I saw in the Missoulian that there were people who were going to challenge the validity of the Citizens United Ballot issue. Thank god some people are paying attention to our State Constitution. I wrote about this issue last fall and spoke about it in 2007 when our City Council tried to pass a similar referendum.
Referendums and Initiatives are not to be used as public opinion polls. They are to be legislative acts that prohibit or require specific actions, with specific consequences.
Below you will find a copy of what our City Attorney said in 2007 in response to the Missoula City Council having a referendum about President Bush’s spending on the Iraq war. Funny, they did not have a referendum about President Obama and his spending. Which is totally the point.
It’s funny but this 2007 opinion was easily found on the Cities website awhile ago, but now it seems to be just beyond the date of those listed. 2007 is the same year our City Council called a new stadium blighted, mortgaged the stadium and land to Playball Missoula, which violated non-profit status laws regarding beneficiaries…
Sorry, I’m just thinking out loud, since I wrote the our State Attorney General Steve Bullock about these issues and was told that I should get an attorney to fix and resolve issues regarding the stadium…
I am very tired of just trying to get our government officials and others in the public realm to do things in the right way for the right reasons, and lead people through education, and example, not coerce or manipulate them.
Mr. Nugent rewrote the opinion last fall shortly after I showed City Councilman Jason Weiner the 2007 opinion that follows below. (The new opinion twists his old opinion on its head, and can easily be found on the cities web site. (legal opinion 2011-20))
What I am trying to say is that No party or political group should have the ability to frame election subjects putting their philosophies of non-binding controversal issues on the ballot.
In my case, last fall, it put me, while running for City Council, in the position of deciding to ignore the issue, and likely gain votes, or defend what I feel are important protections for minorities, whether opinions, social, or otherwise, provided in both the Federal and State Constitutions.
You could frame any election by putting various “litmus test” issues on a ballot. Issues like “Abortion is murder/a right”, “Our Current president is the best/a bone head”, or such topics like “Communism is good/bad” Socialism is good/bad, Capitalism is good/bad. These would require blanket statements, from those running, tainting the election with all sorts of issues that may not always be framed in black and white. This results in the election of people who really are only interested in manipulating the general population without educating them on the issues or the processes required.
Enough for now, here is the original 2007 opinion. If there are errors in it, I apologize, the format is originally from the cities web site, (when I last retrieved it) and had to be transferred as best I could.
OFFICE OF THE CITY ATTORNEY
MISSOULA, MT 59802·4297· (406) 552·6020· FAX: (406) 327·2105
Legal Opinion 2007-014
TO: John Engen, Mayor; City Council; Bruce Bender) CAD; Marty Rehbein; Nikki
Rogers; Kelly Elam; Nick Roberts; Brentt Ramharter; Beckie Christians
CC: Dept. Atty
FROM: Jim Nugent, City Attorney
DATE June 19, 2007
RE: Pursuant to Montana’s Constitution and municipal statutes, the powers of initiative and
referendum are retained for legislative acts only.
The topic of an Iraq War referendum statement to be placed on the Municipal City ballot has been referred to the City Council Committee of the Whole for discussion.
In Montana, what do the powers of initiative and referendum apply to?
The Montana Supreme Court in Town of Whitehall v, Preece (1998) reaffirmed that under Montana’s Constitution, the people have retained the powers of initiative and referendum as to legislative acts only. Section 7-5-131 of Montana’s municipal government statutes is entitled “Right of initiative and referendum.” This statute indicates that the powers of initiative and referendum reserved for the electors of each local government pertain to “resolutions and ordinances within the legislative jurisdiction and power of the governing body.”
Montana’s municipal initiative and referendum statutes are set forth in Mont. Code Ann. §§ 7-5-131 through 7-5-137 MCA. These initiative and referendum statutes apply to resolutions and ordinances “within the legislative jurisdiction and power of the governing body.” The Montana Supreme Court in Town of Whitehall v. Rick Preece et. al., 1998 Mont
LEXIS 33 discussed elector powers of initiative and referendum under the Montana
Constitution and Montana municipal statutes and held that the powers of initiative and
referendum were retained as to “legislative acts only.” See ¶25.
Initially, the Montana Supreme Court discussed relevant Montana constitutional provisions pertaining to initiative and referendum stating in paragraphs 15 and 16:
Montana’s Constitution reserves to the people of this State the powers to challenge and enact laws through the referendum and initiative processes. In Article V, “the Legislature,” the Constitution provides that “The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum.” Art. V” Sec. 1, Mont. Const.
In its General Government Article, Montana’s Constitution defines the initiative power at Article III, Section 4, It defines the referendum power in the following section:
(1) The people may approve or reject by referendum any act of the legislature except an appropriation of money. A referendum shall be held either upon order by the legislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. The total number of signers must be at least five percent of the qualified electors of the state. A referendum petition shall be filed with the secretary of state no later than six months after adjournment of the legislature which passed the act.
(2) An act referred to the people is in effect until suspended by petitions signed by at least 15 percent of the qualified electors in a majority of the legislative representative districts. If so suspended the
act shall become operative only after it is approved at an election, the result of which has been determined and declared as provided by law.
Art. III, Sec. 5, Mont. Const.
A third reference to the powers of initiative and referendum appears under the Local Government Article. Article XI, Section 8, Mont. Const., provides:
Initiative and referendum.
The powers of initiative and referendum are reserved to the electors of each local government. Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government. except those set out in subsection (2), may be proposed or amended and prior resolutions and ordinances may be repealed in the manner provided in 7-5-132 through 7-5-137.
(2) The powers of initiative shall not extend to the following:
(a) the annual budget;
(b) bond proceedings, except for ordinances authorizing bonds;
(c) the establishment and collection of charges pledged for the payment of principal and
interest on bonds; or
(d) the levy of special assessments pledged for the payment of principal and interest on bonds.
Mont. Code Ann. § 7-5-131. (Emphasis added.)
The Montana Supreme Court in the Whitehall case then discussed legislative
acts stating in paragraphs 17, 20, and 21:
“This Court has long recognized a distinction between legislative and administrative acts as ‘whether the act was one creating a new law (legislative) or executing an already existing law (administrative).”
Courts in other jurisdictions with constitutional provisions extending the power of referendum to “acts of the legislature” have recognized “act” as a term of art. meaning a bill passed by the legislature and enacted into law. See, e.g., Wennerstrom v. City of Mesa (1991). 169 Ariz. 485. 821 P.2d 146.149.
See also City of Idaho Springe v. Blackwell (Colo. 1987). 731 P.2d 1250. 1253;
In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma Numbered 74-1 and 74-2 (Okla. 1975).534 P.2d 3. The Supreme Court of Nebraska has reasoned:
To allow [the referendum] to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city. In many cases it
would entirely prevent the exercise of the executive power necessary to carry out the acts determined upon by the legislative department. In the absence of a very clear declaration to the contrary it must be presumed that the power of referendum was intended to apply solely to the legislative powers of the city. (Emphasis added.)
The Montana Supreme Court went on to discuss the constitutional history of initiative and referendum in Montana in paragraphs 22 through 25.
Montana’s 1889 Constitution reserved to the people “power to propose laws. and to enact or reject the same at the polls.” Art. V. Sec. 1, 1889 Montana Constitution. No case law under the 1889 constitution suggests that the powers of initiative and referendum in Montana ever extended to anything other than legislative acts. Nor does anything in the transcript of the proceedings of the 1972 Constitution suggest an intent to expand the power of initiative and referendum to anything other than legislative power. In fact, in recommending the adoption at the 1972 Montana Constitutional Convention of the referendum provision which was adopted as Article III, Section 5, Delegate Mark Etchart stated, “This provision is parallel to the present referendum provisions as contained in Article V, Section 1, of the present Constitution.” 1972 Mont. Const. Tr., March 18, 1972, Vol. VII at 2217. In short, Montana’s 1972 Constitution does not contain a “very clear declaration to the contrary,” as the Nebraska court suggested is required, to the general rule that the power of referendum is intended to apply solely to legislative powers.”
Instead, as noted above, the provision by which the people retain the right of initiative and referendum appears in the constitutional Article on “The Legislature.” No comparable provisions appear in the Articles concerning the Executive and the Judiciary. Article VI. Section 4. Mont. Const., vests the judicial power of the state in this Court, the district courts, justice courts, and other courts that the legislature may create. There is no reservation of judicial power to the people by initiative and referendum.
Under Article XI. Section 8. Mont. Const., the Montana Legislature is to extend to the qualified electors of local government units “the initiative and referendum powers reserved to the people by the
constitution. “Even under the policy of broadly construing the powers of initiative and referendum. the legislature cannot extend to the people greater powers against local government than those which the
people have reserved to themselves in the Constitution. The powers of initiative and referendum have been reserved under the Constitution as to legislative acts only.
For these reasons, we decline to abandon the rule set forth in Nore or to adopt the position set forth in the concurring opinion in Greens. We reaffirm that under Montana’s Constitution. the people have retained the powers of initiative and referendum as to legislative acts only. Because we so rule, the question here raised as to the constitutionality of§ 7~5-131, MeA, is resolved in the statute’s favor. (Emphasis added.)
The Montana State Legislature defines legislative act as:
(c) (i) the term “legislative act” means:
(A) actions by a legislative body that result in creation of law or
declaration of public policy;
(B) other actions of the legislature authorized by Article V of The
Constitution of the State of Montana; or
(C) actions by a school board that result in adoption of school board
policies pursuant to 20-3-323(1);
(ii) the term legislative act does not include administrative actions
undertaken in the execution of a law or public policy. (Emphasis
Mont. Code Ann. § 2-9-111(1(c).
Pursuant to Montana’s statutory rules of construction (interpretation) with respect
to statutory definitions, Mont. Code Ann. § 1-2-107 provides:
1-2-107. Applicability of definitions. Whenever the meaning of a word or
phrase is defined in any part of this code, such definition is applicable to the same
word or phrase wherever it occurs, except where a contrary intention plainly
The Montana Supreme Court in Town in Whitehall v. Preece (1998) reaffirmed that under Montana’s Constitution, the people have retained the powers of initiative and referendum as to legislative acts only. Section 7-5-131 of Montana’s municipal government statutes is entitled “Right of initiative and referendum.” This statute indicates that the powers of initiative and referendum reserved for the electors of each local government pertain to “resolutions and ordinances within the legislative jurisdiction and power of the governing body.”
Office of the City Attorney