Cottonwood Envtl. Law Ctr. v. Knudsen

• Decision Date: 15 March 2022
• Docket Number: OP 22-0076
• Citation: 408 Mont. 57,505 P.3d 837
• Parties: COTTONWOOD ENVIRONMENTAL LAW CENTER, Gallatin Wildlife Association, John Phillip Meyer, and Montana Rivers, Petitioners, v. Austin KNUDSEN, in His Capacity as Montana Attorney General, Respondent.
• Court: Montana Supreme Court

408 Mont. 57

505 P.3d 837

COTTONWOOD ENVIRONMENTAL LAW CENTER, Gallatin Wildlife Association, John Phillip Meyer, and Montana Rivers, Petitioners,

v.Austin KNUDSEN, in His Capacity as Montana Attorney General, Respondent.

OP 22-0076

Supreme Court of Montana.

Submitted on Briefs: March 1, 2022

Decided: March 15, 2022

For Petitioners: John Meyer, Cottonwood Environmental Law Center, Bozeman, Montana

For Respondent: Austin Knudsen, Montana Attorney General, Kristin Hansen, Lieutenant General, David M.S. Dewhirst, Solicitor General, Derek Oestreicher, General Counsel, Helena, Montana, Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana

For Amicus Curiae: Neil G. Westesen, Dale Schowengerdt, Crowley Fleck PLLP, Helena, Montana, Mark Taylor, Jessie Luther, Taylor Luther Group PLLC, Helena, Montana

Chief Justice Mike McGrath delivered the Opinion and Order of the Court.

¶1 Petitioners are proponents of a potential ballot initiative, I-24, 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" and to approve its language. Section 13-27-312, MCA. For I-24, the Attorney General both revised the proposed ballot statement and rejected the measure based on a finding of legal deficiency. Petitioners have filed an original action in this Court to seek review of the Attorney General's determinations, as permitted by § 13-27-316, MCA. We have issued a separate Order concerning the initiative's ballot language. This Opinion and Order addresses the following issues:

Issue One: Did Petitioners timely file their challenge?

Issue Two: Was the Attorney General's determination of I-24's legal deficiency correct?

Issue Three: Was the Attorney General's fiscal impact statement inadequate?

¶2 We hold that Petitioners’ challenge was timely and that the Attorney General wrongly rejected the proposed ballot initiative in his sufficiency review. We decline to address the fiscal impact statement as the issue is not properly before this Court.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Article III, Section 4, of the Montana Constitution guarantees the public the right to "enact laws by initiative." In addition to minor limitations on the content of such initiatives, this constitutional provision describes factors that will qualify an initiative petition for passage, and it requires petitions to be filed with the Secretary of State well in advance of an election. To facilitate this process, the Montana Legislature has enacted a series of statutes that govern the form of initiatives and the procedures for ensuring their validity prior to signature collection. See Title 13, chapter 27, MCA.

¶4 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 Legislative Services Division then communicates with the proponents of the initiative about any recommended revisions. Section 13-27-202(2)(b)-(c), MCA. As long as the proponents do not add material or substantively change any of the language from the Legislative Services Division, the Secretary of State then accepts the petition. Section 13-27-202(4), MCA.

¶5 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 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 The 2021 Montana Legislature added new components to the law covering the Attorney General's screening process. For example, one new provision tasks the Attorney General with reviewing the proposed ballot issue as to whether it "could cause a regulatory taking under Montana law or otherwise will likely cause significant material harm to one or more business interests in Montana if approved by the voters." Section 13-27-312(9), MCA. If the Attorney General is of the opinion that either of these things are true, then a statement to that effect is appended to the petition as a sort of "warning label."

¶7 Another change the 2021 Legislature made regards the definition of "legal sufficiency." The previous version of the law defined legal sufficiency only in terms of compliance with constitutional and statutory provisions governing how a proposed issue is submitted to electors, and the law made explicit that sufficiency did not include substantive legality. See § 13-27-312(7), MCA (2011). The 2021 Legislature reversed the latter standard, and the law now defines "legal sufficiency" to include "the substantive legality of the proposed issue if approved by the voters." Section 13-27-312(8), MCA ; 2021 Mont. Laws ch. 554, § 6.

¶8 Section 13-27-316, MCA, permits proponents of a ballot issue to appeal to this Court to review the Attorney General's action under § 13-27-312, 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).

¶9 Here, Petitioners are proponents of a ballot initiative, I-24, that would designate sections of the Gallatin and Madison Rivers "Outstanding Resource Waters" under §§ 75-5-315 and -316, MCA. Such waters receive special statutory protection from water quality degradation. Petitioners previously requested that the Board of Environmental Review make such a designation on these rivers, following the appropriate statutory and regulatory steps. The Board declined. Now, they seek to put the matter to a vote through the ballot initiative process. I-24 would also make one change to the Outstanding Resource Waters statute. Section 75-5-316(2)(b), MCA, prohibits the Department of Environmental Quality from issuing new or increased point source discharge permits that would "result in a permanent change in the water quality of an outstanding resource water." I-24, if approved, would modify that language to include temporary adverse water quality changes.

¶10 Petitioners followed the process described above. They submitted their proposed measure to the Secretary of State, who sent it to the Legislative Services Division. Staff at Legislative Services suggested language for the initiative, which Petitioners accepted. The Secretary of State then sent the measure to the Attorney General for review.

¶11 On January 28, 2021, the Attorney General sent the Secretary of State his determination on I-24. The Attorney General had modified the language of the proposed ballot statement, taking the position that the version submitted was not sufficiently clear. Furthermore, the Attorney General rejected I-24 on legal sufficiency grounds, using the novel "substantive legality" standard in § 13-27-312(8), MCA. The Attorney General explained in his determination that I-24 was legally deficient because it would constitute an unconstitutional taking of private property in violation of the takings clauses in the United States Constitution and in Article II, Section 29, of the Montana Constitution. Finally, the Attorney General also discussed his opinion on the "regulatory taking" question and his views on I-24's impact on Montana business interests, determining that the statement permitted by § 13-27-312(9), MCA, should be included if the measure proceeded to the ballot.

¶12 Petitioners received notice of the Attorney General's action from the Secretary of State on January 31, 2021, and on February 10, they filed an original proceeding in this Court challenging the Attorney General's determinations.

DISCUSSION

¶13 Issue One: Did Petitioners timely file their challenge?

¶14 The Attorney General argues that Petitioners failed to file their challenge in this Court within the 10-day time period required by § 13-27-316(1), MCA. That statute uses the language "within 10 days of the attorney general's determination." Because the Attorney General gave his determination to the Secretary of State on January 28 (a Friday), he argues that Petitioners had only through February 7 to file their petition here.

¶15 The Secretary of State did not communicate the Attorney General's determination to Petitioners until January 31 (the following Monday). Petitioners contend that they had 10 days from January 31, the date they received notice, to file their petition, which renders this filing timely.

¶16 Implicit in the statute's 10-day triggering event is notice of the Attorney General's determination to Petitioners. Another part of the statute, § 13-27-202(4), MCA, explicitly tasks the Secretary of State with sending written notice of the Attorney General's determination to the person who submitted the proposed ballot initiative. The only reasonable way to apply this provision and § 13-27-316(1), MCA, together is to conclude that the 10-day period commences when the Secretary of State sends the...