JORDAN KEMMIS v MURRAY WOODAHL

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I N THE SUPREME COURT O THE STATE O M N A A F F OTN No. M T H W JORDAN, AT E VS 13541 and DANIEL KEMMIS, . Petitioners, F A K MURRAY, THE SECRETARY O STATE R N F and ROBERT WOODAHL, THE ATTORNEY GENERAL O T E STATE O MONTANA, F H F Respondents. y~aa.z$ 3'-/LG - and T E "NO ON INITIATIVE 7 1 COMMITTEE", H a n u n i n c a p o r a t e d a s s o c i a t i o n , and EDWARD KEIL, C. R. THIESEN, and RUSSELL J . COX, individuals, CLLh;;: : G l i : p p ~ , f i ~c : , s i Pi-8 c :>gs. r:"; - y*'", fn.igy , * Intervenors. O R D E R PER CURIAM: T h i s i s a n a p p e a l by r e s p o n d e n t s and i n t e r v e n o r s from a n o r d e r o f t h e d i s t r i c t c o u r t o f Lewis and C l a r k County g r a n t i n g a w r i t o f mandamus c o m p e l l i n g t h e S e c r e t a r y o f S t a t e t o p l a c e t h e A t t o r n e y G e n e r a l ' s o r i g i n a l e x p l a n a t o r y s t a t e m e n t o r summary of I n i t i a t i v e No. 71 ( t h e so-called nuclear s i t i n g i n i t i a t i v e ) on t h e b a l l o t f o r t h e g e n e r a l e l e c t i o n . The o r d e r o f t h e d i s t r i c t c o u r t w a s o r a l l y e n t e r e d by t h e d i s t r i c t judge f o l l o w i n g h e a r i n g on September 22, 1976; t h e n o t i c e o f a p p e a l was f i l e d September 23, t h e r u l e s w e r e suspended and t h e a p p e a l was h e a r d by t h i s C o u r t on t h e same d a y p u r s u a n t t o w r i t t e n agreement and s t i p u l a t i o n o f c o u n s e l f o r a l l p a r t i e s e x c e p t t h e S e c r e t a r y o f S t a t e who d i d n o t a p p e a r ; and t h e m a t t e r w a s a r g u e d , w r i t t e n b r i e f s p r e s e n t e d , and subm i t t e d t o t h e C o u r t f o r d e c i s i o n on September 23. I t was r e p - r e s e n t e d t o t h i s C o u r t by a l l a p p e a r i n g p a r t i e s t h a t t h i s C o u r t ' s d e c i s i o n h e r e i n w a s n e c e s s a r y n o t l a t e r t h a n September 2 4 t o m e e t s t a t u t o r y and p r i n t i n g d e a d l i n e s . W e now. reverse t h e o r d e r o f t h e d i s t r i c t c o u r t . W e hold t h a t t h e second e x p l a n a t o r y s t a t e m e n t o r summary of t h e A t t o r n e y - 1 - General on Initiative 71 is entitled to be printed on the ballot and we order the Secretary of State to proceed accordingly. The reasons for our decision are: (1) The original statement or summary of the Attorney General, viz . "This act would amend the Montana Major Facility Siting Act. The proposed amendment would require legislative approval, in addition to the approval of the Board of Natural Resources, for construction of a nuclear facility. The Board may refuse approval if it finds: that the facility's liability is limited; that the facility's safety system is not satisfactory; or that there is a reasonable chance that radioactive or chemically toxic waste may be released into the environment. The act would further require the governor to publish procedures for evacuating affected communities and to establish emergency medical plans." does not satisfy the requirements of section 37-104.1, R.C.M. * * * 1947, in that it is not "a/true and impartial statement of the purpose of the measure in plain, easily understood language and in such a manner as shall not be an argument or likely to create prejudice for or against the measure." It could mislead the voters and is therefore illegal. (2) The second statement of the Attorney General, viz. "This Act would amend the Montana Major Facilities Siting Act by banning nuclear power plants in Montana until Congress removes federal liability limits. If this action takes place then further conditions must be met, or the ban of nuclear facilities would remain in effect. Such conditions include the comprehensive testing of substantially similar physical nuclear systems in actual operation and technical findings by the Legislature and the Board of Natural Resources that there is no reasonable chance of radioactive materials being released into the environment because of imperfect storage, earthquakes, acts of God, sabotage, act of war, theft, etc." satisfies the requirements of section 37-104.1, R.C.M. 1947. (3) Mandamus is a proper remedy. Section 93-9102, R.C.M. (4) The Attorney General has the power to revise his original statement or summary after the 10 day period provided in section 37-104.1, R.C.M. 106, R.C.M. 1947, by reason of section 37- 1947, providing that the form of ballot shall be prescribed by the attorney general without time limitation. Let remittitur issue forthwith. / Chief Justice \ /

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