Mont. Ass'n of Counties v. State

Decision Date01 November 2017
Docket NumberOP 17-0358.
Citation2017 MT 267,389 Mont. 183,404 P.3d 733
Parties MONTANA ASSOCIATION OF COUNTIES ("MACo"), Leo Gallagher, Adrian M. Miller, Montana Association of Criminal Defense Lawyers, and ACLU of Montana Foundation, Inc., Petitioners, v. The STATE of Montana, BY AND THROUGH Timothy C. FOX, in his official capacity as Attorney General, and Corey Stapleton, in his official capacity as Secretary of State, Respondents.
CourtMontana Supreme Court

For Petitioners: Kyle Anne Gray, Brianne C. McClafferty, Holland & Hart LLP, Billings, Montana, James P. Molloy, Gallik, Bremer & Molloy, P.C., Bozeman, Montana (Attorneys for MACo) Alex Rate, Legal Director, ACLU of Montana Foundation Inc., Missoula, Montana (Attorney for ACLU of Montana Foundation, Inc.)

For Respondents: Timothy C. Fox, Montana Attorney General, Dale Schowengerdt, Solicitor General, Rob Cameron, Deputy Attorney General, Helena, Montana

For Amici: Maxon R. Davis, Tyler C. Smith, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana, Kathleen M. Sullivan (Pro Hac Vice), Christine H. Chung (Pro Hac Vice), Quinn, Emanuel, Urquhart & Sullivan, LLP, New York, New York (Attorneys for Marsy's Law for Montana, LLC) Martha Sheehy, Sheehy Law Firm, Billings, Montana (Attorney for "The Montana Newspapers") William V. Ballew, Spoon Gordon Ballew PC, Missoula, Montana (Attorney for National Crime Victim Law Institute) Lawrence A. Anderson, Attorney at Law, P.C., Great Falls, Montana James H. Goetz, Goetz, Baldwin & Geddes P.C., Bozeman, Montana (Attorneys for Constitutional Convention Delegates, Retired Montana Supreme Court Justices and Law Professors)


Justice Laurie McKinnon delivered the Opinion and Order of the Court.

¶ 1 Petitioners challenge the constitutionality of Constitutional Initiative 116 (CI-116), commonly known as Marsy's Law, in an original petition for declaratory judgment and injunctive relief. The merits of CI-116 and the policy choices behind it are not at issue in this case. The only question before this Court is whether the procedure by which CI-116 was submitted to voters conformed to Montana's constitutional requirements.

¶ 2 This Court has original jurisdiction over declaratory judgment actions "when urgency or emergency factors exist making litigation in the trial courts and the normal appeal process inadequate and when the case involves purely legal questions of statutory or constitutional interpretation which are of state-wide importance." M. R. App. P. 14(4). See also Mont. Const. art. VII, § 2 (1)-(2); §§ 3 - 2 -201 and -202(1), MCA. In this case, normal litigation and appeal processes are inadequate because implementation of CI-116 is imminent. Furthermore, the question of whether CI-116 violates the Montana Constitution involves purely legal questions of constitutional interpretation because analysis of Montana Constitution, Article XIV, Section 11's separate-vote requirement focuses on the manner in which a constitutional amendment is submitted to the voters at an election. What is in issue and what this Court must adjudge is not directed by a factual record or inquiry, but rather is directed to the legality of the enactment or adoption process itself. Indeed, it is precisely because we are addressing only the enactment process and whether that process survives constitutional scrutiny that a factual record evidencing a dispute or conflict surrounding the numerous provisions of CI-116 is unnecessary. Thus, this case is properly before the Court as an original proceeding and we accordingly accept jurisdiction. See Marshall v. State , 1999 MT 33, ¶ 5, 293 Mont. 274, 975 P.2d 325.

¶ 3 We conclude that the single-subject requirement, set forth in Article V, Section 11(3), of the Montana Constitution, applies to bills of the Legislature and not to constitutional amendments. We further conclude that CI-116 violates the separate-vote requirement, set forth in Article XIV, Section 11, of Montana's Constitution, and is therefore void in its entirety.

¶ 4 We restate the dispositive issue as whether CI-116 violates the separate-vote requirement contained in Montana Constitution, Article XIV, Section 11.


¶ 5 On November 8, 2016, a majority of Montana voters approved CI-116, a constitutional amendment proposed by popular initiative. As enacted, CI-116 amended Article II of Montana's Constitution by adding a new Section 36, titled Rights of Crime Victims.1 By way of description, CI-116 contains four sections. CI-116(1) enumerates eighteen rights to which crime victims are entitled. These rights are meant "[t]o preserve and protect a crime victim's right to justice, to ensure a crime victim has a meaningful role in criminal and juvenile justice systems, and to ensure that a crime victim's rights and interests are respected and protected by law in a manner no less vigorous than the protections afforded to a criminal defendant and a delinquent youth." Among some of the rights afforded to victims by CI-116 are the right "to due process," CI-116(1)(a); the right "to privacy, including the right to refuse an interview, deposition, or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victim consents," CI-116(1)(f); the right to "notice of" and to be "present at all proceedings involving the criminal conduct, plea, sentencing, adjudication, disposition, release, or escape of the defendant or youth ... and any proceeding implicating the rights of the victim," CI-116(1)(g); the right to be "heard in any proceeding involving the release, plea, sentencing, disposition, adjudication, or parole of the defendant or youth," CI-116(1)(i); the right to "proceedings free from unreasonable delay and to a prompt and final conclusion of the case and any related postjudgment proceedings," CI-116(1)(o); and the right to be informed of the enumerated rights and advised that "the victim may seek the advice and assistance of an attorney with respect to" those rights, CI-116(1)(r).

¶ 6 CI-116(2) provides the manner in which victim's rights are to be recognized and effectuated. A victim, the victim's attorney or representative, or the prosecuting attorney "may assert and seek enforcement of the rights enumerated" in any "trial or appellate court or any other authority with jurisdiction over the case as a matter of right." The court "shall act promptly on the request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding disposition of a victim's right must be clearly stated on the record."

¶ 7 CI-116(3) ensures that the enumerated rights "may not be construed to deny or disparage" other victims' rights and provides that CI-116 "applies to criminal and youth court proceedings, is self-executing, and requires no further action by the Legislature."

¶ 8 CI-116(4) provides definitions for "crime" and "victim." A "crime" to which a victim's enumerated rights apply includes felonies, misdemeanors, and delinquency proceedings. The definition of "victim," CI-116(4)(b), includes the victim, who has suffered direct or threatened harm, and his or her "spouse, parent, grandparent, child, sibling, grandchild, or guardian." Victim also includes someone with a "relationship to the victim that is substantially similar" to the relationship of a spouse, parent, grandparent, child, sibling, grandchild, or guardian. Finally, "victim" does not include the accused or someone the "court believes would not act in the best interests of a minor or of a victim who is deceased, incompetent, or incarcerated."

¶ 9 CI-116 was to become effective July 1, 2017. Mont. Cnty. Attorneys Ass'n v. State , No. OP 16-0720, 387 Mont. 534, 391 P.3d 734 (table) (Jan. 3, 2017). However, on June 20, 2017, the Petitioners, Montana Association of Counties, Leo Gallagher, Adrian M. Miller, Montana Association of Criminal Defense Lawyers, and ACLU of Montana Foundation, Inc. (together, MACo), filed an original petition for declaratory judgment and injunctive relief. We ordered a response from the State of Montana (State) and additional briefing from the parties. On June 30, 2017, we stayed implementation of CI-116 to allow thorough consideration of the parties' arguments, relevant case law, and the applicable provisions of Montana's Constitution.

¶ 10 MACo, supported by amici,2 requests this Court declare void the enactment of CI- 116, enjoin CI-116's implementation and enforcement, and decertify the election results with respect to CI-116. MACo argues CI-116 violates two provisions of the Montana Constitution: the single-subject requirement of Article V, Section 11(3), and the separate-vote requirement of Article XIV, Section 11. MACo reasons CI-116 violates the single-subject requirement because involving a victim's kin in criminal justice decisions is a subject separate from providing rights to traditional victims.3 Regarding the separate-vote requirement, MACo argues the "extensive language" of CI-116 amends at least eight sections of Montana's Constitution and, thus, a vote was needed to amend each section individually.4

¶ 11 The State, also supported by amici,5 responds that the single-subject requirement does not apply to constitutional initiatives. Alternatively, the State maintains that crime victims' rights is CI-116's only subject. The State also contends CI-116 does not violate the separate-vote requirement because the initiative does not "change or formally alter" any preexisting constitutional provision. The State further urges this Court to not follow the "amendment-by-implication" theory advanced by MACo, but, in any event, maintains that CI-116 does not impliedly amend other parts of the Constitution. Finally, the State contends that construing the separate-vote requirement as MACo requests would essentially abolish the constitutional initiative process in Montana.


¶ 12 Montana's Constitution may be amended in three ways, all of which...

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1 books & journal articles
  • Sb 127 - Criminal Procedure
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    • Georgia State University College of Law Georgia State Law Reviews No. 35-1, September 2018
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    ...[https://perma. cc/33 YC-T8YB].73. Montana Ass'n of Ctys. v. Montana, 404 P.3d 733, 736 (Mont. 2017). 74. Id.75. Id.76. Jim Nelson, Marsy's Law. A Solution in Search of a Problem, INDEP. RECORD (Oct. 11, 2016),

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