No. 86-400 

IN THE SUPRENE CCURT OF THE STATE OF MOW"NA 

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, Rozeman, 

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: 06i 2 :' 1986 

Clerk 
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 & R-elators, 

VS. 

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 & Respondents,, 

and 

MONTANA LIABILITY COALITION, 

Real Party in Interest. 

DISSENTING OPINION 

On October 7, 1986, in an original proceeding before 

this Court captioned as above, the majority of this Court, 

consisting of Chief Justice J. A. Turnage and Justices Fred 

J. Weber, John Conway Harrison and L. C. Gulbrandson handed 

down an Order denying the application for writ of injunction 

and other appropriate relief in its entirety. 

The remainder of the Court, consisting of Justices John 

C. Sheehy, William E. Hunt, Sr. and the Hon.. Joseph B. Gary, 

District Judqe, sittj.nq in p3.ace of Mr. Justice Frank R. 
Morrison, Jr., dissented from the majority Order, stating 

they would grant the injunction. We file this Dissenting 

Opinion in accordance with § 3-2-204, MCA, in support of our 

Dissent to that Order. 

In the Order, the majority recited that the application 

was denied "without prejudice to consideration of the issues 

in other proceedings." We do not know if this means that the 

majority will defer consideration of the issues as we discuss 

them in this Dissent. It is our position that the issues 

raised by the application and the opposition thereto must be 

tackled immediately and this Opinion will therefore entail a 

full discussion of the issues. 

JURISDICTION AND STANDING 

In this Dissent, we will refer to all of the plaintiffs 

as "relators." The real party in interest in this case is 

the Montana Liability Coalition, to which we will refer as 

the "Coalition." The remaining defendants and respondents 

are incidental parties brought before us because they are 

elected officials having to do with the conduct of elections 

in this state, including the coming general election on 

November 4, 1986. 

Relator Montanans for the Preservation of Citizens' 

Rights is an -- ad hoc group of individual Montana citizens, 

voters and taxpayers formed for the purpose essentially of 

opposing proposed Constitutional Initiative No. 30, now set 

for the ballot on November 4, 1986, who claim they are 

individually, directly and adversely affected by the proposed 

Initiative. Relator Montana State AFL-CIO is a federation of 

labor organization workers who have rights and remedies 

protected by Art. 11, S 16 of the Montana Constitution which 

may be impaired by Constitutional Initiative No. 30. Relator 
Women's Law Caucus is a section of the Student Bar 

Association of the University of Montana, Law School, who 

contend that the preservation and enhancement of women's 

rights is involved in the Initiative and is adversely 

threatened thereby. Relator Tyndall Cox is a Montana 

citizen, voter and taxpayer who has sustained a Workers' 

Compensation injury, and who has a third-party action against 

a contractor who may be liable for all or part of the 

injuries he sustained and contends his cause of action is 

adversely threatened by the Initiative. Relator Gary 

Henricks is 31 years of age, a citizen, and a paraplegic from 

an accident for which he is presently maintaining an action 

against an automobile manufacturer. Henricks contends that 

he has a right to full compensation for his injuries which is 

directly and adversely affected by the proposed Initiative. 

Relator Pam McClain is a citizen, taxpayer, voter, the mother 

of a minor daughter who has sustained a severe and disabling 

brain in jury. McClain is presently maintaining a court 

proceeding for damages and again she contends the proposed 

Initiative will adversely affect the claim. 

Constitutional Initiative No. 30, set out more fully 

hereafter in this Dissenting Opinion, relators contend, and 

the dissenters agree, has serious constitutional defects 

which render the submission of the Initiative to the voters 

in the general election of November 4, 1986 impermissible. 

Rela-tors contend that unless enjoined by this Court, the 

election officials will submit to the electors in the general 

election of November 4, 1986 CI-30 as it is now constituted, 

and that the same will adversely affect their fundamental 

rights to pursue full redress for injury to property, person 

or character; that no other speedy or adequate remedy lies to 
them at law or otherwise and that the following issues should 

be considered by this Court: 

1. The statement of purpose of the Attorney General and 

the statements of implication contained in the Initiative are 

false and misleading. 

2. The proposed Initiative invades the separation of 

powers doctrine by transferring judicial a-uthority tc the 

legislature. 

3. The Initiative does not meet the constitutional 

requirement of presenting a single subject to the voters. 

The Coalition responds: 

1. That the issue of the sufficiency of the statements 

of the Attorney General is barred bl7 S 13-27-31 6 (2) , MCA and 

by la-ches by the relators. 

2. That the Initiative merely restores standards of 

judicial review recently enlarged by this Court as to the 

right of full redress. 

3. That the separation of powers provision of the 

Montana Constitution authorizes the division of judicial 

powers under provisions of Art. 111, § 1. 

4. That the Initiative presents a single subject, 

though multi-faceted, to the electors. 

The Coalition further responds that if this Court 

accepts jurisdiction on the sufficiency of the statements of 

the Attorney General, reasonable minds could differ on 

whether the statements are false, partial or prejudicial. 

It is significant that in its response, while the 

Coalition denies our jurisdiction of the issue of the 

sufficiency of the Attorney General's statements, it does not 

contest this Court's j~xrisdiction immediately to hear and 
decide the constitutional issues raised by the relators as to 

their claims of defects in CI-30. 

It is clear, therefore, that the pleadings present 

justiciable issues which involve a statewide effect, and have 

deep constitutional implications. Unless this Court 

determines the issues, substantial deleterious harm may 

result. Accordingly, the parties have standing and this 

Court should accept immediate jurisdiction to determine the 

issues presented. Grossman v. State of Montana, et al. 

(Mont. 1984), 682 P.2d 1319, 41 St.Rep. 804. See S 

3-2-205 (2), MCA. 

The effect of the majority Order to which we have 

dissented therefore is to decline to decide the substantive 

issues when all parties concede they should be decided by us. 

The refusal of the majority in this case to decide such 

issues is one of the reasons we have dissented. 

WHETHER THE ISSUE OF THE SUFFICIENCY OF THE ATTORNEY 

GENERAL'S STATEMENTS IS BARRED 

The 1972 Montana Constitution provides that the people 

may propose constitutional amendments by initiative. Art. 

XIV, 5 9. When a petition containing a sufficient number of 

signatures has been filed with the Secretary of State within 

the time required by the constitution or by law, it is the 

duty of the Secretary of State to certify immediately to the 

Governor that the completed petition has been officially 

filed. Section 13-27-308, MCA. In this case, the Attorney 

General certified the CI-30 to the Governor on July 30, 1986. 

It is the duty of the Secretary of State to transmit a copy 

of the ballot form to the Attorney General on the same d.ay 

the completed petition is certified to the Governor. Section 

13-?7-310, MCA. It is the duty of the Attorney General, 
through procedure set up in § 13-27-312, MCA, to provide for 

the ballot a statement of purpose, and statements of the 

implications of a vote for and against the measure. The 

statement of purpose and the statements of implication must 

express a true and impartial explanation of the proposed 

ballot issue in plain easily-understood language and may not 

be argumentative or written so as to create prejudice for or 

against the measure. Section 13-27-313(4), MCA. Persons who 

oppose the Initiative and do not believe that the statements 

of purpose and of implication satisfy the requirements of law 

may within ten days of the date of certification to the 

Governor petition the District Court in Lewis and Clark 

County for relief. 

Relators did not proceed in the District Court, but 

instead filed an original action in this Court on August 28, 

1986. In the meantime, the Secretary of State had certified 

the ballot to the county election administrators on August 

20, 1986, and had awarded the printing contract for the voter 

information packet on August 21, 1986. 

The Coalition contends that the Relators are barred in 

this Court because they did not first seek relief in the 

District Court. Yet the statute upon which the Coalition 

relies for opponents' action to commence in the District 

Court is at most permissive. Section 13-27-316(2), provides: 

If the opponents of a ballot measure believe that 

the statement of purpose, the statements of 

implication of a vote, or the fiscal statement 

formulated by the Attorney General pursuant to 

13-27-312 do not satisfy the requirements of 

13-27-312, they may, within 10 days of the date of 

certification to the Governor that the completed 

petition has been officially filed, file an action 

in the District Court for the County of Lewis and 

Clark challenging the adequacy of the statement and 

requests to the court to alter the statement. 
It is important to note that S 13-27-316 is not an 

imperative statute. The word "may" must be interpreted as 

permissive only. This Court has had a bitter prior 

experience with interpreting the word "may" as "must," which 

it did in State ex rel. Interstate Lumber Company v. District 

Court (1918), 54 Mont. 602, 172 P. 1030. The holding was 

repudiated in Hardenburgh v. Hardenburgh (1944), 115 Mont. 

469, 146 P.2d 151 and in Johnson v. Ogle (1945), 117 Mont. 

419, 159 P. 2d 337. Following up on these cases, this Court 

in Love v. Mon-0-Co Oil. Corporation (1958), 133 Mont. 56, 319 

P.2d 1056, again decided that the word "may" should not be 

given the force of "must." Our last expression on the 

subject occurred in Clark Fork Paving, Inc. v. Atlas Concrete 

and Paving (1978), 178 Mont. 8, 582 P.2d 799, 781, where we 

said that the word "may" as an exception to the statute [a 

venue statute] "needs to be read as a permissive word, and 

not as the imperative must." 

The reason given by the majority for the order denying 

relief, as that reason was expressed to us in this case, is 

that had the relators brought their action in the District 

Court, and there raised the sufficiency of the statement of 

purpose and the statements of implication, the District Court 

could have cured the same in the manner provided S 13-27-316, 

MCA. Since 5 13-27-316, is purely permissive, however, the 

majority, in denying relief, must be relying on laches, the 

other ground raised by the Coalition in its opposition to 

consideration of the sufficiency of the statements of purpose 

and implications. 

Laches is really a species of equitable estoppel. 

Generally it applies when the inaction of one party results 

in prejudice to another party or induces another party to 
change his position to his prejudice. Even though it may be 

argued that the Coali-tion has been prejudiced because the 

statement could have been altered in the District Court, that 

argument cannot apply to this case. The ten days provided in 

the permissive statute would be insufficient in this case to 

formulate the issues that relate to the statements here 

involved. Further it would be impossible, as the Coalition 

has argued before us, for the District Court to compose a 

statement of 100 words which would adequately advise the 

voter of the issues involved in CI-30. Moreover, there are 

parties interested, not represented here, whose rights are 

involved, the thousands of Montana residents whose 

fundamental rights to full redress before the courts are 

jeopardized by the Initiative. 

This Court has at least a minimum duty to make certain 

in a proper case, when this Court has the power to act, that 

when voters exercise their ballot right to determine a. 

constitutional initiative, they are adequately informed of 

the purpose of the initiative in a true and impartial manner. 

The majority here by their Order denying relief place greater 

stock in compliance with a permissive statute than in making 

certain that initiative issues are truly and impartially 

stated. 

There is a further and very compel'ling reason why this 

Court should not hesitate now to examine the sufficiency of 

the statements in CI-30. That reason is that under the 

statutory scheme for initiatives, the opportunity of 

opponents to object to statements approved by the Attorney 

General comes far too late in the game. Before a petition 

for initiative action is ever circulated for signatures, its 

form must first be submitted to the Legislative Council, to 
the Secretary of State, and to the Attorney General. Section 

37-27-202, MCA. These officials must review the form of the 

petition, including the statement of purpose and the 

statements of implication and approve or reject the form of 

the petition before signatures are solicited. There is no 

statutory provision then for an objector to the Initiative to 

object to the statements before signatures are procured 

although the proponents of the measure are given the right 

then to go to court if they do not agree with the approved 

form of the petition. Section 13-27-316(1), MCA. Thus in 

this case, the petition itself as it was circulated for 

signatures, contained a statement of purpose and statements 

of i.mplication approved by the Secretary of State and the 

Attorney General, which as we shall demonstrate were false. 

Who can say that the signatures would have been obtained if 

the signers knew in truth what the form of the Initiative 

masked? There are no equitable grounds for the application 

of laches against the relators here under the facts of this 

case. If the District Court or this Court were to revise the 

statement of purpose to its true intent, and we permitted a 

vote on a revised form in this case, the issue on the ballot 

would be substantially different from the issue petitioned 

for by those signing the petition. 

The final point, which we hope will be raised some day 

in a proper case, is that the adoption of § 13-27-316, MCA, 

by the Legislature is in excess of its legislative power. It 

is a rule of procedure and rules of procedure are the 

business of this Court subject only to disapproval by the 

Legislature. Art. VII, $ 2 (3) , 1972 Montana Constitution. 

The last contention on which laches might be based is 

the argument of the elected officials that the ballots have 
been printed and sent out, and that it would be expensive now 

to change them. Such an argument is balderdash. We have 

interrupted the ballot process at as close or closer 

intervals. See for example State ex rel. Harper v. 

Waltermire (Mont. 1984), 691 P.2d 826, 41 St.Rep. 2212. 

THE FALSITY OF THE BALLOT ISSUE 

The basic premise of CI-30, is as follows. As the issue 

will appear on the ballot, the voters will be given t-he 

impression that by their affirmative vote, the Legislature 

-- for the first time will have the right to determine the 

rights and remedies for injury or damage to person, property 

or cha.racter. That premise is baldly false. As long as we 

have been a state, the Legislature has had that power. 

We set out for the reader the full text of CI-30, as it 

will appear on the ballot: 

[ ] FOR amending the Montana Constitution to 

authorize the Legislature to determine the 

rights and remedies for injury or damage to 

person, property, or character. 

[ ] AGAINST amending the Montana Constitution to 

authorize the Legislature to determine the 

rights and remedies for injury or damage 

to person, property, or character. 

The language of the Attorney General's "Statement of 

Purpose" will not appear on the ballot, nor will there appear 

the text of the Initiative as it is proposed. If the voter 

desires to examine the Attorney General's explanatory 

statement, he/she must look to the "1986 Voter Information 

Pamphlet" promulgated by the Secretary of State. For the 

benefit of the reader, we set forth in full the Attorney 

General's explanatory statement of purpose: 

This initiative would amend the Montana 

Constitution to authorize the Legislature to 

determine the rights and remedies for injury or 

damage to person, property, or character. 

Currently the Constitution does not permit limits 
on these rights and remedies. A two-thirds vote of 

each house of the Legislature would be required to 

set dollar limits on damages for economic loss 

resulting from bodily injury. 

Further, if the voter desires to acquaint 

himself/herself with the full text of the Initiative to 

determine what it says, he/she will have to find it on a 

separate page of the 1986 Voter Information Pamphlet. 

Only in those counties, if any, not having an 

abbreviated form of ballot ( 13-27-501, MCA) will the 

Attorney General's explanatory statement and the statements 

of implication upon which the vote is taken appear in 

juxtaposition to each other. 

For the benefit of the reader, the full text of the 

Initiative, as it appeared on the signed petitions, is here 

set forth: 

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 

justice shall - be administered without sale, denial, 

- or delay. 

(2) No person shall be deprived of this *a&& 

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 and =jast&ee she&& be 

admi~istered witheat se&e, de~&a&, er desay. 

- (3) - This section shall -- not be construed -- as a 

limitation upon the authority -- of the legislature to 

enact statutes establishing, limiting, modifyinc 

- or abolishing remedies, claims for relief, damaqes, 

- or allocations of responsibility for damages - in any 

civil proceedin* except that any express dollar 

limits on compensatory damages for actual economic 

-- loss fo~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." 

[NOTE: Words struck out indicate words to be deleted by the 

Initiative. Underlining indicates new material.] 

The so-called "Statement of Purpose" of the Initiative 

that was approved by the Attorney General and the Secretary 

of State a.nd probably by Legislative Council, before the 

petitions for signatures were circulated, appeared on all the 

petitions that were signed. It will not appear on the ballot 

itself. The statement is palpably false. 

The Statement of Purpose starts out by telling the voter 

that the Initiative "FJOU~~ amend" the Montana Constitution 

"to authorize the Legislature to determine the rights and 

remedies for injury and damage to person, property or 

character." As we will demonstrate below, the Legislature 

has always had that authority. The next sentence of the 

Statement of Purpose, however, is particularly misleading and 

deceitful. It states, "Currently the Constitution does not 

permit limits on these rights and remedies." There is no 

legal or statutory basis for that statement. 

Art, V, (5 1, 1.972 Montana Constitution provides, h he 

Legislative power is vested in a legislature . . . " The 

1889 Montana Constitution carried the same language. Art. V, 

S 1. In State ex rel. DuFresne v. Leslie (1935), 100 Mont. 

449, 50 P.2d 959, we said: 

The sovereign power of the state rests with the 

people. The legislative assembly, as the 

authorized representative of the people, exercises 

this sovereign power. 

. . . It is very clear that, except for limitations 

placed upon the power of the Legislature, first, by 

the Constitution of the United States and, second, 

by the Constituti.on of the State, the will of the 
legislative body may be freely exercised in all 

1-egislative matters unrestricted. 

100 Mont. 452-453, 50 P.2d 961. 

Similar language regarding the plenary power of the 

Legislature will be found in Mills v. Stewart (1926), 76 

Mont. 429, 247 P. 332; State ex rel. Evans v. Stewart (1916), 

53 Mont. 18, 161 P. 309; State v. Camp Sing (1896), 18 Mont. 

128, 44 P. 516. 

In Shea v. North Butte Mining Company (1919), 55 Mo~t. 

522, 179 P. 499 (amazingly relied on by the coalition), this 

Court defended the right of the Legislature to establish a 

Workers1 Compensation Act which took away from injured 

workers covered by the Act the right to go to court against 

their employer. We held that no Constitutional guarantee was 

impinged by the abolition through the Legislature of the 

injured parties1 common law rights against the employer and 

the substitution of a Workers' Compensation Act. 

Thus it has always been recognized that the Legislature 

has full authority "to determine the rights and remedies for 

injury or damage to person, property or character" although 

the ballot issue under CI-30 would imply that it has no such 

power. 

Nor has the Legislature been reticent in using its power 

to limit rights and liabilities. It has provided measures of 

damages in all civil actions (Title 27, Part 3, MCA) ; 

provided for the survival of causes of action in cases of 

death, (§ 27-1-501, MCA); accorded minors the right to bring 

a civil action, (S 27-1-511, MCA); accorded immunity from 

suit for legislative acts and omissions, (S 2-9-111, MCA); 

and this Court has upheld restrictive access to the courts 
under the Montana Medical Legal Panel Act (Title 27, Chapter 

6, MCA). There are hundreds of other examples. 

Plainly, the Legislature is fully authorized to 

determine the rights and remedies for injury or damage to 

person, property or character, and that authority has been 

fully backed by this Court. The bald assertion otherwise 

contained in the Statement of Purpose in CI-30 is pointedly 

and palpably false. 

In the same light, the issue as presented to the voters 

on the ballot in the Statements of Implication is equally 

deceitful. Thus the voter is told: 

[ ] FOR amending the Montana Constitution to 

authorize the Legislature to determine the 

rights and remedies for injury or damage to 

person, property, or character. 

[ 1 AGAINST amending the Montana Constitution to 

authorize the Legislature to determine the 

rights and remedies for injury or damage to 

person, property, or character. 

No more slick or cunning masking of the true intent of 

CI-30 could be devised than what is presented to the voter 

here to vote "FOR" or "AGAINST." What voter would not be 

"for" giving the Legislature such authority? What kind of 

voter would be "against" giving the Legislature such 

authority? The designers of the Initiative have cleverly 

disguised the derogatory effect of the Amendment by masking 

the Statements of Implication in seemingly innocent words and 

phrases. The Statements of Implication are fakery of the 

worst kind. 

FALSITY BY SILENCE 

False as the Statement of Purpose and the Statements of 

Implication are in what they expressly state, they are 

equally false in what they omit to tell the voter or the 

petition signer about the effect of the Initiative. 
The statements do not tell the voter that passage of the 

Initiative will take away every person's right to a speedy 

remedy for every injury of person, property, or character. 

The word "every" is deleted in the Initiative ' s § 16 (1) . The 

word "every" in that context has been a part of our State's 

Constitution since 1889. See Art. 111, 6, 1889 Montana 

Constitution. 

The statements do not tell the voter that their right of 

redress for injury will no longer be a full right. The words 

"this full" describing legal redress were del-eted in 5 16 (2) 

of the Initiative. 

Perhaps worst of all, the statements do not tell the 

voter that all judicial power to review and construe the 

validity of actions taken by the Legislature under the 

Initiative is taken away. The Legislature will become the 

sole judge of the legality of its actions under the 

Initiative. It should be clear that such a drastic 

transference of the judicial power from the courts to the 

Legislature should be a subject of advice to the voter in the 

Statement of Purpose and in the Statements of Implication, 

and not hidden away in the arcane provisions of the 

Initiative. 

Finally, the statements do not advise the voter that the 

authority given the Legislature if the Initiative passes is 

not merely limited to "tort reform. " Every right to remedy, 

of every kind and nature, will be locked away from judicial 

review whenever the Legislature acts under the Initiative. 

It was the purpose of the constitutional delegates in 

constructing the 1972 Montana Constitution to open up the 

initiative process for the people. They provided in Art. 

111, S 4 that the people may enact laws by initiative. They 
further provided in Art. XIV, S 9, that the Constitution 

itself can be amended by initiative. With respect to 

initiatives which propose to enact laws, the Sta.te 

Constitution provides that the sufficiency of the initiative 

petition shall not be questioned after the election is held. 

Art. 111 4 3 No such provision appears with respect to 

initiatives which would amend the Constitution. It may he 

fortunate for the people of this state that the sufficiency 

of the petitions for this Constitutional Initiative may be 

questioned after the election. Otherwise the high purpose of 

the constitutional delegates to preserve in the people the 

power to define their constitutional rights could be 

subverted by petitions circulated with dubious purposes and 

masked intentions. 

In fleshing out the initiative rights provid.ed by the 

new Constitution, the Legislature sought to prevent what is 

happening here with CI-30. It provided in S 13-27-312(4), 

MCA, that: 

The Statement of Purpose and the Statements of 

Implication must express the true and impartial 

explanation of the proposed ballot issue in plain, 

easily understood language and may not be arguments 

or written so it could create a prejudice for or 

against the measure. 

The Statement of Purpose and the Statements of 

Implication, as they appeared on the petitions, and as they 

now will appear on the ballot are not true; they are not 

impartial; they are argumentative, and written so as to 

create a prejudice for the measure. 

Before the Order of the majority of this Court in this 

case, we have not hesitated to exercise our power to protect 

the people in ballot issues. In Sawyer Stores, Inc. v. 

Mit~hel.1.~ et al. (1936), 103 Mont. 148, 62 P.2d 342, this 
Court set out language which is applicable today to 

statements of implication: 

"Description" in these circumstances signifies a 

fair portrayal of the chief features of the 

proposed law in words of plain meaning so that it 

could be understood by the persons entitled to 

vote. It must be plain enough to convey an 

intangible idea of the scope and import of the 

proposed law. It ought not to be clouded by undue 

detail, nor yet so abbreviated as not to be readily 

comprehensible. It ought to be free from any 

misleading tendency, whether of amplification, of 

omission, or of fallacy; it must contain no 

partisan coloring. It must in every particular be 

fair to the voter to the end that intelligent 

enlightened judgment may be exercised by the 

ordinary person in deciding how to mark the ballot. 

If this Court applied the rule of Sawyer to the 

Statement of Purpose and the Statements of Implication in 

this case, they could not. stand. 

In Sawyer, we pinpointed the dilemma of the uninformed 

voter facing such a ballot issue: 

The majority of qualified electors are so much 

interested in managing their own affairs that they 

have no time to carefully consider measures 

affecting the general public. A great number of 

voters undoubtedly have a superficial knowledge of 

proposed laws to be voted upon, which is derived 

from newspaper comments or from conversations with 

their associates. We think the assertion may be 

safely ventured that it is only the few persons who 

earnestly favor or zealously oppose the passage of 

a proposed law, initiated by petition, who have 

attentively studied its contents and know how it 

will probably effect their private interests. The 

greater number of voters do not possess this 

information and usually derive their knowledge of 

the contents of a proposed law from an inspection 

of the title thereof, which is sometimes secured 

only from the very meager details afforded by a 

ballot which is examined in an election booth 

preparatory to exercising the right of suffrage. 

If the foregoing quotation be true (as we think it is) all 

the more reasons exists for a compliance with the provisions 

of our statutes in relation to the descriptive manner which 

is required to be placed on the ballot by which a proposed 

measure is submitted. 
It was the evident thought of the Legislature, in 

enacting $ 13-27-202, MCA, requiring the submission of a 

sample of the proposed measure and of Statements of Purpose 

and Statements of Implication to the Legislative Council, the 

Secretary of State, and the Attorney General before petitions 

are circulated, that such officials would protect the people 

from misleading and deceitful submissions by initiative. In 

defense of the public officials in this case, it should be 

recognized that the presentation of a sample petition by the 

proponents is made - ex parte, and, as we noted in Sawyer, it 

is only the few persons who earnestly favor or zealously 

oppose the passage of a proposed law initiated by petition 

who attentively study its contents and know how it probably 

will affect their interests. Whatever the cause, and however 

they slipped through, the statements here do not measure up 

to the requirements of truth and impartiality in 5 

13-27-312 (4), MCA. 

Faced with the same situation in Sawyer, supra, this 

Court had no patience with the contention that laches 

prevented action to remove the ballot from the election. 

This Court said: 

Defendants contend that plaintiff is estopped to 

process this action by reason of laches. For 

present purposes, we will consider as true each of 

the allegations of defendants' answer in relation 

to this phase of the matter. Conceding that 

plaintiff did not act herein as expeditiously as it 

might have done, yet we are of the opinion that the 

action should not be dismissed because of such 

failure on the part of the plaintiff. If this 

proceeding affected merely the private rights of 

the plaintiff, then doubtless the plea of laches 

would be good. This Court has jurisdiction, as 

noted above, because of the public interest which 

attaches here. We are of the opinion that the 

liberties of the people of this State should not be 

jeopardized merely because the plaintiff has not 

acted with the greatest degree of celerity; and 

therefore such plea is not sustained. 
103 Mont. 181, 62 P.2d 357. 

THE INITIATIVE IS IMPERMISSIBLY MULTIFARIOUS 

Art. XIV, § 11, 1972 Montana Constitution provides that 

"if more than one amendment [to the Constitution] is 

submitted at the same election, each shall be so prepared and 

distinguished that it can be voted upon separately." The 

section applies to ballot measures proposed by the electorate 

through the initiative process as well as through those 

proposed by legislative enactment. State ex rel. Steen v. 

Murray (1964), 144 Mont. 61, 394 P.2d 761. 

CI-30 combines six disparate amendments to the 

Constitution. In addition, the amendatory effects of CI-30 

are not contained in either the Statement of Purpose or the 

Sta.tements of Implication. 

1. By deleting the word "every" in the first sentence 

of Art. 11, S 16, CI-30 removes the constitutional protection 

for a speedy trial and right of redress from any injury to 

person, property or character. 

2. By removing the words "this full" from $ 16 (2), the 

Initiative removes from constitutional protection the right 

of persons to a complete remedy in the courts for the redress 

of wrongs. 

3. By removing the words "every," and the words "this 

full" from § 16, the Initiative removes rights and. remedies, 

under equal protection standards, from strict scrutiny by the 

courts. 

4. By removing the words "every" and "this full" from § 

16, the Initiative, in 5 16(3), eliminates the power of any 

state court from construing 5 16 in a manner which would 

limit the power of the Legislature from adopting any mode or 

right of remedy it might seek to provide. 
5. Section 16(3), under the Initiative vests in the 

legislative branch the sole authority as to the extent of 

individual rights and remedies, excluding the right of access 

to the courts. 

6. CI-30 adds to existing Art. 11, 5 16, of the 

Constitution a limitation on the authority of the Legislature 

to place d.ollar limits on compensatory damages by requiring 

the approval of such enactments by a two-thirds vote of each 

house of the Legislature. 

The multifariousness of the Initiative is easy to 

demonstrate. A voter might wish to preserve the right of 

access to the courts for every wrong, but to authorize the 

Legislature to limit the remedies so as not to give "full 

redress; or the voter might agree to remove the words "every" 

and "full" from S 16, but to preserve the rights of the 

courts to examine the validity of legislative adoptions under 

6 A voter might favor a two-thirds vote of each house of 

the Legislature for limits on compensatory damages, but not 

the removal of the right of speedy access for every injury, 

or for full redress. 

By combining all these subjects in a single initiative, 

the will of the voter is defeated. We condemned such 

proposals in Sawyer Stores, Inc. V. Mitchell (1936) 103 

Mont. 148, 62 P.2d 342 stating: 

. . . a submission is void where two propositions 

have been submitted so as to have one expression of 

the voter answer both propositions, and this for 

the reason that voters might thereby be induced to 

vote for both propositions who would not have done 

so if the question had been submitted singly. As 

the voter in this instance might have been against 

the adoption of the initiated bill, but desirous of 

locating the capital in event the bill carried, the 

question should have been separately submitted to 

him that he might so express his will. This was 

the effect of the holding the court in Lozier v. 

Alexander Drug Company, supra, where the Court 
said: No opportunity was given the elector 

separately to express his will by his vote upon the 

question of the adoption or rejection of said 

provision as proposed . . .I' 

103 Mont. 173, 62 P.2d 354. 

THE TRUE PURPOSE OF THE INITIATIVE 

In White v. State of Montana (Mont. 1983), 661 P.2d 272, 

40 St.Rep.. 507, 509, 510, this Court held that the language 

of present Art. 11, 5 16 guaranties everyone "a fundamental 

right" to bring a civil action in a court of law. 

In Pfost v. State (Mont. 19851, 713 P.2d 495, 42 St-Rep. 

1957, 1966, we held that the words "full legal redress" in 

Art. 11, § 16, protected as a "fundamental right, the right 

of persons to be fully compensated for every injury." This 

holding necessitated the application of the "strict scrutiny" 

test when legislative enactments are examined in the light of 

equal protection standards. 

The purpose of CI-30 is to remove the status of 

fundamental right in actions for every injury of person, 

property or character, and the equally fundamental right to 

full redress for such injury. The further objective of the 

Initiative is to remove any such enactments of the 

Legislature under the proposed Art. 11, S 16, from judicial 

review. 

The true purpose of the Initiative, is as we said, 

masked from the voter. 

In advertising, and in statements to the press, the 

proponents of CI-30 are advancing its cause under the banner 

of "tort reform.'' A voter might well wish for "tort reform," 

and yet not realize that the proposed amendment would 

authorize the Legislature to abolish, limit or modify every 

possible right of recovery or remedy without judicial review 
under the new 5 16. If adopted, CI-30 will apply not only tc 

remedies for tort, but to contract remedies, specific 

performance, or any other right or remedy that the read.er 

might name. 

In exchange for a short term liability insurance crisis, 

Initiative 30 will substitute a long-term submission to the 

unbridled will of the Legislature. Any student of the 

long-time history of the Montana Legislature will recognize 

the folly of that direction. 

THE MAJORITY MAY BE BOXED FROM FURTHER CONSIDERATION OF 

INITIATIVE 30's DEFECTS 

In another case before this Court concerning a 

constitutional initiative to be submitted to the voters at 

the general election of November 4, 1986, (State of Montana 

ex rel. Montana School Board Association, et al. v. Jim 

Waltermire and Friends of the Constitution, Inc., Cause No. 

86-411, decided October 7, 1986) two of the Justices here 

dissenting authorized the submission of CI-27 to the voters 

although they recognized possible constitutional defects in 

the Initiative. District Judge Gary did not participate in 

that decision. 

CI-27 presented a different aspect from that presented 

by CI-30. CI-27 provided that its effective date would be 

July 1, 1987. Thus there is time, if that Initiative passes, 

for action to be taken to remedy the defects if such defects 

do exist. In this case, however, involving CI-30, 5 2 of the 

Initiative provides that the effective date shall be 

immediately on the approval of the electorate. Thus if the 

voters approve, CI-30 will take effect on November 4, 1986, 

and be effective from that date. 
By voting to allow CI-30 to go to the voters, the 

majority in this case may have effectively prevented 

themselves from further consideration of the constitutional 

issues therein involved. If the provisions of CI-30 become a 

part of the Constitution, how can it later be said that they 

are unconstitutional? 

As we indicated earlier in this Dissent, the question of 

the sufficiency of the petitions on which constitutional 

CI-30 is based is still open to question. If that be the 

reason that the majority permitted CI-30 to go to the voters, 

with the thought that such sufficiency could be later 

questioned, well and good. Such purpose, however, was not 

expressed to the dissenters before the entry of the majority 

Order. 

By making CI-3 0 effective immediately upon its approval 

by the electorate, a serious roadblock exists to any further 

examination of the provisions of CI-30 if it is successful, 

and its constitutionality is questioned. In the opinion of 

the dissenters, the d.elay of the relators (it was a minimal 

delay) in getting the issues to this Court is not a 

sufficient reason for this Court not to exercise its right 

and prerogative, and indeed, its duty, to protect the 

electors of this State from false and misleading 

manipulations of the initiative process. 

We affirm our Dissent to the majority Order in this 

cause of October 7, 1986. 

' Justice 1 / 

We Concur: