GOODOVER v DEPT OF ADMINISTRATION
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No. 82-225 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982 PAT M. GOODOVER, STATE SENATOR and CARROLL A. G.RAHAM, STATE SENATOR, Plaintiffs, VS. THE DEPARTMENT OF ADMINISTRATION, et al., Defendants. ORIGINAL PROCEEDING: Counsel of Record: For Plaintiffs: John W. Larson argued, Helena, Montana For Defendants: Michael Young argued, Helena, Montana Submitted: Decided: Filed: 06:T 7 - 1382 September 9, 1982 October 7, 1982 J u s t i c e Frank B. Morrison, J r . , d e l i v e r e d t h e Opinion of t h e C o u r t . Mr. I n t h i s o r i g i n a l proceeding, p e t i t i o n i n g S t a t e Senators s e e k a d e c l a r a t o r y judgment t h a t House B i l l 872 (amending s e c t i o n s 5-17-101 and 5-17-102, MCA, d e a l i n g w i t h t h e C a p i t o l r e n o v a t i o n program) v i o l a t e s t h e Montana C o n s t i t u t i o n and s e v e r a l Montana s t a t u t e s . Defendants d e n i e d a l l s t a t u t o r y and c o n s t i t u t i o n a l v i o l a t i o n s and moved f o r a summary judgment i n t h e i r b e h a l f . W e g r a n t t h e prayer of p e t i t i o n e r s f o r a d e c l a r a t o r y judgment and i s s u e a n i n j u n c t i o n a g a i n s t f u r t h e r proceedings with r e s p e c t t o t h e C a p i t o l remodeling, u n t i l t h e c o n s e n t o f t h e l e g i s l a t u r e a s a whole h a s been o b t a i n e d f o r r e l o c a t i o n of t h e S t a t e S e n a t e chambers. On May 1, 1981, Governor Schwinden approved House B i l l 872 (now c o d i f i e d a s s e c t i o n 5-17-101, M C A ) , which doubled t h e membership on t h e C a p i t o l B u i l d i n g and P l a n n i n g Committ e e and p r o v i d e d t h a t t h e committee was t o s e r v e a s t h e l e g i s l a t u r e ' s r e p r e s e n t a t i v e i n p l a n n i n g t h e remodeling o f the Capitol. "decide. . The b i l l gave t h e committee t h e r i g h t t o . t h e a l l o c a t i o n and u s e of s p a c e i n t h e c a p i t o l , i n c l u d i n g w i t h o u t l i m i t a t i o n t h e l o c a t i o n of l e g i s l a t i v e chambers . . ." ( s e c t i o n 5-17-102(4), MCA; emphasis a d d e d ) . The c o n t r o v e r s y s u r r o u n d s a proposed move of t h e S e n a t e chambers from i t s p r e s e n t l o c a t i o n t o t h e s p a c e now o c c u p i e d by t h e law l i b r a r y . The committee h a s a u t h o r i z e d a move. P e t i t i o n e r s , who s e e k t o b l o c k t h e move, have r a i s e d s e v e r a l i s s u e s on a p p e a l . They a r e : (1) Does t h e power d e l e g a t e d t o t h e committee v i o l a t e Art. 111, Sec. 1, o r A r t . V, t u t i o n o r Montana s t a t u t e s ? Sec. 9 , of t h e Montana C o n s t i - (2) Does t h e Department of A d m i n i s t r a t i o n have a u t h o r i t y under s e c t i o n 2-17-101, MCA, t o a l l o c a t e space f o r t h e l e g i s l a t i v e b r a n c h of government? (3) Did t h e l e g i s l a t u r e s u f f i c i e n t l y approve t h e r e n o v a t i o n program s o t h a t any u n c o n s t i t u t i o n a l d e l e g a t i o n of a u t h o r i t y t o t h e committee would b e moot? W w i l l d i s p o s e of t h e t h i r d i s s u e f i r s t . e Defendants c o n t e n d t h a t l e g i s l a t i v e c o n s e n t under s e c t i o n 18-2-102, MCA, may t a k e two forms: a j o i n t r e s o l u t i o n when a money appropriation i s not required; a l e g i s l a t i v e appropriation when f u n d s a r e r e q u i r e d . Defendants a r g u e t h a t t h e l e g i s - l a t u r e c o n s e n t e d t o t h e proposed move of t h e S e n a t e chambers by a p p r o p r i a t i n g t h e money and a u t h o r i z i n g t h e s a l e of longr a n g e bonds. P e t i t i o n e r s argue t h a t the l e g i s l a t u r e d i d n o t s u f f i c i e n t l y approve t h e r e n o v a t i o n program and t h a t i t was t h e S e n a t e ' s i n t e n t t o consider t h e m a t t e r f u r t h e r i n January, S e c t i o n 18-2-102(1), MCA, p r o v i d e s i n p e r t i n e n t p a r t : .. " A u t h o r i t y t o c o n s t r u c t b u i l d i n g s . (1). a b u i l d i n g c o s t i n g more t h a n $25,000 may n o t be c o n s t r u c t e d w i t h o u t t h e c o n s e n t of t h e l e g i s l a t u r e . When a b u i l d i n g c o s t i n g more t h a n $25,000 i s t o be f i n a n c e d i n s u c h a manner as n o t t o r e q u i r e l e g i s l a t i v e approp r i a t i o n of moneys, such c o n s e n t may b e i n t h e form of a j o i n t r e s o l u t i o n . " " C o n s t r u c t i o n " i s d e f i n e d i n s e c t i o n 1 8 - 2 - 1 0 1 ( 3 ) , MCA, a s i n c l u d i n g t h e remodeling of a b u i l d i n g . W e interpret the above s t a t u t e t o r e q u i r e l e g i s l a t i v e c o n s e n t of a remodeling p r o j e c t t o c o s t i n e x c e s s of $25,000 and t h a t such l e g i s l a t i v e c o n s e n t may t a k e t h e form of a n a p p r o p r i a t i o n of money o r a j o i n t r e s o l u t i o n . Here t h e r e was an a p p r o p r i a - t i o n f o r t h e remodeling p r o j e c t . However, w e must d e t e r mine w h e t h e r , by s u c h a p p r o p r i a t i o n , t h e l e g i s l a t u r e i n t e n d e d t o approve r e l o c a t i o n of t h e S e n a t e chambers. Section 5-17-102(4), MCA, gave the Capitol Building and Planning Committee a directive to decide the location of legislative chambers. This directive to "decide" Senate situs belies defendants' contention that the legislature had consented to relocation of the chambers through passage of an appropriation for remodeling. Therefore, we find that the whole legislature has not, at this time, consented to relocation of the Senate chambers. Next, we must determine whether the legislature could constitutionally delegate to the Capitol Building and Planning Committee, the authority to "decide" location of legislative chambers. Petitioners argue that section 5-17- 102(4), MCA, violates the separation of powers provision (Art. 111, Sec. 1) and section 5-17-102(3), MCA, because the power given the entire legislature is being delegated to the committee which has power to make substantive decisions. Defendants contend that the delegation of power to the committee is only to "recommend." Section 5-17-102(4), MCA, gave the committee power to "decide. . .the allocation and use of space in the capitol, including without limitation the location of legislative chambers. .. . ." We must here determine the meaning of "decide .location of legislative chambers . . ." In looking for legislative intent, we honor the presumption that the statute is constitutional. Mont . Chevrolet v. Darvial (1982), 39 St.Rep. 112, we said: ". . In T & W , 641 P.2d 1368, .every intendment in its [constitutionality of a statute] favor will be made unless its unconstitutionality appears beyond a reasonable doubt." 641 P.2d at 1370. The Montana State Senate, a distinguished, honorable, and independent arm of the legislative body, has the right to determine where it will sit. Pursuant to section 5-17- 101, MCA, a long-range building committee was established consisting of six members of the House of Representatives, six members of the Senate, the Director of the Department of Administration, the Administrator of the Architectural Engineering Division of the Department of Administration, a representative of the Governor's office designated by the Governor, and the Director of the Lewis and Clark Area-Wide Planning Organization, who serves as a non-voting member. By enacting section 5-17-102, MCA, the legislature granted this committee, consisting in part of persons who were not members of the legislature, the right to make a decision on location of legislative chambers. However, section 5-17- 103, MCA, requires that the decision be reported back to the legislature. That statute provides in part: "The committee shall prepare a written report of its activities and recommendations and present the report to the legislature at each regular session." (Emphasis added.) statute does not mandate a useless act. legislative confirmation. Certainly this It must anticipate If that is true, then the legis- lature must have intended, in granting the right to "decide," to set forth committee responsibility and not to bind the legislature to the committee's decision. Only this inter- pretation is consistent with the mandate expressed in section 5-17-103, MCA. In this case, the committee has, pursuant to section 517-102(4), MCA, decided that the Senate chambers shall be moved. The committee now must, pursuant to 5-17-103, MCA, report its decision to the full legislature for approval. At this point, the requisite approval, as heretofore shown, is lacking. Since we have determined that the legislature intended for the committee's decision to be ratified by the whole legislature, there has been no unconstitutional delegation of authority. Sections 5-17-102(4) and 5-17-103, MCA, are, by this result, harmonized. Defendants finally argue that the Department of Administration has authority, pursuant to section 2-17-101, MCA, to allocate space for the legislative branch of government. Defendants argue that pursuant to a recommendation of the committee, the Department of Administration has validly made such an allocation. Section 2-17-101, MCA, provides: "Allocation of office space. The department of administration shall periodically survey the needs of state agencies located in Helena and shall assign space in state office buildings to such agencies. No state agency shall lease, rent, or purchase property for quarters in Helena without prior approval of the department. " We hold that the legislature is not a "state agency." The Department of Administration can allocate space for the legislative branch of government, but the legislature, being an independent body, has the right to determine where it will sit. As previously noted, the full legislature has not approved the decision of the Capitol Building and Planning Committee for removal of the Senate chambers. Until such approval has been granted by the legislature, the Department of Administration is powerless to allocate space for the Senate chambers. In accordance with this opinion we grant declaratory judgment to petitioners and issue an injunction against relocation of the Senate chambers until consent has been obtained from the legislature. We concur: Mr. C h i e f J u s t i c e F r a n k I . Haswell, d i s s e n t i n g : I dissent. by I would h o l d t h a t t h e p r o c e d u r e s f o l l o w e d t h e committee and l e g i s l a t u r e i n t h i s c a s e were s u f f i - cient t o p a s s c o n s t i t u t i o n a l muster and that the consent the form of s t a t u t e was f u l l y c o m p l i e d w i t h . Legislative appropriation or consent joint may take resolution. Section a money 18-2-102(1), The m a j o r i t y c o n c e d e s t h a t h e r e t h e r e was a n a p p r o p r i - PICA. a t i o n b u t t h e n g o e s beyond t h e c l e a r l a n g u a g e o f t h e s t a t u t e t o e x a m i n e a n o t h e r s t a t u t e , s e c t i o n 5-17-102, c o n t r o l l i n g s t a t u t e on t h e q u e s t i o n of is section 18-2-102(1), MCA, which The s o l e MCA. legislative consent provides in pertinent part: . . . "(1) a b u i l d i n g c o s t i n g more t h a n $ 2 5 , 0 0 0 may n o t b e c o n s t r u c t e d w i t h o u t t h e c o n s e n t of t h e l e g i s l a t u r e . When a b u i l d i n g c o s t i n g more t h a n $ 2 5 , 0 0 0 i s t o b e f i n a n c e d i n s u c h a manner a s n o t t o require legislative appropriation of moneys, s u c h c o n s e n t may b e i n t h e f o r m of a j o i n t r e s o l u t i o n . " A s i s a p p a r e n t f r o m r e a d i n g s e c t i o n 18-2-102, MCA, the l e g i s l a t u r e may c o n s e n t b y e i t h e r a money a p p r o p r i a t i o n o r a joint resolution. of the require unambiguous that The m a j o r i t y ' s a c t i o n f l i e s i n t h e f a c e words any o t h e r of that statute be statute. It does not consulted t o determine whether l e g i s l a t i v e c o n s e n t h a s been g i v e n and t h e o f f i c e o f a j u d g e is n o t t o i n s e r t w h a t h e t h i n k s h a s b e e n o m i t t e d i n a statute, s e c t i o n 1-2-101, MCA. Also, l e g i s l a t i v e consent i n t h e p a s t h a s t a k e n t h e form o f a n a p p r o p r i a t i o n of f u n d s , e.g., t h e a p p r o p r i a t i o n o f money f o r t h e N e w J u s t i c e B u i l d - ing. The l e g i s l a t u r e h e r e g a v e i t s i n f o r m e d c o n s e n t t o movi n g t h e s e n a t e chambers t o t h e l o c a t i o n p r e s e n t l y occupied by the law library, as is born out by the following facts. Between the 1979 and 1981 legislatures, the Department of Administration gave presentations regarding the Capitol renovation plan to a number of committees including the legislative finance committee, revenue oversight committee, legislative energy forecast committee, legislative audit committee, and the environmental quality council. during the 1981 legislature, a packet Moreover, of materials was placed on each legislator's desk dealing with this plan. Included in each presentation and in the legislators' packets was a proposed floor plan of the third floor of the Capitol, showing the senate occupying the space presently occupied by the law library. On the front page of the materials distributed to the legislators, the fifth paragraph begins with this sentence: "The Senate chambers would be moved from its existing location to the area presently occupied by the law library." The 1981 legislature ratified the decision to move the senate chambers to the law library by appropriating six and three-quarter million dollars for the Capitol renovation project and by authorizing the issuance and sale of five million dollars of long-range building program bonds to finance the improvement costs. Petitioners next argue that section 5-17-102(4), MCA, violates the separation of powers provision (Art. 111, Sec. 1) and section 5-17-102(3), MCA, because the power given the entire legislature is being delegated to the committee which has the power to make substantive decisions. reasons that since section 5-17-103, MCA, The majority requires the committee to report to the legislature and because this has not happened yet, there has been no unconstitutional delegation of authority. However, in my view, we need not decide the abstract question of whether this statute violates the separation of powers doctrine in view of the procedure followed by committee in treating its and in not attempting the decision as a recommendation only to exercise independently render a binding full authority decision. to As such, such action was also in conformance with section 5-17-102(3), NCA. The majority does not address petitioners' next argument, i.e., that Art. V, Sec. 9, of the Montana Constitution is being violated because the legislators are holding civil offices on the committee and members of the executive branch are holding legislative offices on the committee. Art. V , Sec. 9, provides: "Disqualification. No member of the legislature shall, during the term for which he shall have been elected, be appointed to any civil office under the state; and no member of congress, or other person holding an office (except notary public, or the militia) under the United States or this state, shall be a member of the legislature during his continuance in office." ,To constitute a "civil office," the office must, among other things, possess sovereign benefit of power of a delegation of a portion of government to the public, State ex be rel. exercised Barney v. (1927), 79 Mont. 506, 257 P. 411, 53 ALR 583. and recommendation-making, as happened constitute the exercise of sovereign powers. for the the Hawkins Fact-finding here, do not State ex rel. James v. Aronson (1957), 132 Mont. 120, 314 P.2d 849. I would, therefore, hold that since there has been no exercise of sovereign power of government here, the legislators are n o t h o l d i n g a c l v i i o f f i c e i n contravention of Section and 9 similarly recommendation-making find that, action by only, A r t i c l e V, virtue of executive the branch personnel a r e n o t a c t i n g a s l e g i s l a t o r s v i o l a t i n g A r t i c l e V, S e c t i o n 9. The f o c u s o f t h e t h i r d i s s u e i s w h e t h e r t h e D e p a r t m e n t of A d m i n i s t r a t i o n h a s a u t h o r i t y u n d e r s e c t i o n 2-17-101, t o a l l o c a t e space for the l e g i s l a t u r e . that the is n o t legislature legislature, being that the meeting place, sit. I legislature has but that The m a j o r i t y f i n d s s t a t e agency independent it w i l l d e t e r m i n e where premise an a body, and the the has that right to do n o t q u i b b l e w i t h the question MCA, right was select its to not the raised by tne p l e a d i n g s and is n o t a t i s s u e h e r e . is a t What is w h e t h e r issue here t h e Department of Adrrunlstration can a l l o c a t e space f o r t n e l e g i s l a t u r e ' s use. I t i s a common t e n e t o f s t a t u t o r y c o n s t r u c t i o n t h a t s p e c i f i c s t a c u t e s govern FICA, and cases over general interpreting statutes. it. Section 1-2-102, The s t a t u t e s p e c i f i c a l l y a d d r e s s i n g t h i s i s s u e is s e c t i o n 5-17-102(4), I n my MCA. v i e w , t h a t s t a t u t e and t h e i n t e r p r e t a t i o n o f i t g i v e n a b o v e , snould control. Also, t h e f a c t t h a t s e c t i o n 2-17-101, MCA, g i v e s t h e D e p a r t m e n t o f A d m i n i s t r a t i o n t h e power t o a l l o c a t e space for Gepartment well, the from state agencies accepting should additional not preclude responsibilities the as when t o d o s o f a c i l i t a t e s t h e s m o o t h r u n n i n g o f s t a t e government. allocated In the space for New Justice judicial Building, branch the personnel, Department who are c l e a r l y n o t members o f t h e e x e c u t i v e b r a n c h and n o t a s t a t e agency. I would g r a n t d e f e n d a n t s ' m o t i o n f o r summary j u d g m e n t . Chief J u s t i c e Mr. J u s t i c e F r e d 3 . Weber: I join Haswell. i n t h e f o r e g o i n g d i s s e n t of M r . Chief J u s t i c e
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