J. Meyer v. Knudsen

2022 MT 109

• Court: Montana Supreme Court
• Decided: June 2, 2022
• Docket: OP 22-0219
• Status: Unpublished

Opinion

06/02/2022

OP 22-0219 Case Number: OP 22-0219

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 109

JOHN MEYER,

Petitioner,

v.

AUSTIN KNUDSEN, in his official capacity as MONTANA ATTORNEY GENERAL,

Respondent.

ORIGINAL PROCEEDING: Proposed Constitutional Initiative 33

COUNSEL OF RECORD:

For Petitioner

John Meyer, Self-Represented, Cottonwood Environmental Law Center, Bozeman, Montana

Holly Seymour, Attorney at Law, Missoula, Montana

For Respondent:

Austin Knudsen, Montana Attorney General, David M.S. Dewhirst, Solicitor General, Timothy Longfield, Assistant Attorney General, Helena, Montana

Decided: June 9, 2022

Filed: c ir-641.—if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion and Order of the Court.

¶1 Petitioner John Meyer is a proponent of a potential ballot initiative, I-33, to be put

to a state-wide vote during the November 2022 elections. Such initiatives undergo a

statutory process of review and approval to secure their validity prior to collecting

signatures that would qualify them for placement on the ballot. See §§ 13-27-301 to -317,

MCA. One aspect of that process involves a review by the Attorney General of the

proposed ballot issue to determine its “legal sufficiency.” Section 13-27-312, MCA. The

Attorney General rejected I-33 based on a finding of legal deficiency. Petitioner has filed

an original action in this Court to seek review of the Attorney General’s determination, as

permitted by § 13-27-316, MCA. This Opinion and Order addresses the following issue:

Was the Attorney General’s determination of I-33’s legal deficiency correct?

¶2 We conclude that the Attorney General wrongly rejected the proposed ballot

initiative in his sufficiency review. We agree, however, that Petitioner cannot challenge

the constitutionality of state statutes in a proceeding filed under § 13-27-316, MCA, and

we therefore decline to consider Petitioner’s additional arguments unrelated to the legal

sufficiency determination.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Montana Constitution provides mechanisms for the public to enact laws by

initiative and to amend the Constitution itself by initiative. Article XIV, Section 9, of the

Montana Constitution provides the right of constitutional amendment by initiative:

“Petitions including the full text of the proposed amendment shall be signed by at least

2 ten percent of the qualified electors of the state”—including ten percent from “each of

two-fifths the legislative districts”—to qualify for appearance on the ballot.

¶4 Petitioner seeks to qualify I-33 for placement on the ballot under this provision.

The initiative would amend the provision in the Montana Constitution that provides a

guarantee of educational opportunity. Article X, Section 1(3), of the Montana

Constitution says that “[t]he Legislature shall provide a basic system of free quality public

elementary and secondary schools. . . . It shall fund and distribute in an equitable manner

to the school districts the state’s share of the cost of the basic elementary and secondary

school system.” I-33, if approved by the voters, would amend that language to include

“prekindergarten” education in this directive and guarantee. The phrases above would be

modified to read “free quality public prekindergarten, elementary and secondary schools”

and “basic prekindergarten, elementary and secondary school system.”

¶5 The Montana Legislature has enacted statutes that govern the form of initiatives

and the procedures for ensuring their validity prior to signature collection. See Title 13,

chapter 27, MCA. The process that initiative proponents must follow to qualify their

petition for placement on the ballot involves first submitting the proposed text to the

Secretary of State, who then passes the text on to the Legislative Services Division.

Section 13-27-202(1), MCA. Staff at the Legislative Services Division will review the

text for clarity and for conformity with bill drafting requirements and sections of law

governing the form of initiatives. Section 13-27-202(2), MCA. The next step is a

screening by the Attorney General. The Secretary of State sends a copy of the proposed

ballot issue to the Attorney General for a “determination as to the legal sufficiency of the

3 issue and for approval of the petitioner’s ballot statements.” Section 13-27-202(4), MCA.

Only following the Attorney General’s approval may the Secretary of State pass along to

the proponents a valid petition to circulate and gather sufficient signatures to qualify for

the ballot. If the Attorney General rejects the petition on legal sufficiency grounds, the

measure will not be placed on the ballot unless resubmitted pursuant to the constitutional

and statutory requirements. See §§ 13-27-202(4), -202(5)(f), -312(10)(c), MCA.

¶6 Section 13-27-316, MCA, permits proponents of a ballot issue to appeal to this

Court to review the Attorney General’s action under § 13-27-212, MCA. To do so, they

must file an original proceeding within 10 days of the Attorney General’s determination.

Section 13-27-316(1), MCA. This Court must resolve the matter with haste. Section

13-27-316(3)(c)(i), MCA; Mont. Const. art. IV, § 7(2).

¶7 Here, after the Secretary of State forwarded I-33 to the Attorney General for

review, the Attorney General rejected it as legally deficient. The Attorney General

decided that a constitutional provision limiting the scope of laws passed by initiative

should also extend to constitutional amendments passed by initiative. Article III, Section

4, of the Montana Constitution addresses the right of the people to “enact laws by initiative

on all matters except appropriations of money and local or special laws.” In the Attorney

General’s legal sufficiency review, he determined that the Article III, Section 4 restriction

against matters appropriating money should also apply to constitutional amendment

initiatives. The Attorney General went on to determine that I-33 would constitute an

appropriation of money, and he rejected the measure on that ground. Petitioner appeals

4 to this Court, under § 13-27-316, MCA, and argues that the Attorney General’s

determination was incorrect and overstepped the authority of that office.

¶8 At the Court’s direction, the Attorney General filed a response to Meyer’s petition

on May 16. The response pointed out among other things that Meyer had neglected to

serve the Secretary of State, as required by § 13-27-316(3)(a), MCA. We ordered Meyer

to serve his petition as the statute requires, and Meyer filed a new certificate of service on

May 24, 2022, reflecting service on both the Attorney General and Secretary of State.

DISCUSSION

¶9 Meyer first argues that the Attorney General violated the separation of powers

doctrine by rejecting I-33 on the basis of its substantive constitutionality, a question

committed to the authority of the judicial branch. As a preliminary matter, we agree with

the Attorney General that Meyer’s argument misapprehends the nature of the Attorney

General’s review. On review for legal sufficiency, the Attorney General may determine

whether the petition for a ballot issue complies with the statutory and constitutional

requirements “governing submission of the proposed issue to the electors.” Section

13-27-312(8), MCA. See also Montanans Opposed to I-166 v. Bullock, 2012 MT 168,

¶ 6, 365 Mont. 520, 285 P.3d 435. Meyer asks the Court to hold unconstitutional the

provisions of § 13-27-312(8), MCA, that provide substantive review of initiatives. But

the Attorney General in this case did not determine whether the substantive provisions of

a ballot measure, if passed by the electorate, would violate the Constitution. He

determined whether the measure constituted an appropriation. If it did, it would be outside

5 the scope of constitutional requirements governing submission to the electors and could

properly be rejected.

¶10 We accordingly turn to the question whether the Attorney General’s determination

of I-33’s legal deficiency was correct.

¶11 The prohibition against appropriation-by-initiative contained in Article III, Section

4, of the Montana Constitution applies in the context of when “[t]he people may enact

laws” through this process. Mont. Const. art. III, § 4(1). The limitation is not present in

the Article XIV, Section 9 constitutional provision providing the right to amend the

Constitution by initiative. Petitioner’s proposal here, I-33, would be a constitutional

amendment and thus operates outside the appropriation restriction that the Constitution

explicitly applies to legislation by initiative.

¶12 We conclude that this distinction resolves the issue. There are inherent differences

between constitutional provisions and legislation, and only the latter may direct an

appropriation. As we have long held, an appropriation is “an authority from the

law-making body in legal form to apply sums of money out of that which may be in the

treasury in a given year, to specified objects or demands.” State ex rel. Bonner v. Dixon,

59 Mont. 58, 78, 195 P. 841, 845 (1921) (emphasis added), overruled on other grounds,

Board of Regents v. Judge, 168 Mont. 433, 447, 543 P.2d 1323, 1331 (1975). An

appropriation, therefore, is something within the prerogative of the Legislature, and

extends to “all [] public operating funds of state government.” Judge, 168 Mont. at 446,

543 P.2d at 1331. We have previously noted “a long line of cases” making clear that

6 “‘appropriation’ refers only to the authority given to the legislature to expend money from

the state treasury.” Nicholson v. Cooney, 265 Mont. 406, 415, 877 P.2d 486, 491 (1994).

¶13 The many articles of the Montana Constitution, by their very nature, cannot

constitute appropriations—they do not dictate the expenditure of specific amounts of

money for specific purposes, as might legislative acts, but instead reflect the rights,

obligations, structure, and goals dictating how the Montana government functions and the

people’s rights it protects. Constitutional provisions do not “expend money from the state

treasury.” Nicholson, 265 Mont. at 406, 877 P.2d at 491. Instead, the document only

provides the framework through which the Legislature may do so. By its nature, an

appropriation is strictly a legislative function. The limitation in Article III, Section 4

makes clear that although the public has a right to carry out certain legislative acts by

initiative, the Constitution limits that right in certain ways. These initiatives may address

“all matters except appropriations of money or local or special laws.” Mont. Const. art.

III, § 4(1). The public also has a right to amend the Constitution by initiative, and that

right contains no such limitation because constitutional amendments reflect broader legal

structures that, as pertinent here, define or circumscribe the authority of the branches of

government.

¶14 The Attorney General argues that the “appropriation” restriction in Article III,

Section 4 should be read to also extend to the separate process in Article XIV, Section 9,

because both refer to the power of “initiative” and because the broad, abstract concept of

“law” may also include constitutional law. The Attorney General reasons that the word

“laws” in the phrase “enact laws” must also include constitutional amendments. But the

7 structure of the Constitution and the language of its relevant provisions do not support this

reading. Article III, Section 4 is specific to the enactment of law by initiative, and an

appropriation of money, as noted above, may be made only by law, not by the

Constitution. The mere fact that a broadly applicable word like “law” may have

multifaceted meanings in different contexts is not a sufficient reason to interpret the

Constitution contrary to its plain text. The Constitution has one provision regarding when

the people may “enact law” and a separate one regarding when the people may “propose

constitutional amendments.” The word law in the former provision need not swallow the

entirely separate process governed by the latter.

¶15 Our conclusion that the limit in Article III, Section 4 does not extend to the separate

provision in Article XIV, Section 9 comports with our past recognition of the difference

between constitutional provisions regarding legislation and those regarding constitutional

amendments. In Mont. Ass’n of Counties v. State, 2017 MT 267, 389 Mont. 183, 404 P.3d

733, a party argued that the single-subject rule that Article V, Section 11(3), of the

Montana Constitution applies to legislation should also extend to proposed constitutional

amendments as governed by Article XIV. We disagreed. “[T]he act of amending the

constitution is significantly different from enacting or enabling legislation,” we noted.

Mont. Ass’n of Counties, ¶ 19 (quoting Marshall v. State, 1999 MT 33, ¶ 22, 293 Mont.

274, 975 P.2d 325). “[T]he Legislature has no control over a constitutional amendment

proposed by initiative. It follows that Article V, governing the way in which the

Legislature prepares and proposes bills, does not also govern constitutional amendments

raised by initiative, a power lying exclusively with the people and provided for in Article

8 XIV.” Mont. Ass’n of Counties, ¶ 21. The same logic applies to the distinction between

Article III and Article XIV. Article III limits the power to “enact laws,” in the

Legislature’s stead, by initiative, and reserves certain matters to the Legislature. Article

XIV discusses a separate, exclusive power by which the people may amend the

Constitution.

¶16 The Attorney General’s determination also explained his opinion that I-33 would

constitute an appropriation under the rules that apply to legislative enactments by

initiative. In light of our discussion above, we find it unnecessary to further consider this

analysis. Because the Attorney General’s legal sufficiency determination was predicated

on an erroneous reading of the Constitution, we conclude that the Attorney General’s

decision was incorrect, and we reverse the determination that I-33 is legally deficient.

¶17 Finally, we note that Petitioner devoted much of his briefing to argument about the

constitutionality of other statutes, such as the requirement that signature-gatherers be

residents of Montana under § 13-27-102(2)(a), MCA. Our jurisdiction in an original

proceeding filed pursuant to § 13-27-316, MCA, is limited to “challenging the adequacy

of the statement or the attorney general’s determination and requesting the court to alter

the statement or modify the attorney general’s determination.” Section 13-27-316, MCA.

We do not have jurisdiction in this action to consider broader, only tangentially related

constitutional challenges to other provisions of law, and we decline to address these

additional matters argued by Petitioner.

¶18 We also decline Petitioner’s request to extend his deadline for collecting and

submitting signatures to qualify I-33 for the ballot. The statutory deadlines that govern

9 petition submission are abundantly clear, and the statutory scheme provides and accounts

for ample time for matters like the legal sufficiency review and challenge.

See §§ 13-27-104, -202, -301, MCA (providing a pre-election deadline for submitting

petitions, permitting petition circulation up to a year prior to that date, and permitting

signature submission up to nine months prior to that date). Petitioner could have avoided

the challenge of his present compressed timeline by simply preparing his proposed ballot

initiative much sooner than he did, and the avoidable time-crunch he may now face is an

insufficient ground for this Court to override numerous explicit statutory deadlines.

ORDER

¶19 IT IS ORDERED that Petitioner’s request to overrule the Attorney General’s

legal-sufficiency determination is GRANTED. The Attorney General’s rejection of I-33

is vacated, and the Secretary of State is directed to return the proposal to Petitioner for the

purpose of gathering signatures.

¶20 The Clerk is directed to provide notice of this Opinion and Order to all counsel of

record and the Montana Secretary of State.

DATED this 2nd day of June, 2022.

/S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER /S/ LAURIE McKINNON /S/ DIRK M. SANDEFUR /S/ JIM RICE