Cottonwood v. State

2024 MT 313

Opinion

12/18/2024

DA 24-0324 Case Number: DA 24-0324

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 313

COTTONWOOD ENVIRONMENTAL LAW CENTER; LIZ AMETSBOSCHLER; DANNY CHORIKI; JEREMY DRAKE; AVIV GUSCIO; KATIE HARRISON; YOUPA STEIN; MARY STRANAHAN; JANS SWANSON and THOMAS WALDORF,

Plaintiffs and Appellees,

v.

STATE OF MONTANA,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 2023-754 Honorable Michael F. McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Austin Knudsen, Montana Attorney General, Michael Russell, Thane Johnson, Alwyn Lansing, Assistant Attorneys General, Helena, Montana

Emily Jones, Jones Law Firm, PLLC, Billings, Montana

For Appellees:

John Meyer, Cottonwood Environmental Law Center, Bozeman, Montana

David K. W. Wilson, Jr., Robert Farris-Olsen, Morrison Sherwood Wilson & Deola, PLLP, Helena, Montana

Submitted on Briefs: November 20, 2024 Decided: December 18, 2024

Filed:

r-6tA•-if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 The State of Montana appeals from a March 19, 2024 Partial Summary Judgment

Motion Order (Order) of the First Judicial District Court. The District Court struck

§ 7-5-131(2)(f), MCA (2023), as facially unconstitutional. We reverse.

¶2 We restate the issue on appeal as follows:

Whether § 7-5-131(2)(f), MCA (2023), limiting the right of local citizen initiatives to regulate “auxiliary containers” is facially unconstitutional under Article XI, Section 8, of the Montana Constitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 2021, the Legislature passed House Bill 407 (HB 407). See 2021 Mont. Laws

ch. 220. The purpose of the Bill was “to preempt any local ordinance, resolution, initiative,

or referendum regulating the use, disposition, sale, prohibitions, fees, charges, or taxes on

certain containers.” Section 7-1-121(1), MCA (2021 Mont. Laws ch. 220, § 1(1)).1

Section 7-1-121(2), MCA, prohibited a local unit of government from adopting or

enforcing any local ordinance, resolution, initiative, or referendum that regulated, taxed, or

prohibited the use or sale of “auxiliary containers,” which included, among other things,

single use plastic bags, utensils, and packaging. See also § 7-1-121(4), MCA.

¶4 Bozeman adopted a self-government charter in 2000. HB 407 also amended

§ 7-1-111, MCA, which prohibits local government units with self-government powers

from exercising certain powers, to prohibit them from exercising “any power as prohibited

in [§] 7-1-121(2) affecting, applying to, or regulating the use, disposition, sale,

1 Unless otherwise noted, all references to statutes are to the 2023 versions of the law. 2 prohibitions, fees, charges, or taxes on auxiliary containers, as defined in [§] 7-1-121(4).”

Finally, HB 407 amended § 7-5-131, MCA, which extends the powers of initiative and

referendum to the electors of each local government, to prohibit the power of local

initiatives from regulating auxiliary containers, as defined in § 7-1-121(4), MCA. Section

7-5-131(2)(f), MCA.

¶5 On October 12, 2023, Isaac Cheek, a Cottonwood Environmental Law Center

(Cottonwood) member, submitted a local ballot initiative petition (Petition) to the Gallatin

County Election Office that would regulate single-use plastics in Bozeman. On

November 1, the Gallatin County Election Administrator, Eric Semerad, rejected Cheek’s

Petition, citing Bozeman City Attorney Greg Sullivan’s review letter that the Petition was

outside the local initiative power based on § 7-5-131(2)(f), MCA. On November 28,

Cottonwood and other plaintiffs filed a complaint for declaratory and injunctive relief

challenging the constitutionality of HB 407. Cottonwood’s first claim for relief was for a

declaration that §§ 7-1-121, and -5-131(2)(f), MCA, were unconstitutional on their face

under Article II, Section 1, Article V, Section 1, and Article XI, Section 8, of the Montana

Constitution. Cottonwood’s second claim for relief was for a declaration that

§§ 7-1-111(21), and -121, MCA, were unconstitutional under the Montana Constitution’s

guarantee of the inalienable right to a clean and healthful environment.2

2 This appeal comes to us from the District Court’s certification of its order as a final order under M. R. Civ. P. 54(b) and our order allowing the appeal to proceed pursuant to M. R. App. P. 4(4)(b). Cottonwood Env’t Law Ctr. v. State, No. DA 24-0324, Order (Mont. June 6, 2024). Cottonwood’s second claim for relief regarding the constitutionality of HB 407 under the right to a clean and healthful environment is still pending before the District Court as the court granted the State’s 3 ¶6 On February 15, 2024, Cottonwood filed a motion for partial summary judgment on

its first claim for relief. The District Court granted Cottonwood’s motion on March 19,

finding § 7-5-131(2)(f), MCA, unconstitutional under Article XI, Section 8, of the Montana

Constitution. On April 21, Cottonwood moved for entry of final judgment on its first claim

under M. R. Civ. P. 54(b)(1) as Gallatin County had indicated it would not process the

Petition without a final judgment on the issue.3 The District Court granted Cottonwood’s

motion on May 6 and the State filed its notice of appeal on Cottonwood’s first claim on

May 22.

STANDARD OF REVIEW

¶7 “The constitutionality of a statute is a question of law, and we have plenary review

of constitutional questions.” Mont. Democratic Party v. Jacobsen, 2024 MT 66, ¶ 11,

416 Mont. 44, 545 P.3d 1074. A statute is presumed constitutional, and a facial challenge

must show a law is unconstitutional in all its applications. Jacobsen, ¶ 11.

¶8 The Framers’ intent controls our interpretation of a constitutional provision, which

we discern not only from the plain language of the provision but also from “the historical

and surrounding circumstances under which the Constitution was drafted, the nature of the

subject matter the Framers faced, and the objective they sought to achieve.” Jacobsen,

¶ 18.

request for additional time to conduct discovery. As it is not yet before us, we take no view of the merits of Cottonwood’s second claim for relief. 3 Notably, following the District Court’s certification of its order as a final order, Gallatin County placed the initiative on the 2024 general election ballot, which passed with roughly 18,800 votes for and 10,800 votes against. See Gallatin County Election Results, available at https://perma.cc/J4CT-XHKQ (last visited Dec. 12, 2024). 4 DISCUSSION

¶9 Whether § 7-5-131(2)(f), MCA (2023), limiting the right of local citizen initiatives to regulate “auxiliary containers” is facially unconstitutional under Article XI, Section 8, of the Montana Constitution?

¶10 Prior to the 1972 Montana Constitution, counties, cities, or towns could only

exercise powers expressly granted to them by the Constitution, statute, or arising by

necessary implication therefrom, and any reasonable doubt concerning such powers were

resolved against the municipality. Tipco Corp. v. Billings, 197 Mont. 339, 344, 642 P.2d

1074, 1077 (1982); see also City of Missoula v. Armitage, 2014 MT 274, ¶ 15, 376 Mont.

448, 335 P.3d 736. The 1972 Constitution, however, generally expanded the powers of

local government units.4 See Armitage, ¶ 16. The 1972 Constitution divided powers

exercised by local government units into two-tiers: local government units without

self-government powers, and those with self-government powers. Compare Mont. Const.

art. XI, § 4, with Mont. Const. art. XI, § 6. Local government units without

self-government powers have similar powers to those prior to the 1972 Constitution—

generally only those provided or implied by law—yet the Framers instructed that their

powers should be liberally construed instead of construing reasonable doubt against the

government unit as before. Mont. Const. art. XI, § 4(2); see also Montana Constitutional

Convention, Committee Proposals, Vol. II, p. 792 [hereinafter Committee Proposals]

(describing a “somewhat liberalized version of the powers now exercised by the local

units”); Montana Constitutional Convention, Verbatim Transcript, March 16, 1972, Vol.

4 See Mont. Const. art. XI, § 1 (defining local government units to include counties and incorporated cities and towns). 5 VII, p. 2523 [hereinafter Convention Transcript] (proposing a “restatement of what we

presently have” with two points of departure).

¶11 However, local government units that adopt self-government powers through a

charter, see Article XI, Sections 5 and 6, of the Montana Constitution, will “share powers

with the state government” and have “considerably more freedom in determining their local

affairs.” Committee Proposals, pp. 796–97. This new constitutional provision reversed

the general rule requiring legislative action before local action was permitted:

Legislative inaction no longer could block local action; instead, such inaction on the state level would serve as a go-ahead for local governments. Significantly, the “shared powers” concept does not leave the local unit free from state control; it does, however, change the basic assumption concerning the power of local government. At present [under the 1889 Montana Constitution], that assumption is that local government lacks power unless it has been specifically granted. Under the shared powers concept, the assumption is that local government possesses the power, unless it has been specifically denied.

The legislature, in areas such as pollution control where statewide uniformity is desirable, still could impose statewide standards under the shared powers concept. Some areas—such as the definition and punishment of felonies— undoubtedly would be retained by the legislature.

Committee Proposals, p. 797 (italicized emphasis added); see also Convention Transcript,

p. 2528 (discussing once a charter is adopted, it is the local government’s form of

government “and they don’t have to follow any of the other statutes, except

for . . . wherever they’re limited [by the Legislature]”); Convention Transcript, pp. 2529–

30; Am. Cancer Soc’y v. State, 2004 MT 376, ¶ 9, 325 Mont. 70, 103 P.3d 1085. Thus,

“[a] local government unit adopting a self-government charter may exercise any power not

prohibited by this constitution, law, or charter.” Mont. Const. art. XI, § 6 (emphasis

6 added).5 See also Armitage, ¶ 17 (“The authority of a local government with

self-government powers can be limited by express prohibitory language.”).

¶12 Regarding the new provision directing the Legislature to “extend the initiative and

referendum powers reserved to the people by the constitution to the qualified electors of

each local government unit,” Article XI, Section 8, of the Montana Constitution, the

committee “believe[d] it [was] essential that local residents have the powers of initiative

and referendum, particularly in view of the broad self-government powers offered in this

proposal.” Committee Proposals, p. 799; see also Convention Transcript, p. 2548 (same).

The Framers did not discuss this new provision beyond the introduction given by Delegate

Simon. The only other indication of what the Framers intended in the introduction is as a

check on expanded local powers granted by Article XI. See Convention Transcript,

p. 2549. Additionally, echoing our well-established rule that constitutional provisions

bearing on the same subject matter be read and construed together, see, e.g., Cross v.

VanDyke, 2014 MT 193, ¶ 17, 375 Mont. 535, 332 P.3d 215, the committee explained

during debate on the local government provisions that the committee “ha[d] written it as a

whole piece of cloth.” Convention Transcript, p. 2513.

¶13 It is thus the clear intent of the Framers, and from the plain language of Article XI,

Section 6, of the Montana Constitution, that the Legislature may place limits on the powers

of local government, subject, of course, to other constitutional limits and rights.

5 The State’s citations to Billings v. Herold, 130 Mont. 138, 296 P.2d 263 (1956), and other pre-1972 decisions discuss local government powers under the 1889 Constitution and are thus inapposite to evaluate the new powers granted under Article XI, Section 6, of the 1972 Montana Constitution. 7 Cf. Convention Transcript, p. 2534 (Delegate Simon confirming that the Legislature could

not usurp constitutional protections with local charters); Appellant’s Opening Brief,

pp. 13–14 (“simply because such rights are reserved [in the Constitution] does not mean

that they cannot in some sense be limited by other constitutional provisions.”).

¶14 Any limits on local government power must necessarily also include limits on the

local power of initiative. Contrary to Cottonwood’s position, the initiative power at any

level—including local, statewide, and Constitutional amendments—has constraints. It is

axiomatic that a statewide initiative to enact an unconstitutional law would fail.

See, e.g., State ex rel. Steen v. Murray, 144 Mont. 61, 65–66, 394 P.2d 761, 763–64 (1964)

(enjoining a proposed initiative that would directly conflict with the Constitution).

Similarly, a Constitutional amendment would fail if it was unconstitutional under the

United States Constitution. Compare Mont. Const. art. XIII, § 7 (prohibiting same-sex

marriage under the Montana Constitution enacted by voter initiative November 2004), with

Obergefell v. Hodges, 576 U.S. 644, 681, 135 S. Ct. 2584, 2607 (2015) (holding the United

States Constitution guarantees the fundamental right to marry to same-sex couples in all

states). We noted in Steen our prior holdings that “the people exercising the initiative are

subject to the same rules as the Legislature.” Steen, 144 Mont. at 66, 394 P.2d at 763. It

follows that the people exercising the right to local initiative would similarly be subject to

the same rules as local government units—i.e., local initiatives under Article XI, Section

8, of the Montana Constitution cannot exercise power prohibited by the constitution or law.

Mont. Const, art. XI, § 6. Although we recognize “that the initiative power should be

broadly construed to maintain the maximum power in the people,” State ex rel. Harper v.

8 Waltermire, 213 Mont. 425, 429, 691 P.2d 826, 829 (1984), a local initiative could not

preempt state law, just as a statewide initiative could not preempt the Constitution or a

constitutional initiative could not preempt the United States Constitution. Cottonwood has

not pointed us to any cases—in this jurisdiction or others—that have held otherwise.

¶15 The Legislature has enacted Title 7 dealing with local governments. Mindful of

Article XI, Section 6, of the Montana Constitution, the Legislature enacted § 7-1-101,

MCA, which allows “a local government unit with self-government powers [to] exercise

any power not prohibited by the constitution, law, or charter.” (Emphasis added.) The

Legislature has also enacted § 7-1-111, MCA, which lists powers that local government

units with self-government powers are prohibited from exercising. In 2021, HB 407

amended § 7-1-111, MCA, to prohibit local government units with self-governing powers

from exercising any power to regulate auxiliary containers. See § 7-1-111(21), MCA.

¶16 By Article XI, Section 6, of the Montana Constitution’s plain language and

meaning, § 7-1-111(21), MCA, is constitutional and prohibits local government units with

self-governing powers from exercising the powers listed.6 As the people’s right to

initiative is subject to the same rules as local government units, it follows that even without

considering § 7-5-131(2)(f), MCA, the people of a local government unit would not have

6 The State argues that “HB 407 infringes on no rights under the Montana Constitution.” But Cottonwood’s claim under the right to a clean and healthful environment is not yet before us and we make no comment on the prohibition’s constitutionality under that provision at this time.

9 the power to pass an initiative that the local government has been prohibited from

exercising.7

¶17 The Dissent starts from the wrong place. It argues that a statutory restriction on the

constitutional right of citizen’s initiative is facially unconstitutional, notwithstanding that

§ 7-1-111(21), MCA, clearly limits local government power. Dissent, ¶ 25. While we

agree with that sentiment, the Dissent ignores that “[s]tatutes are presumed constitutional.”

Jacobsen, ¶ 11. As noted, Cottonwood’s claim that § 7-1-111(21), MCA, and the rest of

HB 407 is unconstitutional under Montanans’ right to a clean and healthful environment

has not yet been decided by the District Court and is not before us. Section 7-1-111(21),

MCA, is thus still a valid law and is the “context” before this Court. Unless and until the

District Court declares that law unconstitutional as an infringement on the right to a clean

and healthful environment, § 7-1-111(21), MCA, constrains local government power,

which necessarily constrains local initiative power as explained above—making the

initiative “facially defective” and “a senseless waste of time and money for all involved”

as the law now stands. Dissent, ¶¶ 24–25.

CONCLUSION

¶18 The District Court erred in finding § 7-5-131(2)(f), MCA, facially unconstitutional

under Article XI, Section 8, of the Montana Constitution. The State may explicitly prohibit

local government units with self-government powers from exercising powers under Article

7 The State correctly notes that § 7-5-131(2)(f), MCA, does not—nor could it—prohibit the power of initiative on a statewide level as reserved to the people under Article III, Section 4(1), of the Montana Constitution. 10 XI, Section 6, of the Montana Constitution, and no claims are yet before us that the enacted

laws infringe on any other rights under the Montana Constitution.

¶19 Reversed.

/S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶20 Our Declaration of Rights begins by announcing the paramount role of popular

sovereignty in the Montana constitutional cosmology: “All political power is vested in and

derived from the people. All government of right originates with the people, is founded

upon their will only, and is instituted solely for the good of the whole.” Mont. Const. art. II,

§ 1. “Legislative power is vested in” a bicameral legislature and “the people reserve to

themselves the powers of initiative and referendum.” Mont. Const. art. V, § 1. We have

continually held—and must continue to consider—that the Montana Constitution is a

prohibition on legislative power, rather than a grant of power. Board of Regents v. State

ex rel. Knudsen, 2022 MT 128, ¶ 11, 409 Mont. 96, 512 P.3d 748 (citation omitted).

¶21 The initiative power is obviously not unlimited. The people possess the power to

“enact laws by initiative on all matters except appropriations of money and any local or

special laws.” Mont. Const. art. III, § 4 (emphasis added). Section 7-5-131(2), MCA,

11 proscribes that power when the people exercise their right to initiative or referendum in six

instances. The first four provide that the people may not exercise the power of initiative in

matters related to:

(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; (d) The levy of special assessments pledged for the payment of principal and interest on bonds; . . . .

Section 7-5-131(2)(a)-(d), MCA. Those four provisions reiterate the constitutional limits

on the initiative authority regarding appropriations of money. Mont. Const. art. III, § 4.

The fifth circumstance prohibits initiative and referendum related to “the prioritization of

the enforcement of any state law by a unit of local government.” Section 7-5-131(2)(e),

MCA. This provision comports with our “distinction between legislative and

administrative or quasi-judicial acts in relation to the powers of initiative and referendum.”

Town of Whitehall v. Preece, 1998 MT 53, ¶ 18, 288 Mont. 55, 956 P.2d 743. A legislative

act is one which “creat[es] a new law” and an administrative act relates to the “execut[ion

of] an already existing law.” Preece, ¶ 18 (quotation omitted). Initiatives related to the

former are permissible exercises of popular sovereignty; initiatives on the latter are not.

Preece, ¶¶ 24, 26 (Article VI, Section 4, does not reserve “executive power to the people

by initiative and referendum” and Article VII, Section 1, does not reserve judicial power

the same way Article V, Section 1, of the Montana Constitution reserves “the powers of

initiative and referendum as to legislative acts only” to the people). The sixth and final

category of initiative forbidden under § 7-5-131(2), MCA, emerges from no other provision

12 of the Montana Constitution. Instead, the sixth category prohibits local initiatives to

regulate “auxiliary containers.” Section 7-5-131(2)(f), MCA. The legislature has defined

“auxiliary containers” to refer to “a bag, cup, bottle, can, device, eating or drinking utensil

or tool, or other packaging, whether reusable or single use” made of cloth, paper, plastic,

carboard, Styrofoam, or similar materials designed for transporting, consuming, or

protecting consumer goods or food. Section 7-1-121(4)(a), MCA. None of these words

appear in or relate to the limitations found in Article III, Section 4, of the Montana

Constitution.

¶22 The Court is correct that Article XI, Section 6, of the Montana Constitution grants

local governments the authority “to exercise any power not prohibited” by other

Constitutional provisions, local government charter, or state statute.” Opinion, ¶ 11. Yet,

the question before us today is whether the District Court correctly determined a restriction

on initiative power by the legislature impermissibly restricts the Bozeman citizens’

constitutional right to enact laws through initiative. Instead, the Court has endeavored to

answer the question of whether §§ 7-1-111, -121, MCA, prohibit the city of Bozeman from

enforcing an initiative which seeks to regulate single-use plastics. This qualitative

distinction between the respective constitutional initiative powers wielded by Montana

citizens, exercised either through statewide Article V, section 1, of the Montana

Constitution initiative power or as a local Article XI, Section 8, of the Montana

Constitution initiative power, versus the powers afforded to local governments was

dispositive for the District Court. The ruling below correctly identified the distinction

between local authority and the people’s much broader initiative power. Cottonwood

13 sought and secured a declaration from the District Court that § 7-1-131(2)(f), MCA,

presents a facially unconstitutional infringement of their right to enact laws through

initiative and referendum.

¶23 Here, the Montana Constitution is clear that the people reserve the power to enact

laws through initiative and referendum. Section 7-1-131(2)(f), MCA, impedes this power

and is therefore facially unconstitutional. The Court understands—and I do not contest—

that the Montana Constitution constrains the powers of local governments adopting

self-governance to those powers which do not explicitly conflict with the Montana

Constitution, the local government’s own charter, or laws of the State. Mont. Const. art.

XI, §§ 5-6. However, the proposition that “any limits on local government power must

necessarily also include limits on the local power of initiative,” Opinion, ¶ 14, is

unsupported by the plain meaning of the Montana Constitution. To arrive at this conclusion

tethering local initiative power to local government power, the Court relies in part on Steen

to support preempting initiatives which, if passed, would be impossible to reconcile with

the Montana Constitution. Opinion, ¶ 14 (quoting Steen, 144 Mont. at 66, 394 P.2d at 763).

Steen concerned a 1964 initiative to declare that the “Legislative Assembly of Montana

shall have no power to prohibit gambling in the State.” Steen, 144 Mont. at 63, 394 P.2d

at 762. The 1889 Montana Constitution established the legislature had “no power to

authorize lotteries, or gift enterprises for any purpose,” and instead directed that the

legislature “shall pass laws to prohibit the sale of lottery or gift enterprises in the state.”

Mont. Const. of 1889, art. XIX, § 2. Because the initiative there directly contradicted the

express mandate that “the Legislature could not constitutionally legalize lotteries” and

14 because the initiative was not “an amendment to the Constitution,” the Court upheld the

injunction against the initiative. Steen, 144 Mont. at 66-67, 394 P.2d at 764. In contrast to

the initiative in Steen that contradicted an express constitutional mandate, here the Court

allows a statute to preempt a fundamental constitutional right of the people, in dereliction

of the principle undergirding Montana’s Constitution that “[a]ll government originates with

the people, is founded upon their will only, and is instituted solely for the good of the

whole,” Mont. Const. art. II § 1, and that “Montana’s Constitution is a prohibition on

legislative power, rather than a grant of power.” Board of Regents, ¶ 11 (citing Board of

Regents v. Judge, 168 Mont. 433, 444, 543 P.3d 1323 (1975) (quoting Cottingham v. State

Board of Examiners, 134 Mont. 1, 11, 328 P.2d 907, 913 (1958) (overruled on other

grounds State ex rel. Ward v. Anderson, 158 Mont. 279, 293, 491 P.2d 868, 875 (1971)).

¶24 We have previously engaged in pre-election review of other proposed initiatives.

Such “[j]udicial intervention in referenda or initiatives prior to an election is not

encouraged.” Cobb v. State, 278 Mont. 307, 310, 924 P.2d 268, 269 (1996). “To

effectively preserve and protect the rights Montanans have reserved to themselves to

approve and reject by referendum legislative acts and proposed constitutional amendments,

pre-election judicial review is rare.” McDonald v. Jacobsen, 2022 MT 160, ¶ 14, 409

Mont. 405, 515 P.3d 777 (citing State ex rel. Boese v. Waltermire, 224 Mont. 230, 234,

730 P.3d 375, 378 (1986); Harper v. Greely, 234 Mont. 259, 167-68, 763 P.2d 650,

655-56 (1998)). “Placing a facially defective measure on the ballot,” thereby “‘conveying

the false appearance that a vote on the measure counts for something, when in fact the

measure is invalid regardless of how the electors vote,’” constitutes “a senseless ‘waste of

15 time and money for all involved.’” McDonald, ¶ 14 (quoting Reichert v. State, 2012 MT

111, ¶ 59, 365 Mont. 92, 278 P.3d 455).

¶25 However, Cottonwood’s ballot initiative is not “facially defective.” Indeed, the

Plaintiffs continue to pursue their challenge to § 7-1-111(21), MCA, as a violation of their

right to a clean and healthful environment under Article II, Section 3, and Article X,

Section 2, of the Montana Constitution. That claim is not before us today. Opinion,

¶ 5 n.2. If the question before us was purely one of local regulatory power in the face of

state law to the contrary, the analysis might merit a different conclusion. For example, a

party that did not want to implement the ballot initiative and argued it was inconsistent

with state jurisdictional and regulatory authority could initiate a proceeding to determine

whether the ballot initiative exceeded local government authority and, by doing so, not

interfere with the people’s power of initiative. Or, if Bozeman, so convinced of the validity

of the constraints on its self-government power imposed by § 7-1-111(21), MCA, refused

to implement a successful initiative, Cottonwood could challenge Bozeman’s inaction.

Under either scenario, state jurisdictional and regulatory authority could be considered in

the context of the local initiative without infringing on the people’s constitutional right of

initiative. Cottonwood’s constitutional claims that § 7-1-111(21), MCA, violates the right

to a clean and healthful environment notwithstanding, the Montana Constitution expressly

authorizes the legislature to constrain local governments in precisely that manner. Mont.

Const. art. XI, § 6. This method of state-wide governance is uncontested, either by the case

presented by Cottonwood or within this dissent. Instead, § 7-1-131(2)(f), MCA, attempts

a statutory restriction on the people’s constitutional right of initiative—threatening the

16 “fundamental premise . . . at the very root of the constitutional system of government.”

Regents, ¶ 19. Article V, Section 1, of the Montana Constitution is clear: the people reserve

to themselves the power of referendum and initiative—with no distinction between local

or statewide initiatives. The legislature “shall extend the initiative and referendum powers

reserved to the people by the constitution to the qualified electors of each local government

unit.” Mont. Const. art. XI, § 8 (emphasis added). The distinction between

self-government power and the people’s initiative power cannot be emphasized enough.

The Montana Constitution places unique limitations and ascribes unique powers upon both.

¶26 Further, our holding in Regents supports invalidating § 7-5-131(2)(f), MCA, as a

transgression by the legislature beyond its constitutionally mandated role. In Regents, this

Court held that the Montana Constitution conferred specific authority over the Montana

University System (MUS) to the Board of Regents (Board) which the legislature could not

usurp. Regents, ¶ 23. There, the legislature passed a bill (HB 102) prohibiting the Board

from “regulating the possession, transportation, or storage of firearms on MUS campuses.”

Regents, ¶ 23. At the time, the Board had determined “the presence of firearms on MUS

campuses presents an unacceptable risk to a safe and secure educational environment.”

Regents, ¶ 21. Because the Montana Constitution specifically vests the Board with “full

authority to determine the priorities of the MUS”—including campus safety—we

invalidated HB 102 as an impermissible “legislative directive” encroaching upon the

Board’s specific constitutional duties to manage the MUS. Regents, ¶ 23; see also Mont.

Const. art. X, § 9(2). We were careful to note that the Regents holding did not “elevate the

Board and MUS to a fourth branch of government or provide the Board veto power over

17 state laws it disagrees with.” Regents, ¶ 24. Rather, our holding was grounded in “where

legislative action infringes upon constitutionally granted powers of the Board to supervise,

coordinate, manage, and control the MUS, the legislative power must yield.”

Regents, ¶ 24.

¶27 Here, § 7-5-131(2)(f), MCA, likewise encroaches on a specific power reserved in

the Montana Constitution by the people. The people of Montana are not a presumed fourth

branch of government, but rather their popular sovereignty animates “all government of

right.” Mont. Const. art. II, § 1. Like the Board of Regents, the Montana Constitution

affords specific powers to the people and no reasonable rule of construction permits the

encroachment upon the powers constitutionally conferred on another. Regents, ¶ 19.

Unlike Regents, where the MUS or Board were not contemplated in the same section

granting legislative power to the legislature, the people’s right to initiative was in fact

included—and included immediately—within the very same provision enabling the

legislature. Mont. Const. art. V, § 1. The specific and narrow limitations on the people’s

initiative powers enshrined in the Montana Constitution simply do not contemplate

curtailing that power when the people seek to regulate “auxiliary containers.” The

Legislature’s encroachment upon the people’s right to initiative must therefore yield. “No

branch of government has, in default of its constitutional obligation to act, the power to, de

facto, write out of the constitution important rights and guarantees which the people sought

to secure to themselves.” Columbia Falls Elem. Sch. Dist. No. 6. v. State, 2005 MT 69,

¶ 54, 326 Mont. 304, 109 P.3d 257 (Nelson, J., concurring).

18 ¶28 As the District Court observed, the State’s argument that state statutes providing for

a statewide policy can restrict the people’s constitutional right of initiative is the equivalent

of stating that the Constitution may be amended by statute. Such a patently absurd assertion

upends elementary principles of constitutional supremacy. I dissent.

/S/ LAURIE McKINNON

Justice Ingrid Gustafson joins in the dissenting Opinion of Justice Laurie McKinnon.

/S/ INGRID GUSTAFSON