relief and writ ofmandate and granted respondents' motion to quash. The Court based its denial of declaratory relief on the reasons that the controversy would become moot before a factualdetermination could bemade and that it is the function of the legislature and not the judiciary to resolve the question of petition signature qualifications. The denial of mandate relief

was for the reason that in carrying out their duties, the County Clerksmust exercise their discretion to determine whether a petition is signed in substantially the same

manner as the voter registry card and mandate will not issue to control discretion. We affirm. Relators present three issues for our review:

(1) Did the District Court err in refusing to issue a declaratory judgment? (2) Did the District Court err in refusing to issue the writ of mandate as asked? (3) Is it necessary for the Supreme Court to enter a declaratory judgment? We find that the first issue in this case is controlled by the last issue which will be addressed first and the mandate issue discussed last. This Courtwill not pass upon moot questions. Statev. Thompson (1978)

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# . , 576 P.2d 1105, 35 St.Rep. 343; Bell v. State Highway Commission

(1954),128Mont 122, 271 P.2d 425;Adkins v. City of Livingston (1948), 121Mont. 528, 194 P.2d 238. A questionwhich is moot isnot a proper subject for a declaratory judgment. See Chovanak v. Mathews (1948), 120Mont. 520, 188 P.2d 582. A moot question is onewhich existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy. In thepresent case, the Forty-Sixth Montana Legislature has significantly modified the statute on which relatorsdepend. See Chapter 494, Laws of 1979. As a result, itwould be superfluous for this Court to issue a declaratory judgment as requestedby relators. The controversy cannotbe repeated because the law has been decisively changed. -4-Not only has the specific statute in controversybeen changed,but sohave the initiative procedures that will be used for the ballot in 1980. Under the new law, the procedures to be used topetition for an initiative to be

on an election ballot differ greatly from the process used for the 1978 elections. See Chapter 400,Laws of 1979. Even though a sufficient number of valid signaturesmay in fact exist, therewas not sufficient time available to qualify thematter for the 1978ballot and we find no means of legal or equitable relief isnow available. For these reasons, this Court findsno basis to issue thedeclaratory relief sought by the relators. A writ ofmandate may be issued "to compel the performance of an actwhich the law specially enjoins - as - a duty resulting froman office

# . . ." (Emphasisadded.) Section 27-26-102(1),MCA. "Mandamusis an extraordinary remedy which lies to compel only a 'clear legal duty.'" State ex rel., State Tax, Etc. v. Montana Bd. (1979), 

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# . I 593 P.2d 747, 749, 36 St.Rep. 849, 851. The difficulty here is that therewas not a legal duty on the part of the Secretary of State under section 13-27-304,MCA, to accept any signatureswhich were not forwarded by the County Clerk and Recorders and verified as registered electors. Likewise, the Clerk and Recorders do nothave a duty to accept and certify signatures submitted to them as a matter of course. The Clerk and Recorders are only required to certify to the Secretary of State the number of signatures they find to be valid. In order to decide if a signaturemay be counted, the Clerk and Recorder must determine if the signatures on the petition are "signed in substantially the same manner" as the signatureson the voter registry cards. Section 13-27- 103,MCA. To satisfy this statutory requirement, the individual -5-Clerk and Recorders must exercise discretion. Mandate does not lie to control discretion,absent an abuse thereof. Burgess v. Softich (1975),167Mont. 70, 535 P.2d 178. Addresses aid the Clerk and Recorders in the certification process. The only purpose of the address is to aid in the identificationof the signer so that the Clerk can then locate the signer's voter registration for the purpose of certification. State

### v. Board of Examiners (1952),125Mont. 419, 239 P.2d 283. However, if it is the belief of the individual Clerk and Recorder that the signaturediffers from that on thevoter registry card, then the signature is not valid for thismeans of signature certification. This function of the Clerk and Recorder is discretionary,and we hold that the District Courtdid not err in refusing to issue a writ ofmandate as requested by the relators. The order of the District Court is affirmed.

Justice v

We Concur:

Chief Justice

tices