No. DA 06-0634 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 277

MONTANANS FOR JUSTICE: VOTE NO ON CI-98; NOT IN MONTANA: CITIZENS AGAINST CI-97; AND PROPERTY OWNERS AGAINST I-154, Political Ballot Committees, Plaintiffs and Respondents,

v. STATE OF MONTANA, by and through MIKE MCGRATH, in his capacity as the Attorney General; and BRAD JOHNSON, in his capacity as Secretary of State, Defendants and Respondents, MONTANANS IN ACTION, a Montana Corporation; CITIZEN S RIGHT TO RECALL MONTANA; PROTECT OUR HOMES MONTANA; STOP OVER SPENDING MONTANA, Political Ballot Committees, and TREVIS BUTCHER, Defendants and Appellants, and KENDALL COX, ERVIN J. HANKS, and ROBERT J. COOPER, Individually, Intervenors.

APPEAL FROM: The District Court of the Eighth Judici al District, In and For the County of Cascade, Cause No. CDV 06-1162 (d) Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD: For Defendants and Appellants: Christopher John Gallus, Atto rney at Law, Helena, MontanaFor Intervenors: Patrick R. Watt, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana For Plaintiffs and Respondents: Peter Michael Meloy and Robin A. Meguire, Meloy Trieweiler, Helena, Montana For Defendants and Respondents: Hon. Mike McGrath, Attorney General, Anthony Johnstone, Assistant Attorney General, Pamela D. Bucy, Assistant Attorney General, Janice Doggett, Lega l Counsel, Helena, Montana
Submitted on Briefs: October 5, 2006

Decided: October 26, 2006 Filed:

__________________________________________ Clerk

2Justice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 Plaintiffs Montanans For Justice: Vote No On CI-98, Not In Montana: Citizens Against CI-97, and Property Owners Against I- 154 (collectively “Opp onents”) comprise three political ballot committees who brought suit against th e three Defendant political ballot committees: Citizens Right To Recall Mo ntana, Protect Our Homes Montana, and Stop Over Spending Montana. Opponents also sued Trevis Butcher, the treasurer of the Defendant political ballot commi ttees, and Montanans in Actio n, a Montana corporation for which Butcher is exec utive director. Defendant political ballot committees, Montanans in Action, and Trevis Butcher will be referred to collectively as “Proponents.” Additionally, Opponents sued the State of Montana through Attorney General Mike McGrath and Secretary of State Brad Johnson (hereinafter “the State”). ¶2 Opponents brought this action in the Mont ana Eighth Judicial District Court, Cascade County, alleging that Proponents, in their atte mpt to get two constitutional initiatives and one statutory initiative on the ballot for November 2006, engaged in signature gathering practices that violated applicable state law. After an expedited hearing, the District Court held that the signature gathering process was permeated by fraud and procedural non-complia nce. The court invalidated the signatures obtained by specific signature gatherers, and invalidated th e Secretary of State’s certifications of CI97, CI-98, and I-154. Propon ents appeal. We affirm.

3ISSUES ¶3 Proponents raise three issu es on appeal. A restatement of those issues is: ¶4 1. Was Opponents’ claim barred by laches? ¶5 2. Did the District Court violate Pr oponents’ due process rights when it expedited the hearing and deni ed more time for discovery? ¶6 3. Did the District Court err when it de termined that the signature gathering process was permeated by a pervasive and general pattern and practice of fraud and procedural non-compliance? FACTUAL AND PROCED URAL BACKGROUND ¶7 This case involves an attempt by Proponents to pl ace two constitutional initiatives and one statutory initiative on the November 2006 ballot. CI-97 is a proposed constitutional initiative imposing limits on the spending and taxation authority of the State of Montana. CI-98 is a proposed constitutional initiative revising the process for removing judges and justices from office. I- 154 is a proposed stat utory initiative revising the legal definition of a gover nment “taking” as it relates to property ownership and eminent domain. ¶8 Proponent committees were fo rmed for the purpose of pr omoting these initiatives, while Opponent committees were formed once the promotion began, in order to oppose them. ¶9 Montana citizens have the constitutional right to enact laws by initiative. Mont. Const. art. III, § 4. The Legislature has esta blished specific proce dural requirements to safeguard the integrity and fairness of the initia tive process. See §§ 13-27-101 through

4-504, MCA. One such requirement is that pr oponents of an initiativ e, whether statutory or constitutional, must gather a specific perc entage of voter signatures to qualify their initiative for the ballot. Sections 13-27-204 and -207 1 , MCA. Currently, under these statutes, to qualify a statutory initiative, 22, 308 signatures from 34 legislative districts must be gathered. To qua lify a constitutional initiative for the ballot, a petitioner must gather 44,615 signatures from 40 legislative districts. ¶10 A “signature gatherer” is defined as “a n individual who collects signatures on a petition for the purpose of an initiative, a referendum, or the calling of a constitutional convention.” Section 13-27-111(4), MCA (as am ended, 2003). Such signature gatherers must submit a standard form affidavit attesting that: (1) he or she “gathered or assisted in gathering” the signatures on the petition; and (2) he or she believes the signatures on the petition are those of genuine Montana voters living at th e addresses entered by the petition signer; and that “the signers knew th e contents of the pe tition before signing the petition.” 2 Section 13-27-302, MCA. ¶11 Proponents began collecting signatures thro ughout the state of Montana in March 2006 and collected them until June 23, 2006, the date on which all gathered signatures had to be submitted to county election administrators for certification. Proponents utilized some Montana citizens to collect signatures but relie d primarily on paid out-of-

1 Section 13-27-207, MCA (2005), was revised by federal district court order in Montana Public Interest Research Group v. Johnson, 361 F.Supp.2d 1222 (Mont. 2005), to require that 10% of the signatures be gathered from 40 legislative distri cts rather than half of the counties. 2 While we conclude later in this Opinion th at some persons hired by Proponents to collect signatures do not satisfy the statutory definiti on of “signature gatherer,” we use the term “signature gatherer” throughout this Opinion to de note those persons who meet this definition as well as those who purport to meet it.

5state signature gatherers to obt ain the overwhelming majority of the signatures submitted. The uncontradicted evidence established that Proponents paid over $633,000.00 to outof-state signature gatherers who collected signa tures for these three in itiatives. Individual signature gatherers were paid between fifty-cents and $2.50 per signature per initiative. ¶12 Proponents submitted their signed petitions to the county election administrators, who in turn certified them and submitted them to the Secret ary of State’s office. The Secretary of State ultimately certified 47,905 signatures for CI-97, 49,956 signatures for CI-98, and 27,748 signat ures for I-154. Because each in itiative garnered more than the required number of signatures (see ¶ 9), th ese ballot initiatives were certified to the Governor on or around July 21, 2006. ¶13 On August 16, 2006, Opponents filed thei r Complaint alleging that Proponents’ signature gatherers violated the statutory re quirements governing ballot issue petitions by obtaining signatures in a deceptive manner and by falsely swearing to the contents on the signature gatherers’ form affidavits. On Au gust 24, 2006, the Secret ary of State’s office certified ballots containing all three ballot initiatives back to the county election administrators for preparation and printing of ballots for the elections. Also on August 24, Opponents moved for an ex pedited hearing on their Compla int. On Augu st 28, 2006, the District Court granted the motion to expe dite, and set the hearing for September 8, 2006. In this Order, the cour t also instructed Opponents to properly serve Proponents with the Complaint. The Proponents were served with the Comp laint that same day. 3

3 The record does not reflect the reason that Proponents were not served earlier.

6¶14 The State accepted service of the Complain t on August 17, 2006. It filed its Answer to the Comp laint on August 30 , 2006, but took no positi on as to the truth of the allegations raised by the Oppone nts. The case was assigned to the Honorable Kenneth R. Neill of the Montana Eighth Judicial District . Pursuant to notice, Judge Neill held a conference on the record on September 5, 2006, which c ounsel for all parties attended either in person or by telephone. ¶15 During the conference, the court and the parties settled upon the date and time for perpetuation depositions of three of Opponents’ witnesses. Also, the court inquired whether any of the parties had a problem with the scheduled hearing date. Proponents’ attorney stated, “We do have some problems, not so much with the date, although we would like to see it moved so that we would have more time for some discovery.” However, due to the District Court’s schedule and the urgency to reso lve this case at the earliest date before the November election, the District Court denied Proponents’ suggestion that the hearing be moved. The court concluded its conference by requesting that the parties submit proposed findings of fact and conclusions of law. Opponents submitted both a pre-hearing brief and their proposed findings and conclusions on September 8, 2006. Proponents declined to submit either. Moreover, Proponents did not file an Answer to Op ponents’ Complaint, no r did they file any pre-trial motions for discovery or extension of time. ¶16 On September 7, 2006, the day before th e scheduled hearing, counsel for the Proponents filed a one-sentence motion for substitution of judge. As a result, Judge Neill

7requested that Honorable Dirk Sandefur assu me jurisdiction. Judge Sandefur accepted jurisdiction on September 8, 2006. ¶17 The case proceeded to trial on September 8, 2006, before Judge Sandefur, sitting without a jury. Before trial began, Inte rvenors Cox, Hanks and Cooper appeared by counsel and requested leave to intervene in the proceedings . Their motion was granted without objection. Trial then commenced. Opponents called th ree witnesses to testify in person. They also presented three perpetua tion depositions, as well as excerpts from the testimony of a signature gatherer given at a hearing before the Oklahoma Supreme Court. The State called two witnesses, and two of the Intervenors tes tified on their own behalf. The Proponents called one witne ss, Trevis Butcher. At the close of the one-day trial, Judge Sandefur took the matter under advise ment. On September 13, 2006, the court issued its Findings of Fact, Conclusions of Law, and Order Invalida ting Certification of CI-97, CI-98, and I-154. Propone nts filed a timely appeal. ¶18 We note that while Intervenors partic ipated in the hearing and co-signed Appellants’/Proponents’ Brief file d with this Court, they did not file a notice of appeal. The only such notice was filed by Proponents. M. R. App. P. 4(b), provides that if two or more parties desire to appeal from a district court judgment, they may either file a joint notice of appeal, or may join together after f iling separate timely notices of appeal. As Intervenors did neither, they ar e not parties to this appeal. STANDARD OF REVIEW ¶19 Proponents argue that the District C ourt’s findings are not supported by the evidence and that the court inco rrectly interpreted and applied the applicable law. We

8review a district court’s findings of fact to determine whether they are clearly erroneous. A finding is clearly erroneous if it is not su pported by substantial ev idence, if the court misapprehended the effect of th e evidence, or if our review of the record convinces us that the court made a mistake. Petitioners I-549 v. Missoula Irrigation , 2005 MT 100, ¶ 8, 326 Mont. 527, ¶ 8, 111 P.3d 664, ¶ 8 (internal citations omitted). ¶20 We review a district court’s conclusi ons of law to determine whether its interpretation of the law is correct. Petitioners I-549 , ¶ 9. DISCUSSION
ISSUE ONE ¶21 Was Opponents’ claim barred by laches? ¶22 The first issue before us is whether th e Opponents’ claim was barred by laches. Proponents maintain that Opponents knew they would be challenging the initiative signature gathering process in the weeks before they filed suit, but negligently delayed asserting their rights until August 16, 2006. Th ey claim that the doctrine of laches should be applied so as to bar Opponents’ challenge to the ballot certification. ¶23 Laches is an equitable doctr ine by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when the delay or negligence has prejudi ced the party against whom relief is sought. Black’s Law Dictionary 879 (Bryan A. Garner ed., 7 th ed., West 1999). See also Cole v. State ex rel.
Brown , 2002 MT 32, ¶ 24, 308 Mont. 265, ¶ 24, 42 P.3d 760, ¶ 24. ¶24 Proponents’ laches’ argument is flawed for two reasons. First, laches is an affirmative defense. As such, under M. R. Civ. P. 8:(c), Proponents were required to

9raise it in their Answer to the Opponents’ Complaint in District Court. Rule 8(c) states in relevant part, “In pleading to a preceding pleading, a party sha ll set forth affirmatively . . . laches . . . and any other matter constituting an avoidance or affirmative defense.” However, Proponents did not file an Answer to the Opponents’ Complaint. We have held previously that a defense of laches, not raised in the answer, cannot be raised for the first time on appeal. Deist v. Wachholz , 208 Mont. 207, 227, 678 P.2d 188, 198 (1984). We note further that at no time during the Dist rict Court proceedings did Proponents argue that Opponents’ claim was barred by laches. ¶25 Even if Proponents’ laches argument wa s not procedurally barred, the doctrine simply does not apply here. The doctrine of laches applies where there has been such delay as to render enforcement of the asserted right inequitable. In re Marriage of Deist , 2003 MT 263, ¶ 17, 317 Mont. 427, ¶ 17, 77 P.3d 525, ¶ 17. In Castillo v. Franks , 213 Mont. 232, 690 P.2d 425 (1984), we said that “[t]he purpose of laches is to discourage stale demands by the court refusing to interfe re where there has b een gross laches in prosecuting rights, or where long acquiesce nce in assertion of adverse rights has occurred.” Castillo , 213 Mont. at 241, 690 P.2d at 42 9. Thus, the doctrine is aimed at foreclosing “stale” claims, or those asserted after a protracted peri od of seeming assent. Accord Cole, ¶ 24 (Plaintiffs’ claim, brought nine y ears after the term limits initiative, CI-64, became effective and presumptively valid, was barre d by laches.). Here, it is undisputed that Opponents brought their clai m within thirty (30) days after the ballot issues were certified, as required by § 3-5-302( 6), MCA. In light of the fact that they complied with the statute’s narrow 30-day win dow for filing suit, it cannot reasonably be

10argued that Opponents waited until their claims had grown stale before asserting them. Therefore, we conclude that Opponents’ cl aims are not barred by the equitable doctrine of laches.
ISSUE TWO ¶26 Did the District Court violate Proponent s’ due process rights when it expedited the hearing and denied more time for discovery? ¶27 Proponents contend the District Court viol ated their due process rights because the court denied Proponents’ “moti on to delay trial to allow fo r discovery.” As a result, Proponents claim they were “unable to conduct meaningful investigation or any discovery and were not on notice of many of the claims and evidence presented at the hearing.” This, they argue, subj ected them to “trial by ambush.” ¶28 Opponents invite us to ig nore the due process claim be cause Proponents raised it for the first time on appeal. We agree th e record contains neither a motion for a continuance, nor a memorandum or affidav it(s) articulating what discovery Proponents would have conducted had the court allowed more time . Rather, Proponents premise their contention that they preserved this cl aim for appeal purposes solely on counsel’s response to the District Court’s inquiry during the September 5, 2006 scheduling conference about the date set for trial. In response to the court’s question, Proponents commented, “We do have some problems, not so much with the date , although we would like to see it moved so that we would have more time for some disc overy.” A protracted discussion followed regarding the schedul ing of three perpetuation depositions. Opponents scheduled the depositions at a ti me Proponents’ counsel requested, but then

11during the scheduling conference, Proponents’ counsel said he “prefer[red] certainly another time.” Notwithstanding Pr oponents’ failure to move to continue the hearing date, the court considered the comments regarding postponement, but declined to accept them, saying, “I think the time constraints are such th at we need to have this on [September 8, 2006.]” Because the District Court arguably construed Pr oponents’ comments disfavoring the September 8, 2006 trial date as a request to postpone the hearing, we will address the merits of Propon ents’ due process claim. ¶29 We therefore turn to the question of wh ether the court’s denial of more time impinged Proponents’ due process rights. The Fourteenth Ame ndment to the United States Constitution and the Montana Constituti on at Article II, § 17, provide that no person shall be deprived of life, liberty, or property without due process of law. The guarantee of due process has both a proc edural and a substantive component. Elgin v. Board of County Com’rs , 2002 MT 115, ¶ 14, 310 Mont. 1, ¶ 14, 48 P.3d 39, ¶ 14. Generally, substantive due process analysis applies when state action is alleged to unreasonably restrict an indivi dual’s constitutional rights. See Elgin , 2002 MT 115, 310 Mont. 1, 48 P.3d 39, and Newville v. State Dept. of Family Services , 267 Mont. 237, 883 P.2d 793 (1994). Here, Proponents contend the District Court’s denial of their motion to delay trial left them with inadequate time to prepare their case. Proponents’ complaint is procedural in nature, and therefore c onstitutes a procedural due process claim. ¶30 Under both federal and state jurisprudenc e the requirements for procedural due process are (1) notice, and (2) opportunity for a hearing appropriate to the nature of the

case. See Jones v. Flowers , ___ U.S. ___, 126 S. Ct. 1708, 1712, and Matter of Klos , 284

12Mont. 197, 205, 943 P.2d 1277, 1281, both citing Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57 (1950). As such, “t he process due in any given case varies according to the factual circumstances of the ca se, the nature of the interests at stake and the risk of making an erroneous decision.” McDermott v. McDonald , 2001 MT 89, ¶ 10, 305 Mont. 166, ¶ 10, 24 P.3d 200, ¶ 10 (citation omitted). Otherwise stated, due process requirements of notice and a me aningful hearing are “flexible” and are adapted by the courts to meet the procedural protections demanded by the specific situation. Geil v. Missoula Irr. Dist. , 2002 MT 269, ¶ 58, 312 Mont. 320, ¶ 58, 59 P.3d 398, ¶ 58 (citation omitted). ¶31 Both Montana law and the truncated timeline available for resolving preelection initiative challenges require relatively rapid ac tion by the parties and the courts between the time an initiative qualifies for the ballot— typically in mid-July—and the date on which voters cast ballots in the first week of November. Allegations of deceptive election practices must therefore be raised, proven, and if necessary remedied, within a narrow window of time. A person or group challenging the validity of a qualified ballot initiative must file suit w ithin 30 days of the date the initiative is certified. Section 3-5- 302(6), MCA. Thereafter, “[a] preelection challenge to the procedure by which an initiative or referendum qualified fo r the ballot . . . shall be give n priority by the courts.” Mont. Const. art. IV, § 7(2). Moreover, “[ t]he sufficiency of th e initiative petition shall not be questioned after the election is held.” Mont. Const. art. III, § 4(3). In sum, the law requires that challenges to an initiative be ra ised, addressed, and resolved in accelerated

13fashion. Against this backdrop, we cons ider Proponents’ objec tions concerning notice and the expedited hearing. Notice ¶32 Proponents’ sole claim regarding the Dist rict Court’s failure to meet the due process notice requirement centers upon thei r contention that they had “no notice” Opponents would offer evidence regarding “ fraudulent addresses by over 40 signature gatherers.” We cannot agree. Opponents’ Complaint, in a section entitled “Defendants Engaged in a Statewide Pattern of Deceptive Practices in the Gathering of Signatures,” clearly alleged that “professional signature gatherers were encouraged to lie and generally engage in a pattern of devi ous and deceptive practices, including routinely providing false addresses on affidavits . . . .” (Emphasis added .) However, Proponents contend that without the additional benefit of a pre-trial order and full discovery they “were primed for a surprise a ttack” when Opponents contested the validity of “over 40 of the signature gatherers’ addresses as a basis to prove pervasive fraud.” ¶33 We conclude that Opponents’ Compla int was sufficiently specific to put Proponents on notice that Opponents conteste d the validity of addresses listed by paid signature gatherers on affidavits filed with county election officials. Further, Proponents’ witness, Butcher, acknowledged under oath that the Secretary of State’s Elections Specialist phoned him during the signature ga thering cycle, occurring between March and July, to notify Butcher of comp laints received related to ad dress falsification on paid signature gatherers’ affidavits. Therefore, Proponents were aware that the addresses of the signature gatherers would be an i ssue in advance of the hearing.

14¶34 It is most significant, howe ver, that these signature gath erers were contacted, hired and paid by Proponents. Thus, any informati on as to their true addresses was within the exclusive knowledge of Proponents, and not Opponents. Proponents do not explain how, under these circumstances, discovery from Op ponents regarding signature gatherers’ addresses would have been of any assistance whatsoever. We therefore must reject the contention that Proponents were prejudiced by the denial of a longer period of notice or discovery regarding the addresses of their own paid signature gatherers. ¶35 Proponents raise no other contentions regard ing notice. We ther efore turn to the bulk of Proponents’ argument in which they protest the cond ensed timeframe for pre-trial discovery as an unconstitutiona l restriction on their op portunity for meaningful participation in the September 8, 2006 hearing. Hearing ¶36 Proponents posit the District Court denied them a mean ingful hearing because the court compelled them to proceed without adequate time for discovery. Proponents contend the abridged timeframe allocated fo r trial preparation left them without any opportunity to conduct discovery. We disagree. The re cord shows that Proponents failed to utilize the time allocated by the court to conduct whatever discov ery time allowed, or to avail themselves of the proced ural remedies available to them. ¶37 Proponents rely on Wilson v. Dept. of Public Service Reg. , for the proposition that a “meaningful hearing can not [ sic ] be had when a party is ma de to proceed without the ability to discover the ev idence and allegation to be advanced against them.” 260 Mont. 167, 858 P.2d 368 (1993). We note at the outset that Wilson was an appeal from a Public

15Service Commission (PSC) proceeding and not an appeal regarding a ballot initiative. Therefore, there was no legal or circumst antial requirement for expediency in Wilson —a distinction of significant conse quence. That said, we did conclude that appellants in Wilson were denied discovery in violation of their due proce ss rights. 260 Mont. at 172, 858 P.2d at 371. However, denial of th e Wilsons’ discovery motion was not the sole basis for our determination. Rather, we re lied on cumulative circumstances to conclude that fundamental fairness and due process of law were denied. Specifically, the decision appealed from contained “no specification of the or ders, rules or statutes which the Wilsons [were] alleged to have violated[,] ” the Wilsons were no t “afforded adequate, timely notice of the persons who [would] tes tify” nor did they know the “nature of the evidence” that would be presen ted in support of the PSC’s revocation of their “valuable property right” in a transportation certificate. Wilson , 260 Mont. at 172, 858 P.2d at 371. ¶38 The circumstances underpinning the due process violation in Wilson are not present here. First, we disagree that the Dist rict Court’s decision to expedite proceedings equated to denial of a motion for discovery as occurred in Wilson . Nothing prevented Proponents from utilizing the eleven days available to them to conduct discovery. Yet, Proponents conducted no discovery. Second , the District Court’s decision from which Proponents now appeal clearly articulates whic h statutes Proponents ostensibly violated. Third, we previously determined that, un like the Wilsons, Proponents were afforded adequate notice of the allegations agains t them, and had with in their knowledge information with which to refute Opponents’ allegations of a ddress falsification. Finally, we agree with the District Court’s determin ation that as a matter of law, Proponents

16“have no political or legal righ t to vote” on the initiatives at issue here “un til Proponents have duly qualified them for the ballot in the manner provided by law, free from the taint of fraud.” Whereas it was determined Wilsons had an extant property right in their transportation certificate, here Proponents’ “r ight” to vote on the initiatives cannot, even arguably, vest as a right to “life, liber ty, or property,” subject to due process requirements, until this Court determines whether Proponents legally qualified the initiatives for the November 2006 Montana ballo t. Mont. Const. art. IV, § 7(1); § 7-5- 132(3)(c), MCA. ¶39 Regardless of Wilson ’s applicability, Proponents’ due process claim rings hollow in light of the multiple respects in which they did not avail themselves of either the time they had or their recourse to the rules of ci vil procedure. Specifically, Proponents did not answer Opponents’ Complaint, request any di scovery, move for a continuance, take any depositions, or file a pre-trial brief. Pr oponents did not attend the three depositions conducted by Oppon ents (though they were scheduled to accommodate the schedule of Proponents’ counsel), nor did they file propose d findings of facts or conclusions of law, despite the District Court’s reque st for both from the parties. At the end of the September 5, 2006 scheduling conference, Proponents acquiesced wit hout objection in the court’s proposed schedule, and indicated they wo uld not make any pr e-trial motions. ¶40 Proponents’ efforts at trial were similarly incomplete. They de clined to make an opening statement or a closing argument. Th ey opted not to cross-examine Opponents’ main witness, Jacqueline Boyle. And, most significantly, th eir attorney did not object as multiple hearsay statements damaging to Pr oponents’ case came in to evidence through

17the witnesses who testified. Under the same time constraints, Opponents conducted three depositions, filed the pre-trial brief and proposed findings of fact and conclusions of law suggested by the court, and then fully participated at trial, making appropriate arguments and objections as the rules of evidence allowed. ¶41 We conclude that any deprivation of a meaningful hearing here was more the construct of Proponents’ own failure to act th an it was a function of the District Court’s denial of more time for trial preparation. Opponents timely brought their claims. The District Court was then required by law to expedite the proceedings. Simply put, the District Court proceeded as required by law. We therefore determine that under the circumstances, Proponents received both adequate notice of the allegations against them and an opportunity to participate in a meaningful hearing.
ISSUE THREE ¶42 Did the District Court err when it determin ed that the signatur e gathering process was permeated by a pervasive and general pattern and practic e of fraud and procedural non-compliance? ¶43 The District Court conducted a one-day hearing on September 8, 2006, during which Opponents called three wi tnesses, the State called two, Intervenors called two, and Proponents called one. In addition, Oppone nts introduced three perpetuation depositions, multiple affidavits, the testimony of one signat ure gatherer given at a hearing before the Oklahoma Supreme Court, and numerous spread sheets, signature lists and calculations. Proponents introduced in to evidence three cer tification affidavits si gned by one of their signature gatherers and a fourth affidav it signed by a second signature gatherer.

18¶44 On September 13, 2006 the court issued a detailed 46-page Order setting forth its analysis and rationale. The court found th at three significant defects occurred: (1) Proponents’ out-of-state signature gatherers routinely attested th at they personally gathered or assisted in gathering signatures th at, in fact, were gath ered by other persons outside of their presence and without direct assistance from them; (2) Proponents’ out-ofstate signature gatherers used false addresse s on their certification affidavits; and (3) at least some of these same si gnature gatherers employed a deceitful “bait and switch” tactic. We review each of these conclusions below. Certification Based on th e Language “Assisted In” ¶45 The District Court found that, under the to tality of the circumstances, it was more probable than not that the out-of-state signature gatherers executed certification affidavits attesting that they personally gathered or a ssisted in gathering signatures that someone else actually gathered outside of their presence without any direct assistance from them. As further addressed below, the District Court received substantial evid ence as to the vast number of signatures attested to by several of Proponents’ paid out-of-state signature gatherers. This evidence esta blished that the signers were located in various cities and counties throughout the state and that the attesting signa ture gatherer could not have possibly been present when many persons signed their pe titions. Proponents did not rebut or refute this evidence at the hearing. ¶46 Instead, Proponents argue on appeal that to give meaning to the words “assisted in” as used in § 13-27-302, MC A, an affiant need not be present at the time the petition was signed. They also main tain that Montana law has a lax standard for signature

19gatherer certification, vis-à-vis other states, as it does not expressly re quire the gatherer to attest that the signatures were received in hi s or her presence. Compare Oregon’s statute, for example—“The circulator shall certify on each signature sheet that the individuals signed the sheet in the presence of the circulat or . . . .” Or. Rev. Stat. § 249.740(4). Relying on United Labor Committee of Mo. v. Kirkpatrick , 572 S.W.2d 449 (Mo. 1978), Proponents further contend that because the Secretary of State certified the signatures, these signatures were verified and should not be invalidated by a technical deficiency, negligence or misconduct of a third party, i.e., the signature gatherer. ¶47 Opponents counter that it is well establishe d that the signer of an affidavit must have personal knowledge of the inform ation contained in the affidavit. McDermott v. Carie, LLC , 2005 MT 293, ¶ 26, 329 Mont. 295, ¶ 26, 124 P.3d 168, ¶ 26 . They maintain that for a petition gatherer to sign the affida vit required in § 13-27-3 02, MCA, he or she must have a belief based on personal knowledge that th e petition signers knew the contents of the petition before signing it. They assert that the District Court correctly determined that the affiant ha d to be present during the si gning in order to meet this requirement. ¶48 Relevant to our analysis of this issue as well as the issues below are the definition of “signature gatherer” and the required contents of the affidavit for certifying signatures. Section 13-27-111(4), MCA (2005), defines “s ignature gatherer” as “an individual who collects signatures on a petition for the pur pose of an initiative, a referendum, or the calling of a constitutional convention.” Sect ion 13-27-302, MCA (2 005), sets forth the

20following requirements for the affi davit that must be attached to each sheet or section of signatures submitted to th e county official: I, (name of person who is the signatur e gatherer), swear that I gathered or assisted in gathering the signatures on the petition to which this affidavit is attached on the stated dates, that I believe the signatures on the petition are genuine, are the signatures of the pe rsons whose names they purport to be, and are the signatures of Montana electo rs who are registered at the address or have the telephone number following the person’s signature, and that the signers knew the contents of the petition before signing the petition.

___________________ ___________________ (date on which the first signature was gathered)

___________________ ___________________ (Signature of petition signature gatherer)

___________________ ___________________ (Address of petition signature gatherer) ¶49 Notably, these statutes were revised by th e 2003 Legislature. Prior to the 2003 revisions, § 13-27-111(4), MCA (2001), provide d that a “signature gatherer” was “an individual who collects or inte nds to collect signatu res on a petition for the purpose of an initiative, a referendum, or the calling of a constitutional convention.” Moreover, the 2001 version of § 13-27-302, MCA, read: I, (name of person who circulated this petition), swear that I circulated or assisted in circulating the petition to wh ich this affidavit is attached, that I believe the signatures on the petition are genuine, are the signatures of the persons whose names they purport to be, and are the signatures of Montana electors who are registered at the a ddress or have the telephone number following the person’s signature, and th at the signers knew the contents of the petition before signing the petition.

___________________ ___________________ (Signature of petition circulator)

___________________ ___________________ (Address of petition circulator) According to the 2003 legislative history, the comm ittee members discu ssing the thenproposed revisions indicated that the purpose of the revisions was to make the process

21“more accountable.” House Committee on Stat e Administration, 2003 Reg. Sess. (Jan. 21, 2003). ¶50 The evidence established that Proponents hired and paid up to 43 out-of-state signature gatherers. The signatures gather ed by five of these signature gatherers constituted more than half of the total signatures garnered. 4 These gatherers were Larry Shumacher, Grace Meyer, Ron Cook, Eric Rittb erg, and Marvin Ki ng. These persons were paid on a per-signature basis. Schumacher was paid $84,103.30 for gathering signatures in five Montana counties; Meyer was paid $70,170.94 fo r collecting signatures in six Montana counties; Cook received $69,21 4.78 for his signature gathering efforts in six counties; and Rittberg wa s paid $18,155.68 for unspecified co unty petition drive efforts. No evidence was presented as to the amount Proponents paid King but evidence revealed that he swore to 41,761 signatures. Additionally, it was shown that he attested to signatures gathered from at least eight Montana counties, as geographically dispersed as Glacier, Gallatin, Yellowstone and Valle y Counties. King submitted by affidavit approximately 15,000 signatu res obtained during one two-we ek period. The District Court observed that he would have had to secure approximately one signature every minute during that period to reach this total. ¶51 Given that the claimed signatures were ga thered from far-flung areas of the state, it is evident that King was not present when many of these signatures were obtained.

4 A total of 125,609 signatures was certified—47,905 for CI-97; 49,956 for CI-98; and 27,748 for I-154. Of these 125,609, at least 64,463 were obtained or attested to by Proponents’ signature gatherers, Shumacher, Meyer, Cook, Rittberg, a nd King. 25,426 of these signatures were for CI97; 22,041 for CI-98; and 16,996 for I-154.

22Proponents maintain that they obtained signatures from traveling Montanans (e.g., Bozeman residents visiting Billings signed a B illings’ petition). While it is feasible that this occurred on occasion, Proponents pro ffered no evidence to su pport this claim. Moreover, it strains cre dulity to conclude that this occu rred often enough to explain the thousands of signatures obtained from distan t towns and cities by a single signature gatherer. ¶52 To determine whether Proponents’ signature gatherers complied with the statutory requirements, we must read §§ 13-27-111 (4) and 13-27-302, MCA, together. As indicated above the “signature gatherer,” i. e., the person who collected the signatures, must swear under oath that he or she “gathere d or assisted in gathering the signatures on the petition to which this affidav it is attached on the stated dates.” It is undisputed that some of Proponents’ signature gatherers attest ed to signatures that were obtained by other persons outside of the presence of the attes ting affiant. The question is whether those certifications are lawful under the “assisted in” language of the affidavit. Proponents, of course, are advocating a broad construction of the phrase while Op ponents offer a more narrow construction. ¶53 We construe statutes as they are written. Ravalli County v. Erickson , 2004 MT 35, ¶ 11, 320 Mont. 31, ¶ 11, 85 P. 3d 772, ¶ 11. We must neith er insert what has been omitted nor omit what has been inserted. Sec tion 1-2-101, MCA. Th e term “assisted” is not defined in the statute; therefore, we look to its common dictionary meaning. Ravalli County , ¶ 13. “Assisted” is defined as: (1) to give aid or support; (2) to be present, as at a conference; (3) an act of giving aid; help. The American Heritage Dictionary of the

23English Language 109 (4th Edition, Houghton Miff lin Company 2004). We have previously recognized the term “assistant” to mean “one who stands by and aids or helps another.” State v. Ayers , 112 Mont. 120, 126, 113 P.2d 785, 788 (1941). Because the definition of both “assisted” and “assistant” could arguabl y contemplate one’s presence or absence, we must look more closely at the context of the statute and its 2003 amendments. ¶54 As indicated above, the 2003 Legislatur e changed the definition of “signature gatherer” from the individual who “collects or intends to collect” signatures to the “individual who collects” signatures. Se ction 13-27-111(4), MCA (2001 and 2003). This was done, according to the legislative history, to provide “more accountability” to the signature gathering process. See ¶ 49. Similarly, the Legislature revised the certification affidavit to require that the “si gnature gatherer” rather than the person who “circulated the petition” sign the affidavit, and that the affiant swear that he or she “gathered or assisted in gathering” as opposed to “circulated or assisted in circulating the petition.” Section 13-27- 302, MCA (2001 and 2003). Agai n, these changes reflect the Legislature’s interest in restricting rather than broadening the category of persons who could sign the affidavit. ¶55 While we acknowledge that the affidav it first requires the person who collected the signature to sign the affidavit but then ha s the affiant swear that he or she either gathered “or assisted in gathering” the signatu res, there is no internal inconsistency. Reading the amended statutes together and gi ving full effect to both, it is easy to contemplate a team of signatu re gatherers working togethe r, side-by-side, assisting one

24another in obtaining signature s, explaining the contents of the initiative or referendum, determining whether a potential signer is qualif ied, and advising the signers as to the information required. Under this simple scenar io, either signature gath erer could attest to the signatures gathered and lawfully sign the affidavit. ¶56 Additionally, the affidavit provides that the affiant may submit signatures if he or she “believes,” the “signers kne w the contents of the petition before signing the petition.” Section 13-27-302, MCA. While this language arguably imposes a lesser standard than the “personal knowledge” standa rd argued by Opponents, it does not change our analysis or our conclusion. As we determined above, a reading of both statutes together mandates the presence of the affiant at the time a signature is gathered. Additionally, affiant must still swear to the validity of the contents of the affidavit. This would requi re his or her “belief” to have a reasonable foundation. ¶57 As did the District Court, we conclude th at the revised language of both statutes contemplates something more than mere ove rsight of the process by a geographically remote affiant. As a result, we conclude that in order to lawfully swear under oath, with personal knowledge, that the affiant “gathered or assisted in gathering” signatures, and to swear that affiant believes that the signatures are genuine and the signers knew the contents of the petition before signing it, the affiant must be present at the time the petition is signed. ¶58 Again, Proponents presented no evidence to refute or rebut Opponents’ evidence that the five most prolific si gnature gatherers swore to signa tures obtained outside of their presence. The strength of Opponents’ argument is further bolstered by the sheer numbers

25of signatures submitted by these five signatu re gatherers and the physical impossibility that they could have been present at the time each of these signatures was obtained. ¶59 We conclude that the District Court di d not err when it found that Shumacher, Cook, Meyer, Rittberg, and Ki ng executed affidavits s ubmitting signatures that were gathered outside of their presence. As a re sult, they could not la wfully attest to the contents of the affidavits. ¶60 We cannot overstress our limited ro le as interpreters of the statutes. It is axiomatic that when interpreting a statute, we seek to implemen t the objectives the Legislature sought to achieve, and if the legislative in tent can be determined from the plain language of the statute, the plain language controls. City of Billings v. Gonzales , 2006 MT 24, ¶ 8, 331 Mont. 71, ¶ 8, 128 P.3d 10 14, ¶ 8 (internal citations om itted). When the legislative intent cannot be readily derived from the plain language, we review the legislative history and abide by the intenti ons reflected therein. Denial of App. For Is s. Of Beer/Wine Lic., 267 Mont. 298, 303, 883 Mont. 833, 836 (1994). If the Legi slature actually contemplated remote signature gathering, or mere “circu lation” by the affian t—without more—there would have been no reason for the 2003 statutory amendments. In sum, we must apply the law as written and amended. False or Fictitious Addresses ¶61 The District Court found that all 43 of Proponents’ out-of-sta te paid signature gatherers gave false or fictitious addresses in their certification affidavits submitted under § 13-27-302, MCA. An element of th e evidence supporting this finding was a spreadsheet prepared by one of Opponents’ witnesses which set forth the names and the

26claimed addresses of each of Pr oponents’ signature gatherers. Boyle testified that, using an on-line data search engine, she attempted to confirm each address but was unable to do so. She stated that some of the provided addr esses were hotels, retail stores or shopping centers; some were apartment complexes or personal residences at which the signature gatherer was not listed as a resident, and some addresses simply did not exist. ¶62 Additionally, the District Court relied on the testimony of on e of Proponents’ professional petition signature gatherers, Robert Colby, who testified at a hearing before the Oklahoma Supreme Court in a similar cas e. Colby stated under oath in that proceeding that it was a common practice for signa ture gatherers to use false or fictitious addresses in an effort to conceal personal information, avoid harassment, and “leave no trail.” He admitted to having used a fictiti ous address while workin g for Proponents in
Montana. ¶63 Butcher, testifying as the sole witness for Proponents, did not re fute this evidence. He did testify that he had inst ructed one of the ou t-of-state signature gatherers, Marvin King, to use Butcher’s sister’s home addre ss in Billings, though the circulator was not going to stay there. Butcher stated that King could have us ed his sister’s address as a central drop-off or pick-up lo cation during the petition drive, but presented no evidence that King ever used the address for such purposes. Moreover, evidence was presented that at one point during th e petition drive, a Billings polic e officer stopped at Butcher’s sister’s house looking for King. Butcher’s sister told him that she did not know who King was and that he was not living there.

27¶64 Proponents argue on appeal that the Dist rict Court erred in narrowly defining “address” to mean a signature gatherer’s residence as opposed to a place where the signature gatherer could be reach ed if necessary. Relying on Munson v. Bay State Dredging & Contracting Co ., 50 N.E.2d 633, 6 36 (Mass. 1943) and In re Protest of Brooks , 801 N.E.2d 514 (Ohio 2003), Proponents maintain that use of a temporary address, such as a hotel, satisfies the addr ess requirement, as does any address at which the signature gatherer can be reached or wh ere a message can be left. Proponents also argue that had they known that the 43 addresses were going to be contested, they could have verified “a great deal . . . if not all of them.” ¶65 Opponents counter that the use of fals e addresses by out-of-state signature gatherers was just one example of the decep tive behavior utilized by Proponents’ paid assistants. They mainta in that the District Court, base d on unrefuted evidence, correctly determined that the out-of-state signature gatherers attested knowingly to false addresses, i.e., addresses that were not their residences, places of business, or locations at which they could be contacted. Opponents cite Kemp v. Monroe County Bd. Of Elections , 493 N.Y.S.2d 529 (N.Y. Sup. 1985) ( overruled on other grounds by Kemp v. Monroe County Bd. of Elections , 113 A.D.2d 1019 (N.Y. App. Div. 4t h Dep’t. 1985)), fo r the proposition that incorrect addresses on election petitions should resu lt in invalidation of such petitions. ¶66 Opponents also assert, as discussed abov e, that Proponents had adequate notice that the address issue would be presented at the hearing. They maintain that as the employer of these paid out-of-state signature ga therers, Proponents s hould have been able

28to readily verify addresses and contact info rmation as well as present some of their signature gatherers as witnesses at the hearing. ¶67 To resolve this issue, we must once again read the re vised versions of §§ 13-27- 111(4) and 13-27-302, MCA, together. Unde r these statutes, the “signature gatherer” must sign the affidavit and provide his or he r address. Presumably, the purpose of the address requirement is to pr ovide a mechanism by which affiants may be contacted by county elections officials or the Secretary of State during the certification process. The term “address” is not defined in the statutes; therefore, as we have done in the past, we use its common dictionary meani ng. See ¶ 53. “Address” m eans “the place or the name of the place where a person, or ganization, or the like is lo cated or may be reached.” Dictionary.com Unabridged (v 1.0.1), Random House Unabridged Dictionary, Random House, Inc. 2006. ¶68 The District Court did not stat e in its Order that the addr ess provided by the affiant must be his or her residence. In fact, the court expressly concluded that the office address provided by one of the sign ature gatherers was acceptable. Therefore, Proponents’ contention that the District Court erroneousl y imposed a residence address requirement is incorrect. However, it does appear that the District Court reje cted as unacceptable a hotel address or the address of other temporary quarters where a gatherer may have stayed during the signature drive. Under Brooks , this was arguably error. As argued by Proponents and noted in Brooks , such a location may satisfy the address requirement, provided the signature gather er can actually be reached there directly or through a
message. Brooks , ¶ 26. The fact remain s, however, that there wa s no proof that this

29requirement of Brooks —accessibility to the gatherer at the listed address—was satisfied here. ¶69 The rules of statutory construction require th e language of a stat ute to be construed according to its plain meaning. Ravalli County , ¶ 11. Using the ordinary everyday meaning of the words in § 13-27-302, MCA, a ffiants are required to provide addresses of the places where they can be reached or cont acted. Substantial evidence was presented that affiants in this case di d not do so but rather provide d bogus or false addresses. Proponents did not refute or rebut this evidence and offere d no countering testimony. The District Court, relying on the only eviden ce presented, concluded that the affidavits completed by these 43 signatur e gatherers contained false in formation, and as a result were tainted with illegality. McDermott v. Carie, ¶ 26 (An affidavit is legally defective unless “[t]he maker [has] personal knowledge of the information contained in the statement and . . . swear[s ] to its validity.”) ¶70 While we do not conclude that the statute necessarily requires an affiant to provide a residential address, we do conclude that the purpose of the address requirement in the statute is the provision of a legitimate contact point so that when questions regarding the petitions arise, the pers on who gathered those signatures can be reached. Otherwise, the questions go unanswered, and no one—not the Coun ty, the State, or the opponents of an initiative—is able to ascertain whether there has been co mpliance with the law. ¶71 Based upon the foregoing, we conclude th at a signature gatherer must provide an address on the affidavit where he or she ca n be contacted throughout the collection and certification process.

30¶72 The right of Montanans to change our constitution by initiative is a unique right granted by Article II, Section 2 of the 1972 Montana Constitution. It is our judicial duty to preserve this right wherever possible and to dec line to interfere unle ss it appears to be absolutely essential. State ex rel. Montanans v. Waltermire , 231 Mont. 406, 412, 757 P.2d 746, 750 (1988). In this regard, it has long been esta blished that initiative petitions signed and filed in accordance with app licable law are presumptively valid. In re State Question No. 138 , 244 P. 801, 803 (Okla. 1926). Howe ver, that presump tion of validity may be rebutted and overcome by affirmativ e proof of willful fra ud or proce dural noncompliance. State Question No

. 138 , 244 P. at 804. Once evidence is presented to rebut the presumption of validity, it is incumbent upon on the party endorsing the validity of the signatures—in this case the Proponents—to come forward with evidence to rebut or counter the damaging evidence. In the case before us, Proponents offered nothing to rebut or counter the evidence presented by O pponents that the addresses provided on the affidavits were false. ¶73 Given that Proponents were in the best position to refu te Opponents’ evidence of false affidavits and bogus addr esses, and their failure to do so, the District Court did not err in accepting the unrefuted ev idence presented and finding that false or fictitious addresses were provided. Bait and Switch ¶74 Lastly, the District Court found that it was more probable than not that a significantly large percentage of the paid, out -of-state signature gath erers working for the Proponents employed a “bait and switch” ta ctic to induce people who knowingly signed

31one petition to unknowingly sign the other tw o. The District Court relied upon six affidavits and three perpetua tion depositions of petition sign ers who attested that they were personally misled by a signature gatherer into signing all thre e initiatives when they intended to sign only one. Most of these a ffiants also stated that they heard other signature gatherers misleading persons into signing all three petitions by claiming that, because the circulator had no carbon paper, the signer n eeded to sign the one petition three times. In addition to this evidence, another affiant testified that a signature gatherer had tried this tactic on her but before signi ng the other petitions she realized that they were different and she refused to sign them. Furthermore, a witness from the Secretary of State’s Office testified that his office re ceived complaints that this tactic was being used, and a witness working to oppose CI-97 also received reports that Proponents’ signature gatherers were doing this. ¶75 In contrast, two of the thre e Intervenors testified at th e hearing that they had not been subject to such a “bait and switch” tactic, nor had th ey seen signature gatherers employing such a tactic. The third Intervenor submitted an affidavit proclaiming the same. Butcher did not refute Opponents’ eviden ce; rather, he conceded that the tactic had been used, but only for a short time. ¶76 Proponents argue on appeal that the ev idence presented at the hearing was insufficient to support a findin g that use of the “b ait and switch” tactic was pervasive. They cite the testimony of the Intervenors and that of a few of Opponents’ witnesses who had “heard about” the tactic but had not pers onally observed it. The problem is they ignore the substantial hear say evidence heard by the court without objection from

32Proponents, to the effect that this tactic was in fact being widely used, and that the Secretary of State had received multiple complaints to the same effect. 5 It is axiomatic that a district court is free to consider hear say testimony if there is no objection to its admission into evidence. State v. Vandersloot , 2003 MT 179, ¶ 27, 316 Mont. 405, ¶ 27, 73 P.3d 174, ¶ 27. Thus, the court had before it far more evidence of the use of the “bait and switch” tactic than Proponents are willing to concede on appeal. ¶77 The question we must answer is whether th e court’s finding of pervasive use of the tactic is supported by substantial evidence. See ¶ 19. As we note above, Opponents presented evidence of the use of this prac tice through testimony from two witnesses, the affidavits of seven witnesses, and the perp etuation depositions of three others. They offered the testimony of Alan Miller from the Secretary of State’s office regarding the complaints that office receive d regarding the practice. Fi nally, they established through county lists of votes that an inordinately la rge percentage of voters signed not one but all three petitions. For example, 60.64% of La ke County petition signers signed all three petitions; 64.97% of Cascade si gners and 66.9% of Flathead County signe rs did the same. In response, Proponents offered no evidence, nor did they object to or attempt to discredit the evidence offere d by Opponents. ¶78 It is the province of the District Cour t to weigh the eviden ce and resolve any conflicts between the positions of the parties. It is well established that this Court will

5 It should be noted that counsel for Intervenor s did object to the admission of hearsay evidence on more than one occasion throughout the hearing; however, they are not part ies to this appeal. See ¶ 18. More importantly, because Proponents have not even attempted to argue on appeal that admission of hearsay was error, the issue ha s been waived by them in any event.

33not second-guess the district court’s determin ation regarding the st rength and weight of conflicting testimony. Moreover, we review a district court’s findings to determine whether substantial evidence supports those findings, not contrary findings

. Denton v. First Interstate Bank of Commerce , 2006 MT 193, ¶ 43, 333 Mo nt. 169, ¶ 43, 142 P.3d 797, ¶ 43 (internal citations omitted). ¶79 While “substantial evidence” cannot be defi nitively quantified, we have previously stated that “[s]ubstantial evid ence is the amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion.” Lee v. Lee , 2000 MT 67, ¶ 20, 299 Mont. 78, ¶ 20, 996 P.2d 389, ¶ 20. On ce Opponents established that Proponents’ signature gatherers were enga ging in deceptive practices, it became Proponents’ burden to produce evidence to the cont rary. Section 26-1-401, MCA. They failed to do so. Therefore, we conclude that the District C ourt’s finding and conclusion that Proponent’s signature gatherers’ deceptive actions were pervasive was based on substantial evidence and was not clearly erroneous. Invalidation of Signatures ¶80 The District Court ultimat ely concluded that these three unlawful practices— certification of signatures that were not signe d in the presence of the affiant, false addresses, and bait and switch tactics—resulted in legally defective certification affidavits and constituted a “pervasive and general pattern and practice of fraud and conscious circumvention of procedural safeguar ds,” in violation of state laws relating to qualification of an initiative on the ballot. As it was impossible to precisely identify which certified signatures were untainted by Proponents’ signature gatherers’ various

34deceptive practices, the District Court inva lidated all signatures gathered by all of Proponents’ out-of-state paid wo rkers. As a result the Secretary of State’s certifications of CI-97, CI-98, and I-154 were likewise invalidated. ¶81 Proponents maintain that the District Court e rred by grouping all out-of-state signature gatherers together an d invalidating all of their si gnatures. With out supporting authority, they assert that the signatures of each signature gather er should have been contested on an individual basis. ¶82 Opponents submit that the District Cour t correctly invalidated the certified signatures gathered by the pa id out-of-state signature gath erers based on substantial, unrefuted evidence of the pervasive illegalities and deceptive pr actices established at the hearing, and the impossibility of distinguishing which si gnatures were gathered in accordance with the statutory re quirements and which were not. ¶83 As did the District Court, we conclude that the filing of a false affidavit by a signature gatherer is “more than a technicality ” in that it destroys the primary procedural safeguard for ensuring the in tegrity of the signature gathering process. The Maine Supreme Court, addressing a similar situation, recognized: [I]t is evident that the circulator’s ro le in a citizens’ in itiative is pivotal. Indeed, the integrity of the initiative and referendum proc ess in many ways hinges on the trustworthiness and verac ity of the circulator. In reviewing the signatures gathered by the circulator s, the Secretary [of State] has the ability to verify . . . that a signing voter is actually registered and therefore permitted to vote. In contrast, the Se cretary has no way, without engaging in a separate investigation, to verify that a signing voter actually signed the petition.
* * *

35In addition to obtaining tr uthful information from the circulator, the oath is intended to assure that the circulator is impressed with the seriousness of his or her obligation to honesty . . . a nd to assure that the person taking the oath is clearly identifi ed should questions aris e regarding particular signatures. . . . As early as 1917, we held that verification of the signatures and the subsequent oath taken by th e circulator is an “indispensable accompaniment of a valid pe tition,” and, accordingly, that the invalidation of signatures lacking this prerequisite is necessary to preserve the integrity of the initiative and referendum process. Taxpayers Action Network v. Sec. of State , 795 A.2d 75, 80 (Me. 2002). ¶84 Other courts have also invalidated signa tures upon a finding that the signature gatherers did not comply with the app licable statutory requirements. See State Question No. 138 , 244 P. at 804 (invalidati ng signatures collected by persons other than the affiant); Weisberger v. Cohen , 22 N.Y.S.2d 1011, 1012 (N.Y. 19 40) (the only sure way to prevent fraud is to invalidate all signatures tainted by fraud); In Matter of Lombardi v. State Board of Elections, 54 A.D.2d 532, (N.Y. App. Div. 3rd Dep’t., 1976) (court invalidates two entire sheets of signatures when they were “permeated with fraud”); and Citizens Committee v. DC Bd. Of Elections , 860 A.2d 813, 818 (D.C . 2004) (“In cases of proven false signing of affidavits, the Board t hus has undeniable aut hority to strike whole petition sheets associated with that impropriet y.”). Additionally, the Secretary of State may reject any petition that does not meet th e statutory requirements. Section 13-27-307,
MCA. ¶85 Some will argue that use of a “bait a nd switch” tactic does not warrant the invalidation of the signatures on the “bait” petition, as ma ny persons argu ably signed it voluntarily and knowingly. Others may claim th at invalidating signatures due to the use of false addresses by 43 signature gatherers is excessive, and an elev ation of form over

36substance. However, it bears emphasis that we are not deciding this case based solely on a conclusion that one or the other event occurre d in isolation. As did the District Court, we consider here the totality of the circumstances of the clai ms before us, as well as the totality of the unrefuted evid ence presented by Opponents without substantial objection from Proponents. Taking account of all the evid ence, we conclude that the District Court did not err when it invalidated the signatu res of Proponents’ out-of-state signature gatherers that were obtained in a manner that did not comply with Montana statutes and were tainted by or associated with deceptive practices and misrepresentation. ¶86 We acknowledge that many voters feel st rongly that they should have the opportunity to vote on one or more of these initiatives, and that these people will feel disenfranchised by our decision. This is ex tremely regrettable. The fact remains, however, that if the initiative process is to re main viable and retain its integrity, those invoking it must comply with the laws passed by our Legisl ature. We can neither excuse nor overlook violations of these laws, for to do so here woul d confer free reign for others to do so in other matters. We must enfo rce the law as written and as the Legislature intended. ¶87 County administrators are in structed not to co unt the votes for CI-97, CI-98 and I154 to the extent that this is technically feasible. If the votes must be counted, they will have no force or effect.

37CONCLUSION ¶88 For the foregoing reasons, we affirm the District Co urt’s Findings of Fact, Conclusions of Law and Order Invalidating Certification of CI-98, CI-97, and I-154.

/S/ PATRICIA COTTER

We concur: /S/ KARLA M. GRAY /S/ BRIAN MORRIS /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ TED L. MIZNER District Court Judge Ted L. Mizner sitting for Justice Jim Rice
/S/ THOMAS C. HONZEL District Court Judge Thomas C. Honzel sitting for Justice John Warner

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