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.

History

Drafting

Delegate Proposals

Delegate Virginia H. Blend introduced Proposal No. 42 for a new constitutional section for Initiative, Referendum and Recall Powers for Local Government. As proposed the section would read: “The legislature shall provide for recall of local elected officials and for the exercise of the initiative and referendum powers by the voters of subdivisions of the state.” Montana Constitutional Convention, Vol. I, Delegate Proposal at 138, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol1.pdf

Delegate Thomas M. Ask introduced Proposal No. 97 which was referred to the Local Government Committee. His proposal called for a new constitutional article providing for Local Government. In his proposal, Section 3 would read: “Forms of government. The legislature shall provide by general law for the government of counties, cities, towns, and other local government units and for methods and produces of incorporating, merging, consolidating, and dissolving such units of local government and of altering their boundaries, including provisions: (5) For procedures for initiative and referendum and recall.” Montana Constitutional Convention, Vol. I, Delegate Proposal at 215-17, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol1.pdf

Delegate Lucile Speer introduced Proposal No. 126 which was referred to the Local Government Committee. This proposal called for a new constitutional article on local government with Section 8 as Initiative, Referendum, and Recall: “the initiative and referendum powers reserved to the people by the constitution shall be further extended to the qualified voters of each county and city as applied to the adoption, amendment, revision, or repeal of a charter and as applied to legislation adopted by a local government unit. The proposal further provided “All elected public officials of local governments are subject to recall by the voters of the local government unit from which elected. Procedures and grounds for recall shall be prescribed by the legislature. Montana Constitutional Convention, Vol. I, Delegate Proposal at 253-254, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol1.pdf

Committee Proposals

The Majority Proposal by the Local Government Committee called for the new Article on Local Government and Section on Initiative and Referendum to read as follows: “Section 9. Initiative and Referendum. The initiative and referendum powers reserved to the people by the Constitution shall be extended by law to the qualified voters of each local government unit.” Montana Constitutional Convention, Vol. II, Local Government Committee Proposal at 782-84, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf. The Recall provision was included in Section 10 of this proposal. Id.

Local Government Committee Proposal Comments: Considering the broad self-government powers offered in this proposal, the Local Government noted that it was important for local residents to have initiative and referendum powers. Montana Constitutional Convention, Vol. II, Local Government Committee Proposal Comments at 799, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf. The Committee believed the local government article was “the proper place to assure these ‘people powers.’” Id. The Committee also noted that specific provisions regarding petition requirements should be left to statutory law so they can easily be changed if needed. Id.

The Committee on Style and Drafting: Amended the language to match its current wording. Montana Constitutional Convention, Vol. II, Final Report of Committee on Style, Drafting at 1010, 1014, 1074, available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol2.pdf.

Floor Debate

Delegate Oscar L. Anderson: Submitted the unanimous proposal for a new Local Government Article. He stated that the proposal is intended to replace the present Article XVI, countries, Municipal Corporations and Offices; and Article XIX, Section 6 dealing with country offices. 7 Verbatim Transcript 2512-2513 (Mar. 16, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol7.pdf. He stated: “The committee was in general agreement that a new Local Government Article should provide flexibility but was divided on how best to attain this goal. This proposal tends to work with the existing local government structure of cities, towns and counties and seeks to achieve improvement by encouraging experimentation in local government powers and form.” Id.

Delegate Virginia H. Blend: Noted that flexibility and accountability were the goals embodied in the Local Government Article proposal. Id. She stated: “[T]he proposal requires accountability from local government unit. . . . The people would be guaranteed the powers of initiative and referendum, and recall on the local level. . . . Totally new provisions are added allowing local citizens to design their own form of local government, to increase local authority and responsibility, and to end the needless duplication of local services. . . . our article has the full support of every local government organization and citizen groups involved. We have not had objections from any citizen or individual city or county official.” Id.

Delegate Clark E. Simon: Recommended Section 9- Initiative and Referendum- be adopted. 7 Verbatim Transcript 2548-49 (Mar. 17, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol7.pdf. He then referenced the Local Government Committee Proposal comments on this section. Id. Then, Delegate Simon stated: “Now this initiative and referendum was not dealt with in the general government article and will be dealt with when the general article comes up. A few other little minor things that would like to talk about and give you a little emphasis on- Section 9 does one thing; it directs the Legislature to extend the initiative and referendum powers to local government units, such as cities, towns and counties. The section itself does not set specific limits under which the initiative and referendum should be enacted locally. These details- such as the number of signers on the initiative petition- are left to statutory law. It is also important to stress that the General Government Committee report does not provide for local initiative referendum. Therefore, this proposed section is not duplicated elsewhere in this Constitution. Initiative and referendum are not new in Montana, particularly on the local-city level. Such provisions already are part of the statutory law for city and town ordinance in the Revised Codes of Montana of 1947. It’ll be unnecessary to give you all the sections. In addition, certain other county matters, such as debt must be submitted to the vote for the voters’ approval. It is important that Section 9 of the committee’s proposal would assure that this power be provided for people on the local level. It is particularly important that it be provided, in view of the fact that local government units will be strengthened, in terms of power, under the committee proposal. The initiative and referendum offer another check on this power and are of such important that they should receive constitutional guarantee. Thank you, Mr. Chairman.” Id. There was not further discussion, and the Committee unanimously adopted Section 9 on Local Government. Id.

The Local Government Style and Drafting Final Report: Included the amended Initiative and Referendum was unanimously adopted as Article XI, Section 8. 7 Verbatim Transcript 2928 (Mar. 22, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol7.pdf

Adoption

After a roll call of 96 delegates voting Aye, 1 delegate voting no (3 absent), Article XI, including Section 8 was passed by the Convention on March 22, 1972. 7 Verbatim Transcript 2940-2942. (Mar. 22, 1972), available at https://courts.mt.gov/portals/189/library/mt_cons_convention/vol7.pdf.

Ratification

Article XI, Section 8 was ratified as part of the Proposed 1972 Constitution. The 1972 Voter’s Pamphlet noted Section 8 was a “[n]ew provision directing legislature to give residents the power to initiative local ordinances by petition or to petition to vote on ordinances passed by local governments. See The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet), available at http://www.umt.edu/law/library/files/1972voterspamphlet.

Interpretation

Legislation

Montana Code Annotated § 7-5-131. Right of Initiative and Referendum.

• (1) The powers of initiative and referendum are reserved to the electors of each local government. Resolutions and ordinances within the legislative jurisdiction and power of the governing body of the local government, except those set out in subsection (2), may be proposed or amended and prior resolutions and ordinances may be repealed in the manner provided in 7-5-132 through 7-5-135 and 7-5-137.
• (2) The powers of initiative do not extend to the following:
  • (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; or
  • (e) the prioritization of the enforcement of any state law by a unit of local government.

Case Law

Choteau County v. Grossman: The Court held that Article XI, § 8 of the Montana Constitution should be broadly construed to maintain the maximum power in the people and statutes in aid of these reserved powers should be liberally construed and should not be interfered with by the courts except on a clear showing that the law is violated. 172 Mont. 373, 563 P.2d 1125 (Mont. 1977).

Greens at Fort Missoula, LLC v. City of Missoula: The Court held that the constitutional right to a referendum is applicable to actions of local government and the Montana Code Annotated § 7-5-31 permits the local electorate to propose, amend or repeal ordinances and resolutions. 271 Mont. 398, 402, 897 P.2d 1078, 1080 (Mont. 1995). Additionally, the Court noted that Montana Code Annotated § 7-5-31 does not distinguish between zoning ordinances and rezoning ordinances. Id. at 405, 897 P.2d at 1082.

Town of Whitehall v. Preece: The Court held that initiative and referendum powers must be broadly construed to maintain maximum power in the people and that the legislature cannot extend to the people greater powers against the local government than those which the people have reserved to themselves in the Constitution. 1998 MT 53, 288 Mont. 55, 956 P.2d 743.

Phillips v. City of Whitefish: The residents of the city and county brought an action challenging the validity of referendum by city voters to rescind city council resolution authorizing city to enter an amended interlocal agreement with the county concerning planning and zoning authority over the extraterritorial area surrounding the city. 2014 MT 186, ¶ 1, 375 Mont. 456, 330 P.3d 442. The Court affirmed that legislative acts by town governments are subject to a referendum while administrative or quasi-judicial acts of city government are not because referenda on administrative acts hamper the efficient administration of local government. Id. ¶ 31 The Court reasoned that “efficiency rationale is balanced against the obligation to broadly construe initiative and referendum powers to maintain maximum power in the people.” Id. The determination of whether local government action is administrative, or legislative is fact-driven, and the denomination of an act as a resolution or ordinance is not dispositive. Id. ¶ 33. The Court adopted guidelines from the Supreme Court of Kansas to aid the courts in distinguishing legislative and administrative acts and emphasized that “[r]referendum is to be restricted to acts that have a ‘fully’ legislative purpose and are not ‘principally’ administrative.” Id. ¶ 33-34. However, the referendum power does not extend to all local government action governments that have legislative implications and that “if the action of the local government is principally administrative, it will be considered administrative for this purpose, despite having legislative characteristics.” Id. ¶ 47.

Attorney General Opinions

What Electors Considered Qualified Voters for Cty. Zoning Initiatives, 52 Mont. Op. Att’y Gen. 6, 2008 Mont. A.G. (June 23, 2008).

Scope – No Application to Special Improvement District, 39 Mont. Op. Att’y Gen. 73, 1982 Mont. A. G. (1982).

Closing of Cty. Incinerator is an Admin. Act Not Subject to Initiative or Referendum, 50 Mont. Op. Att’y Gen. 8, 2004 Mont. A. G. (June 20, 2004).

Commentary

Montana Constitutional Convention Study

“Constitutional limitations on legislative authority, adoption of the referendum and initiative for municipalities and the Helena Consolidated Water Co. v. Steele decision, the court said, all indicate that it is the public policy of this state to confide to the citizens of municipalities the right of local self-control to the utmost extent compatible with an orderly system of state government. But the court carefully avoided contending that the right to local self-government is complete. The decision states: In all of the states asserting the doctrine of local self-government, the distinction is made between the affairs of a city which are of a public nature—that is, those in which the people of the state have, with the people of the city, a common interest—and those private municipal affairs which are of a purely local character and primarily affect only the inhabitants of the particular city. All these courts recognize the right of the state, through its legislative department, to coerce a city in the performance of a public duty, as distinguished from one of a private or local nature. Professor Mason acknowledges that these cases reiterate the theory of an inherent right of local self-government, but finds that ‘the statements of the theory may be explained away as either quite beside the question decided or unnecessary to the decisions.’” Montana Constitutional Convention Study No. 16, Local Government, 50 (1972) (footnotes omitted).

Law Review Articles

Michelle Tafoya, Reframing the Framework: Direct Democracy, State Constitutional Interpretation, and the Legislative-Administrative Question in Montana, 77 Mont. L. Rev. 151 (2016).

Chip Lowe, Public Safety Legislation and the Referendum Power: A Reexamination, 37 Hastings L. J. 591 (1986).