T. Kendrick v. A. Knudsen

2026 MT 39

• Court: Montana Supreme Court
• Decided: February 27, 2026
• Docket: OP 25-0858
• Status: Unpublished
• Author: Bidegaray

Opinion

02/27/2026

OP 25-0858 Case Number: OP 25-0858

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 39

THERESA KENDRICK, CLAUDIA CLIFFORD, and MONTANANS DECIDE,

Petitioners,

v.

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

Respondent.

ORIGINAL PROCEEDING: Petition for Declaratory Judgment

COUNSEL OF RECORD:

For Petitioners:

Raph Graybill, Rachel Parker, Graybill Law Firm, PC, Great Falls, Montana

For Respondent:

Austin Knudsen, Montana Attorney General, Michael D. Russell, George Carlo L. Clark, Assistant Attorneys General, Helena, Montana

For Amicus Curiae Campaign Legal Center:

Constance Van Kley, Van Kley Law PLLC, Missoula, Montana

For Amici Curiae Montana Federation of Public Employees, Service Employees International Union Local 775, Montana Conservation Voters, Wild Montana, Montana Public Interest Research Group, Catalyst MT, and American Civil Liberties Union of Montana:

James H. Goetz, Jeffrey J. Tierney, Cameron T. Clevidence, Goetz, Geddes & Gardner, P.C., Bozeman, Montana Nate McConnell, McConnell Law Offices, PLLC, Missoula, Montana

For Amici Curiae Missouri Voter Protection Coalition, League of Women Voters of Ohio, and Florida Decides Healthcare:

Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana

Decided: February 27, 2026

Filed:

__________________________________________ Clerk

2 Justice Katherine Bidegaray delivered the Opinion and Order of the Court.

¶1 Petitioners Theresa Kendrick, Claudia Clifford, and Montanans Decide (collectively

“Proponents”) seek review under § 13-27-605(5), MCA, of the Attorney General’s

determination that Ballot Issue 8 (“BI-8”) is legally insufficient because it violates Article

XIV, Section 11, of the Montana Constitution. Proponents request that we reverse the

legal-sufficiency determination and direct the Attorney General to prepare and forward

ballot statements to the Secretary of State within five days. Proponents also challenge the

Attorney General’s decision to append a fiscal statement to BI-8, asserting the fiscal note

does not indicate a fiscal impact. With leave of Court, amici Campaign Legal Center,

Montana Federation of Public Employees, et al., and Missouri Voter Protection Coalition,

et al., filed briefs in support of Proponents.

¶2 Section 3-2-202(3)(a), MCA, provides this Court original jurisdiction to review the

Attorney General’s legal-sufficiency determination. We accept original jurisdiction. We

conclude BI-8 constitutes a single constitutional amendment under Article XIV, Section

11, and the Attorney General lacked statutory authority to append a fiscal statement. The

petition is granted.

¶3 We address the following issues:

1. Whether BI-8 violates the separate vote requirement of Article XIV, Section 11, of the Montana Constitution.

2. Whether the Attorney General had authority to append a fiscal statement to BI-8.

¶4 BI-8 would amend Article II of the Montana Constitution by adding a new

Section 37 recognizing a fundamental right to exercise the powers of initiative and

3 referendum and limiting the government’s ability to deny or burden those rights.

BI-8 proposes the following language:

Section 37. Right to initiative and referendum. (1) The people have a fundamental right to exercise their powers of initiative and referendum under Article III and Article XIV. The government may not deny or burden this right unless justified by a compelling government interest achieved by the least restrictive means.

(2) This right guarantees impartial, predictable, transparent, and expeditious processes for proposing a ballot issue, qualifying a ballot issue for the ballot, and submitting a ballot issue to the qualified electors without interference from the government or the use of government resources to support or oppose the ballot issue. This right includes but is not limited to:

(a) proposing a ballot issue by submitting the full text of the ballot issue and proposed ballot statements, with the government modifying the proposed ballot statements only if they are not a true and impartial explanation expressed in plain, easily understood language;

(b) obtaining a determination regarding whether the ballot issue and ballot statements are legally sufficient for submission to the qualified electors prior to the petition being approved for circulation;

(c) the resolution of legal challenges to the determination made in subsection (2)(b) and the issuance of an approved petition for circulation within 90 days of the initial submission of the ballot issue to the government;

(d) reasonably ample time to gather signatures without unjustified burdens on signature gathering, on signature gatherers, or in the preparation or submission of signed petitions;

(e) verification of signatures and petitions without the invalidation of a signature or petition due to a technical or minor deficiency;

4 (f) the ability to withdraw one’s signature from a petition, with the deadline for a withdrawal being the same as the deadline for submitting signed petitions to the government;

(g) the resolution of legal challenges to the qualification of a ballot issue for the ballot prior to the deadline for finalizing ballots for the election; and

(h) submission of a ballot issue to the qualified electors in an impartial manner for their approval or rejection by a majority of those voting thereon at a single election.

Section 2. Self-executing. [This act] is self-executing.

Section 3. Effective date. [This act] is effective on approval by the electorate.

¶5 1. Whether BI-8 violates the separate vote requirement of Article XIV, Section 11, of the Montana Constitution.

Legal Standard

¶6 Article XIV, Section 11, provides, “If more than one amendment is submitted at the

same election, each shall be so prepared and distinguished that it can be voted upon

separately.” The provision serves two purposes: to prevent voter confusion and to prevent

logrolling—“combining unrelated amendments into a single measure which might not

otherwise command majority support.” Mont. Ass’n of Counties v. State, 2017 MT 267,

¶ 15, 389 Mont. 183, 404 P.3d 733 (“MACo”). At the same time, we must apply the rule

“in a manner that does not encumber the right of the people to amend the Constitution.”

MACo, ¶ 25. Courts therefore enforce Article XIV, Section 11, faithfully but not

expansively. The constitutional question is whether the proposal effects two or more

substantive amendments that are not closely related, MACo, ¶¶ 29-30, not whether it could

have been drafted differently.

5 ¶7 It is within the Attorney General’s authority to determine whether a proposed ballot

issue complies with the separate-vote provision of Article XIV, Section 11, of the Montana

Constitution. Monforton v. Knudsen, 2023 MT 179, ¶ 11, 413 Mont. 367, 539 P.3d 1078.

Exercising that authority, the Attorney General contends BI-8 violates the separate-vote

requirement because it effects multiple constitutional changes. Specifically, he asserts

BI-8: (1) imposes date-certain deadlines for adjudication of claims that conflict with the

judicial power and current constitutional treatment of pre-election challenges; (2) prohibits

“interference from the government or the use of government resources to support or oppose

the ballot issue,” thereby conflicting with the existing authority of public officials to speak

officially on ballot measures affecting their duties; (3) imposes “statute-like criteria

dictating the procedural submission of ballot issues,” which he argues conflicts with the

existing constitutional structure; and (4) creates a new fundamental right.

¶8 The Attorney General further maintains that these changes are not closely related.

He argues the government-resource prohibition is unrelated to the procedural protections

BI-8 establishes and that the Constitution separately addresses the initiative power, judicial

priority for pre-election disputes, and legislative authority to administer elections. In his

view, BI-8 impermissibly “rolls these issues together.”

¶9 Proponents respond that BI-8 is a single, comprehensive proposal that establishes

and safeguards one fundamental right—the people’s exercise of initiative and

referendum—and that its provisions operate together to make the ballot initiative process

timelier, more predictable, and less susceptible to governmental interference.

6 BI-8 and MACo’s “Closely Related” Inquiry

¶10 We begin by asking whether BI-8 would make two or more changes to the Montana

Constitution that are substantive and not closely related. If a proposed constitutional

amendment adds new matter to the Constitution, that proposition constitutes at least one

change. If the proposal has the effect of modifying an existing constitutional provision—

expressly or implicitly—it constitutes an additional change. MACo, ¶ 28.

¶11 BI-8 recognizes a fundamental right to exercise the powers of initiative and

referendum and enumerates components of that right, including procedural guarantees for

proposing, qualifying, and submitting ballot issues. The creation of this new constitutional

provision constitutes one amendment. The question is whether the remaining provisions

amount to additional, separate amendments that are not closely related. They do not.

¶12 In Montanans for Nonpartisan Cts. v. Knudsen, 2025 MT 268, 425 Mont. 51,

579 P.3d 536 (“MNC”), we held that a proposal containing two distinct constitutional

subjects—maintaining nonpartisan judicial elections and requiring that newly created

courts have elected judges—violated Article XIV, Section 11. Although the initiative

advanced a broad policy objective, its components addressed separate constitutional

questions on which voters were entitled to cast separate votes. MNC, ¶¶ 10, 15.

¶13 We applied the same framework in Transparent Election Initiative v. Knudsen,

2026 MT 2, __ Mont. __, 581 P.3d 1285 (“TEI”). There, the proposal would have both

eliminated corporate political spending and broadly altered the constitutional status of

“artificial persons.” We concluded that, even if the provisions were thematically related,

the measure required voters to accept sweeping constitutional changes beyond its stated

7 objective. TEI, ¶¶ 11, 14. TEI did not modify MACo. The governing inquiry remains

whether a proposal would make two or more substantive constitutional changes that are

not closely related. A singular purpose does not save a proposal that combines distinct

constitutional revisions; but neither does the theoretical ability to subdivide a measure

establish a violation.

¶14 Here, the Attorney General identifies the creation of a new fundamental right as one

change. The dispute concerns whether the provisions defining and safeguarding that right

constitute additional, separate amendments. Unlike the initiatives in MNC and TEI,

BI-8 does not combine independent constitutional subjects. Its provisions operate together

to define and protect a single constitutional right—the people’s exercise of initiative and

referendum. They are closely related components of one constitutional design.

Judicial Power and Separation-of-Powers Concerns

¶15 The Attorney General argues that BI-8 implicitly amends Article VII, Section 1,

by imposing timelines for resolving certain initiative-related disputes. Specifically, he

contends that Sections 2(c) and 2(g), which require resolution of certain legal challenges

within defined timeframes, intrude upon the judiciary’s inherent authority to control its

docket and therefore constitute a separate constitutional amendment. We disagree.

¶16 Article VII, Section 1, provides that “[t]he judicial power of the state is vested in

one supreme court, district courts, justice courts, and such other courts as may be provided

by law.” BI-8 does not alter that vesting of judicial authority. It does not divest courts of

jurisdiction, transfer adjudicative power to another branch, or reassign any core judicial

function. The timing provisions identified by the Attorney General do not redefine what

8 cases courts may hear or who may decide them; rather, they establish procedural

parameters governing the resolution of initiative-related disputes. The judicial power

remains vested in the courts.

¶17 The Constitution itself frequently shapes the manner in which courts exercise their

authority. Article IV, Section 7(2), requires courts to give priority to preelection

challenges. Other constitutional provisions prescribe standards of review or procedural

constraints that courts must apply.1 These directives operate within the judicial power;

they do not amend it. Constitutional provisions may define the framework within which

judicial authority is exercised without effecting a structural reallocation of that authority.

¶18 BI-8’s timing provisions function similarly. Whether those provisions would raise

interpretive or separation-of-powers questions if adopted is not the inquiry before us.

Under Article XIV, Section 11, the question is whether BI-8 effects multiple substantive

constitutional amendments that are not closely related. The existence of procedural

timelines does not transform BI-8 into a separate amendment of Article VII.

¶19 In Montanans Securing Reprod. Rights v. Knudsen, 2024 MT 54, 415 Mont. 416,

545 P.3d 45 (“MSRR”), we rejected the argument that creating an explicit constitutional

right necessarily amends other provisions that also protect related interests. “That the

rights and protections guaranteed by one provision of the Constitution may also be found

in other provisions is well-established.” MSRR, ¶ 13. The same principle applies here.

1 Article II, Section 10 (Right to Privacy), prescribes a specific standard of judicial review and Article III, Section 4(3) (Initiative), imposes a procedural constraint by creating an absolute bar on judicial inquiry into a petition’s sufficiency after an election. 9 As in MSRR, where the Attorney General attempted to isolate a regulatory limitation from

the right itself as a separate amendment, the provisions of BI-8 operate together to define

and safeguard a single constitutional right. Interaction with the judicial branch—whether

through standards, priorities, or procedural guardrails—is not synonymous with alteration

of the judicial power.

¶20 The proposed timelines may affect how courts adjudicate initiative-related disputes,

but their inclusion in the proposed amendment does not transform the proposal into an

amendment of Article II, Sections 16 or 17. In his dissent, Chief Justice Swanson contends

that BI-8 amends those provisions by establishing uniform timelines that may affect

judicial power and future litigants opposing a ballot measure. But the separate-vote inquiry

focuses on whether a proposal presents distinct constitutional subjects requiring separate

voter approval. Constitutional amendments frequently establish procedural parameters that

operate within the broader framework of judicial administration and litigant rights. That

such provisions may interact with existing guarantees of access to courts or due process

does not mean they constitute separate constitutional subjects. To hold otherwise would

mean that any constitutional amendment affecting adjudicative procedures necessarily

amends every related constitutional protection, an approach we have declined to adopt.

The timing provisions are components of the proposed initiative right and do not establish

a freestanding constitutional regime governing access to courts or due process independent

of that right. The judicial-power argument therefore does not establish that BI-8 effects a

separate constitutional amendment under Article XIV, Section 11.

10 Limits of Pre-Election Legal-Sufficiency Review

¶21 Several of the Attorney General’s arguments address not whether BI-8 violates

Article XIV, Section 11, but whether BI-8, if adopted, might withstand post-election

constitutional scrutiny. He relies on Coate v. Omholt, 203 Mont. 488, 662 P.2d 591 (1983),

where this Court invalidated statutory deadlines imposed by the Legislature on the

judiciary as violating separation of powers. But again, whatever the merits of potential

separation-of-powers arguments after adoption, that is not the inquiry before us. Under

§ 13-27-226, MCA, the Attorney General’s authority at this stage is limited to determining

whether a proposed measure complies with the separate vote requirement. See Monforton,

¶ 11. Questions regarding how BI-8 might be interpreted or applied in future litigation fall

outside that limited review. See MSRR, ¶ 15 (citing Monforton, ¶ 6); see also MSRR, ¶ 24

(“If [the proposed ballot initiative] is adopted, questions may arise as to its interpretation,

but this is true of the entire text of the Montana Constitution and its subsequent

amendments, and processes exist to resolve those questions accordingly.”). Because

Article XIV, Section 11, does not authorize pre-election resolution of speculative

post-adoption constitutional challenges, the Attorney General’s reliance on such concerns

does not establish that BI-8 effects a separate constitutional amendment.

Government Resources and the Integrity of the Initiative Process

¶22 The Attorney General argues that BI-8’s restriction on “the use of government

resources to support or oppose the ballot issue” is a separate constitutional subject and

contends it conflicts with the existing authority of public officials to speak on ballot

measures affecting their duties. We disagree.

11 ¶23 The government-resource limitation does not operate independently from the right

BI-8 establishes. BI-8 would recognize a fundamental right to exercise the powers of

initiative and referendum. Its prohibition on the institutional use of government resources

would function as a limitation on governmental interference with that right. The provision

does not purport to regulate the private speech of public officials; it addresses the

institutional use of governmental resources in a process constitutionally reserved to the

people. Again, any alleged conflict with other constitutional rights would be raised as a

substantive challenge post-election. As proposed, the provision establishes a limitation

against governmental interference with the right BI-8 would establish, not an independent

constitutional revision. It is not a separate substantive amendment that is not “closely

related” to the provision BI-8 would add to the constitution. MACo, ¶¶ 29-30.

¶24 The government-resource provision is located within and framed as part of the

guarantee of the right to exercise initiative and referendum and is framed as a protection

against governmental interference with that right. It does not establish a freestanding

campaign-finance regime or regulate the general conduct of elections. Rather, it delineates

one of the structural protections accompanying the constitutional right the proponents want

recognized.

¶25 The separate-vote requirement is concerned with whether a proposal combines

distinct constitutional subjects such that voters must trade one constitutional change for

another. That concern is not present here. A voter who supports additional constitutional

protections of the people’s initiative power is not compelled to accept an unrelated

12 constitutional revision. The government-resource limitation defines one of the protections

of the right itself.

¶26 To treat this provision as a separate amendment would substantially expand the

implied-effects doctrine beyond its constitutional purpose. Justice Rice’s dissent

characterizes the government-resource limitation as an express additional constitutional

change rather than an implied effect. But Article XIV, Section 11, does not hinge on

whether a provision is express or implied. The inquiry is whether the proposal presents

distinct constitutional subjects requiring separate votes. Under that approach, any

provision included to implement a proposed new constitutional right could then be

recharacterized as a second amendment merely because it constrains governmental actors.

Article XIV, Section 11, does not require constitutional proposals to be reduced to their

smallest conceivable components. And the provision does not purport to restrict the right

of public officials to express personal views.

¶27 Article XIV, Section 11, prohibits only the bundling of unrelated

constitutional changes that forces voters to trade one amendment for another. Here, the

government-resource limitation is part of the structural design of the proposal. Review of

a proposed ballot issue for legal sufficiency may not be based on how the provisions will

be interpreted and applied or anticipate a question of constitutional law that may arise if

the measure is passed. See MSRR, ¶ 15.

¶28 The Attorney General cites various constitutional provisions—Article V, Section 1;

Article VI, Section 4; Article X, Section 9; and Article XIII, Section 4, of the Montana

Constitution—describing the powers and duties of public officials. But those citations do

13 not establish that BI-8 effects a separate constitutional amendment for Article XIV,

Section 11, purposes. The Article XIV inquiry is narrower: whether BI-8 effects two or

more substantive constitutional amendments that are not closely related. See MSRR, ¶ 15

(citing Monforton, ¶ 12).

¶29 As in MSRR, where we rejected the argument that a constitutional provision

regulating abortion after viability constituted a separate amendment from the right itself,

the provisions of BI-8 operate together to establish and safeguard a single constitutional

right. They are qualitatively similar in effect and closely related in purpose. They do not

present separate constitutional subjects requiring separate votes.

¶30 In Montanans for Election Reform Action Fund v. Knudsen, 2023 MT 226, ¶ 19,

414 Mont. 135, 545 P.3d 618 (“MERAF”), the Attorney General determined the proposed

ballot initiative, which would have created a top-four primary election for certain offices,

implicitly amended Article IV, Section 3, of the Montana Constitution because it would

have restrained the Legislature’s ability to regulate primary elections. We rejected that

assertion, explaining, “Article IV, Section 3, grants the Legislature the authority to ‘provide

by law the requirements,’ and [the proposed initiative] would not affect the Legislature’s

authority to ‘provide by law.’” MERAF, ¶ 19. At issue here, Article VI, Section 4, and

Article X, Section 9, of the Montana Constitution, specify the duties of particular

officeholders are as “provided by law.” BI-8 would not affect those officeholders’

authority to perform their duties as “provided by law.”

¶31 Moreover, as noted above, questions as to future interpretations of BI-8, if adopted,

go beyond the scope of authority for pre-election legal sufficiency review that § 13-27-226,

14 MCA, grants the Attorney General. MSRR, ¶ 15. In his concurring Opinion in Cottonwood

Envtl. Law Ctr. v. Knudsen, 2022 MT 49, ¶ 28, 408 Mont. 57, 505 P.3d 837, Chief Justice

McGrath explained that the Attorney General “lacks the power to reject a proposed ballot

initiative based on an opinion about its constitutionality. Under our constitutional structure

and separation of powers, only the courts may make determinations about a law’s

constitutionality.” How the provision may be applied or interpreted thus does not provide

a basis for the Attorney General to find BI-8 legally insufficient.

Legislative Authority and the “Statute-Like Criteria” Argument

¶32 Finally, the Attorney General finds BI-8 legally insufficient because he determined

the proposed ballot issue imposes “statute-like criteria dictating the procedural submission

of ballot issues,” which conflicts with the existing structure and injects significant

confusion. In his brief in opposition to the petition, the Attorney General makes

substantively the same argument we rejected in MERAF. Noting that Article IV, Section 3,

of the Montana Constitution gives the Legislature the authority to “provide by law the

requirements for . . . administration of elections,” the Attorney General asserts this

authority “abuts the power of initiative and referendum” and includes a “statutory

framework [that] outlines issue submission, pre-circulation review, signature gathering,

legal challenges, and forms for appearance on the ballot.” The Attorney General argues

that, by creating procedural safeguards, BI-8 implicitly amends Article IV, Section 3,

because it removes some of the Legislature’s power to legislate.

¶33 We rejected a materially similar argument in MERAF. There, we held that

establishing a new constitutional election structure did not amend Article IV, Section 3,

15 merely because the Legislature would administer it. MERAF, ¶ 17. In that case, the

proposed ballot initiative would have created a new primary system that the Legislature

would have then administered, but the proposed ballot initiative would not have affected

the Legislature’s ability to do so. MERAF, ¶¶ 18-19. In the present case, Proponents argue

BI-8 functions no differently than MERAF’s proposed ballot initiative in this respect:

“the Legislature might change certain election-related laws to comply with BI-8 if it passes,

but the provision would have no effect on the Legislature’s power to do so.”

¶34 We agree with Proponents. BI-8 does not strip the Legislature of its authority to

provide by law for election administration under Article IV, Section 3, of the Montana

Constitution. It establishes constitutional standards that legislation must respect. That is

the ordinary operation of constitutional law. Constitutional rights frequently constrain

legislative action. The existence of such constraints does not create a second constitutional

amendment. It is the natural effect of constitutional change. Article IV, Section 7, of the

Montana Constitution, adopted by voters in 1990, contains separate subsections, part of

which include provisions for its implementation by the courts, the Secretary of State, and

the Legislature. These provisions were submitted as a single amendment.

¶35 Applying the MACo factors confirms that BI-8 is a single amendment. Each

provision addresses the exercise and protection of the initiative and referendum power.

And each provision is closely related to that stated protection. BI-8 adds one new section

to Article II. The initiative process has historically been treated as an integrated subject by

both the Constitution and the Legislature. The provisions collectively define and safeguard

one fundamental right.

16 ¶36 The Attorney General’s analysis relies primarily on hypothetical subdivisions and

possible constitutional interactions. But the separate vote rule is not triggered whenever

an amendment correlates with other provisions of the Constitution. Nearly every

constitutional amendment affects existing provisions. The implied-effects doctrine cannot

be extended so far that any structural interaction becomes a separate amendment. To do

so would transform Article XIV, Section 11, from a guard against logrolling into a broad

veto power over comprehensive reform. The Constitution does not support that result.

Conclusion on Separate Vote

¶37 BI-8 presents a single constitutional amendment under Article XIV, Section 11.

Although it would create a new fundamental right and defines the procedures to protect

and implement its exercise, those provisions are closely related components of one

constitutional design. BI-8 does not combine distinct, unrelated constitutional subjects in

a manner that forces voters to trade one amendment for another. The Attorney General’s

determination that BI-8 violates the separate-vote requirement is therefore reversed.

¶38 2. Whether the Attorney General had authority to append a fiscal statement to BI-8.

¶39 Section 13-27-226(4), MCA, authorizes the Attorney General to append a fiscal

statement “[i]f the fiscal note indicates a fiscal impact.”

Application

¶40 The fiscal note prepared by the Office of Budget and Program Planning reflects

zero fiscal impact across all listed funds and categories. The narrative portion includes a

statement that the Secretary of State “assumes” potential litigation costs. Under

17 § 13-27-226(4), MCA, the budget director prepares the fiscal note. The statute directs the

Attorney General to prepare a fiscal statement “if the fiscal note indicates a fiscal impact.”

Section 13-27-226(4), MCA (emphasis added). As in MSRR, ¶¶ 26-32, a speculative

assumption of potential future litigation does not constitute a determinable fiscal impact

within the meaning of § 13-27-226(4), MCA. Because the fiscal note did not indicate a

fiscal impact, the Attorney General lacked statutory authority to append a fiscal statement.

Conclusion on Fiscal Statement

¶41 Because the fiscal note did not indicate a fiscal impact, the appended fiscal statement

is invalid.

¶42 IT IS ORDERED that the petition for declaratory relief on original jurisdiction is

GRANTED and the Attorney General’s legal-sufficiency determination is reversed.

¶43 IT IS FURTHER ORDERED that the fiscal statement appended to BI-8 is stricken.

¶44 IT IS FURTHER ORDERED that the Attorney General shall prepare ballot

statements consistent with the applicable statutory requirements and forward the statements

to the Montana Secretary of State within five days of this Opinion and Order.

The Clerk is directed to send a copy of this Opinion and Order to all counsel of

record in this matter.

DATED this 27th day of February, 2026.

/S/ KATHERINE M. BIDEGARAY We Concur:

/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ INGRID GUSTAFSON

18 Justice Jim Rice, dissenting.

¶45 I generally agree with the Court’s analysis of the governing law, particularly, the

care it has taken to cabin or not further expand the implied-effects doctrine rooted in Mont.

Ass’n of Counties v. State, 2017 MT 267, 389 Mont. 183, 404 P.3d 733 (MACo),1 and also

agree with the distinction the Court makes between potential substantive legal problems

with BI-8 and the narrow issue appropriately before us today about whether BI-8 complies

with the separate vote requirement of Article XIV, Section 11, of the Montana Constitution

(“If more than one amendment is submitted at the same election, each shall be so prepared

and distinguished that it can be voted upon separately.”). Thus, I agree with the Court’s

decision to reject the portions of the Attorney General’s legal sufficiency determination

discussed in the Opinion and Order’s sections addressing judicial power, separation of

powers, legislative authority, and statute-like criteria. See Opinion and Order, ¶¶ 15-20,

32-36. With regard to those issues, I believe the ten paragraphs of BI-8 are closely-related

provisions that would further the unified purpose of guaranteeing “expeditious processes

for proposing a ballot issue, qualifying a ballot issue for the ballot, and submitting a ballot

issue to the qualified electors[,]” and which, therefore, satisfy the single-vote requirement.

BI-8, Section 37(2). However, I must disagree that the language in BI-8 placing a new

restriction upon the exertion of government influence or the use of government resources

1 While I would be open to considering whether the implied-effects analysis of MACo should be revisited, I believe this case can be resolved without doing so. See Brief of Amicus Curiae Campaign Legal Center, p. 22 (“As separate-vote challenges are now made to nearly every proposed constitutional amendment, the consequences of the implied effects test are impossible to ignore.”). 19 “to support or oppose the ballot issue”—a restriction that even Proponents agree would

necessarily extend beyond the new ballot issue approval procedure and include the

subsequent electioneering process—is likewise closely related. BI-8, Section 37(2). In my

view, this restriction upon the involvement by the government, including upon election

campaigning, changes current law and is an altogether different issue that requires a

separate vote under Article XIV, Section 11, of the Montana Constitution.

¶46 Notable to me, the Proponents’ briefing against the Attorney General’s

determination on this issue does not dispute that BI-8 does this additional thing, but rather

argues that voters would necessarily want to do both things, which is essentially a practical

or policy contention that is irrelevant to our inquiry:

[I]t is hard to conceive of voters desiring to establish the initiative and referendum powers as a fundamental right that may not be unjustifiably denied or burdened by the government, but also desiring to permit the government to use taxpayer-funded resources to influence the outcome of ballot issue elections.

Petition for Declaratory Relief on Original Jurisdiction, p. 15 (emphasis added). Whether

or not voters would indeed also want to restrict the power of government “to influence the

outcome of ballot issue elections,” the critical concern for purposes of our inquiry is that

such a restriction upon the government is included within BI-8 and is an altogether different

concept than the adoption of an expeditious ballot issue approval process. See Petition for

Declaratory Relief on Original Jurisdiction, p. 15. It thus requires a separate vote.

¶47 As the Attorney General argues, under current law, public officials are authorized,

in compliance with statute, to support or oppose ballot initiatives, and we should assume

that the Legislature thus believed that officials perform a valuable public service by

20 advising the public of their positions on such issues. In Sheehy v. Comm’r of Political

Practices for Mont., 2020 MT 37, 399 Mont. 26, 458 P.3d 309, we rejected the contention

that Regent Martha Sheehy had violated the Ethics Code2 by making statements in support

of the statewide 6-Mill Levy that was on the ballot for financial support of Montana higher

education, reasoning:

Regent Sheehy’s statements were authorized by law as they were inherently part of her constitutional and statutory duties as a Board of Regents member. Implied in the Board of Regents’ broad powers to “supervise, coordinate, manage, and control the [MUS],” is the power to do all things necessary and proper to the exercise of its general powers which would necessarily include support of a major financing source for the MUS. . . . Accordingly, supporting and discussing the 6-Mill Levy, a major financing source for the MUS, is inherently an action authorized by law and properly incidental to Regent Sheehy’s duties.

Sheehy, ¶ 29. BI-8 proposes to restrict the government from “support[ing] or oppos[ing]

the ballot issue,” and thus will alter current law governing the role of public officials

regarding these elections. Again, this is something unrelated to BI-8’s new ballot issue

approval procedure.

¶48 The Court’s analysis on this point is unavailing. It first proposes that approving the

Attorney General’s argument on this issue “would substantially expand the implied-effects

doctrine.” Opinion and Order, ¶ 26. However, the new restriction upon the government is

not an implied effect, but rather a prohibition set forth expressly in the text of BI-8. An

implied-effects analysis is not required—this is an additional express change. The Court

2 The Ethics Code provided that a public employee may not use “public time, facilities, equipment, supplies, personnel, or funds to solicit support for or opposition to . . . the passage of a ballot issue unless the use is: (i) authorized by law; or (ii) properly incidental to another activity required or authorized by law . . . .” Section 2-2-121(3)(a), MCA (emphasis added). See Sheehy, ¶ 28. 21 reasons that the Attorney General’s argument would mean that “[a]ny provision included

to implement a proposed new constitutional right could then be recharacterized as a second

amendment merely because it constrains governmental actors.” Opinion and Order, ¶ 26.

But again, no recharacterization is necessary here—BI-8 contains language in its text that

expressly constrains government actors, which cannot be swept away by labeling it as a

mere recharacterization of other language. Then, the Court reasons that the provision “does

not purport to restrict the right of public officials to express personal views.” Opinion and

Order, ¶ 26. That point may well be arguable, since no such parameter is found within the

text, but it is ultimately irrelevant; it is clear that BI-8 contains a new prohibition on

government involvement, and even if that prohibition applies only to “official,” as opposed

to “personal,” views of public officials, it is nonetheless unrelated to the new ballot issue

approval procedure proposed in BI-8.

¶49 I believe our decision here is required by Montanans for Nonpartisan Courts v.

Knudsen, 2025 MT 268, 425 Mont. 51, 579 P.3d 536 (MNC), wherein we concluded that

the addition of the provision requiring that newly created courts be served by elected judges

was a separate purpose from requiring nonpartisan judicial elections which required a

separate vote. See MNC, ¶ 15.

¶50 I would affirm the Attorney General’s rejection of BI-8 on this ground, and thus

dissent from the Court’s Opinion and Order.

/S/ JIM RICE

Chief Justice Cory J. Swanson joins the Dissenting Opinion of Justice Jim Rice.

/S/ CORY J. SWANSON

22 Chief Justice Cory J. Swanson, dissenting.

¶51 I join Justice Rice’s Dissent and write separately to articulate my concern the

proposed Ballot Issue 8 (BI-8) impermissibly contains constitutional amendments beyond

the proposed initiative power amendment. It amends the judicial power and the

constitutional rights of litigants protected in Article II, Sections 16 and 17, of the Montana

Constitution. BI-8 therefore contains multiple amendments that are not closely related. I

would affirm, in part, the Attorney General’s determination.

¶52 BI-8 contains two provisions amending the judicial power and the constitutional

rights of litigants, as follows:

(2)(c) the resolution of legal challenges to the determination made in subsection (2)(b) and the issuance of an approved petition for circulation within 90 days of the initial submission of the ballot issue to the government; and

. . .

(2)(g) the resolution of legal challenges to the qualification of a ballot issue for the ballot prior to the deadline for finalizing ballots for the election.

¶53 Each of these provisions creates a different date-certain deadline for adjudication of

cases, and at two different stages. The first deadline addresses the preliminary assessment

of whether a proposed ballot issue complies with single subject and ballot statement

provisions, which is the stage of litigation we are currently addressing for BI-8. The second

deadline addresses a later stage of the ballot qualification process. That is the stage after

the ballot issue and statement have been approved, the proponents have conducted

signature-gathering and have now presented the ballot and petitions for approval and

23 placement on the ballot. Each stage of this process, and each potential challenge, presents

its own issues and arguments to be resolved. So far, so good.

¶54 But the proponents have established in each stage a mandatory deadline for

completion of any challenges and any court proceedings addressing the challenges. This

certainly makes sense from a proponent’s point of view. But doing so necessarily affects

the judicial power because the Court has no control over how long it may take the various

disputes to reach the Court, no control over how complex and contentious the issues may

be, and no control over the susceptibility of the challenges to resolution. Yet the ballot

language mandates that no matter how Gordian the legal knot may be, the court proceeding

shall be completed within 90 days of the initial submission of the ballot issue to the

government (not submission to the Court) for the pre-signature phase, and not later than

the ballot submission deadline for the post-signature phase (no matter when the dispute

was submitted to the Court). This judicial deadline curtails the judicial power and therefore

constitutes an additional constitutional amendment. MACo, ¶ 28.

¶55 The same language also amends the Constitution’s protection of the legal rights of

other individuals, presumably the erstwhile ballot opponents. First, the public has a

common law and constitutional right to access the courts. “Courts of justice shall be open

to every person, and speedy remedy afforded for every injury of person, property, or

character. . . . Right and justice shall be administered without sale, denial, or delay.” Mont.

Const. art. II, § 16. This is not a fundamental right to full and unencumbered access to the

courts, and that is not my point. Meech v. Hillhaven W., Inc., 238 Mont. 21, 26, 776 P.2d

488, 491 (1989) (Article II, Section 16, does not create a fundamental right) (overruling

24 contrary cases). “However, the right to access Montana’s legal system is not absolute, and

may be limited with the showing of a rational relationship to a legitimate state interest.”

Stokes v. First Am. Title Co. of Montana, Inc., 2017 MT 275, ¶ 3, 389 Mont. 245, 406 P.3d

439, (citations omitted). My point is the language in BI-8 is necessarily a curtailment and

amendment of a future ballot opponent’s right to access the courts. Perhaps it may be a

constitutionally permissible limitation, but it is a new limitation nonetheless, and therefore

an additional amendment beyond the rights of the proponents to enjoy the initiative power.

¶56 The same argument applies to an opponents’ rights to due process. “No person shall

be deprived of life, liberty, or property without due process of law.” Mont. Const., art. II,

§ 17. The lawsuit-limiting language quoted above presumes the existence of an opponent

to a proposed ballot measure. The opponent’s right to due process guarantees his or her

access to courts to resolve objections to the proposed ballot measure, or objections to the

measure’s qualification for submission to the electors. “The interest to be protected by due

process of the law is the opportunity to be heard.” Byrd v. Columbia Falls Lions Club,

183 Mont. 330, 332, 599 P.2d 366, 367 (1979).

¶57 The opportunity to be heard constitutes the gravamen of many due process claims;

how much opportunity does the Constitution require? The answer is generally a matter of

appropriate opportunity and procedure as fairness demands for the occasion. “Although

the phrase due process cannot be precisely defined, the phrase expresses the requirements

of fundamental fairness.” City of Missoula v. Mountain Water Co., 2016 MT 183, ¶ 25,

384 Mont. 193, 378 P.3d 1113 (citations and quotations omitted). This requires courts to

be flexible and afford procedural protections appropriate to each case. State v. Moore,

25 2018 MT 110, ¶ 13, 391 Mont. 256, 417 P.3d 328. A due process claim may be raised by

an allegation of legal process abridgment, ISC Distributors, Inc. v. Trevor, 273 Mont. 185,

191, 903 P.2d 170, 173 (1995), or by a court’s rigid and unyielding procedural conduct

which tramples a litigant’s rights. “Due process is flexible and calls for such procedural

protections as the particular situation demands. Indeed, the very nature of due process

negates any concept of inflexible procedures universally applicable to every imaginable

situation.” State v. West, 2008 MT 338, ¶ 32, 346 Mont. 244, 194 P.3d 683 (citations and

quotations omitted).

¶58 The proponents of BI-8 advance a provision which contains inflexible and

universally-applicable court resolution deadlines for every single ballot issue in the future

of Montana. But on the other side of every ballot issue lawsuit is an opponent who enjoys

a due process right to a fair procedure based on that case’s circumstances, so the matter can

be fully adjudicated by a court. Without going to the merits of this proposed amendment,

because perhaps it is justified in this context, we must recognize the proposed language

does amend the due process rights of ballot opponents, and therefore it is another proposed

amendment.

¶59 The Opinion and Order cites MSRR for the proposition that BI-8 does not create

multiple amendments vis-à-vis judicial proceedings because “the provisions of BI-8

operate together to define and safeguard a single constitutional right.” Opinion and Order,

¶ 19. But that omits consideration of the court contest over the legality of a proposed ballot

initiative; such a proceeding implicates not only the constitutional right of initiative, but

also the constitutional rights of access to the courts and due process of law. It is therefore

26 distinguishable from MSRR, because BI-8 does not merely further define the judicial

priority language in the Constitution (they are correct it does that), but it also goes on to

amend the judicial power and amend individual rights of other litigants. MSRR presented

no such double-amendment affecting other individuals’ rights. MSRR, ¶ 13.

¶60 The proposed language makes any court proceeding hostage to the conduct of

multiple government and proponent/opponent actors before it reaches the Court. BI–8

Section 2(c) starts the clock upon the issue’s submission to the government. The Secretary

of State and Legislative Services Division must then review the submission.

Sections 13-27-216(1)–(3), -218(1)–(3), -225, MCA. Then the measure goes to the budget

director for fiscal review and then to the Attorney General for legal sufficiency review.

Sections 13-27-216(4)–(6), -218(4)–(6), -226, MCA. If determined legally insufficient,

proponents then may challenge the determination in this Court. Mont. Const. art IV, § 7;

§ 13-27-605, MCA. The time that each stage of review takes is not insignificant. The

longer each review stage takes subtracts time from later stages with the ultimate burden

falling to the opponents, and the court’s consideration being curtailed beyond its own

discretion and necessity.

¶61 The current constitutional mandate that courts give “priority” to preelection ballot

challenges, Article IV, Section 7(2), or the post-election prohibition on legal challenges to

sufficiency of a petition, Article III, Section 4(3), are correctly construed as “procedural

constraints” upon the judicial power. Opinion and Order, ¶ 17. So are the provisions in

BI-8 quoted above. That alone is not the objection. The objection is that they are

constitutional amendments in addition to the establishment of a new fundamental right of

27 initiative in the proposed ballot language. They are not just measures susceptible to the

“theoretical ability to subdivide a measure,” Opinion and Order, ¶ 13. They are distinct

and separate amendments of the judicial power and individual rights, that “require[] voters

to accept sweeping constitutional changes beyond its stated objective.” Opinion and Order,

¶ 13 (citing TEI, ¶¶ 11, 14).

¶62 Just as in MNC, we invalidated a proposed ballot issue that contained two distinct

constitutional questions—partisan judicial elections and mandating elections of all future

judges, MNC, ¶¶ 10, 15—here we should invalidate a proposed ballot issue that establishes

and safeguards a proponent’s initiative rights while also amending the judicial power and

constitutional rights of opponents. Those are (at least) two different issues, requiring the

voters to make separate choices on each. Voters could easily favor the initiative right and

procedural protections while opposing amendments to legal review and opponents’ access

to courts. They present two different questions, and two different amendments. The Court

errs today in permitting the proponents to logroll them together into a single question.

¶63 Limiting the power of this Court to control the timeline of ballot issue cases, and

amending the individual rights of litigants to challenge the measures, are unrelated and

unnecessary to the purpose of ensuring the government refrain from burdening the right of

the people to exercise their powers of initiative and referendum.

¶64 I respectfully dissent and would affirm in part the Attorney General’s disallowance

of BI-8 on the grounds that it constitutes multiple constitutional amendments.