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OP 14-0146

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 90

_________________

TRAVIS HOFFMAN, MELISSA SMYLIE and

KIM ABBOTT,

 Petitioners,

 v.

STATE OF MONTANA, HONORABLE TIM 

FOX, in his capacity as Attorney General, and

HONORABLE LINDA McCULLOCH, in her

Capacity as Secretary of State,

 Respondent.

O P I N I O N 

A N D 

O R D E R

_________________

¶1 Before the Court is an original proceeding filed pursuant to § 13-27-316(2), MCA. 

The Combined Petition was filed on March 10, 2014, and the Attorney General

responded within the time allowed by law. The Petition challenges the legal sufficiency 

of Initiative No. 171 (I-171) and seeks an order enjoining the Secretary of State from 

approving petitions for circulation to the electorate for signatures or otherwise submitting 

the measure for approval by the voters. The Petition further seeks a declaration that I-171 

is unconstitutional and void and may not appear on the ballot. For the reasons explained 

below, the Court denies the Petition.

April 2 2014
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BACKGROUND

¶2 The proposed ballot measure was submitted to the Montana Secretary of State on 

December 18, 2013. It would prohibit the State of Montana and its political subdivisions 

from using funds, resources or personnel to administer or enforce the federal Patient 

Protection and Affordable Care Act, Public Law No. 111-148 (“Affordable Care Act”). 

The measure also would prohibit expansion of the Montana Medicaid Program as 

provided for by the Affordable Care Act and would prohibit the state and its political 

subdivisions from planning, creating or participating in a health insurance exchange. 

¶3 The Secretary of State submitted the proposed ballot measure to the Attorney 

General pursuant to § 13-27-202, MCA, for review and preparation of ballot statements 

in accordance with § 13-27-312, MCA. The Attorney General obtained a fiscal note from 

the Governor’s Budget Office and solicited public comment on proposed ballot 

statements. On February 27, 2014, the Attorney General approved the measure for legal 

sufficiency and returned it to the Secretary of State with a statement of purpose and a 

fiscal statement, to be placed on the petitions for circulation and on the ballot if the 

measure qualifies. In accordance with § 13-27-312(7), MCA, the Attorney General 

notified the Secretary of State that the proposed measure conflicts with another measure 

that is proposed for the ballot at the November 2014 general election. The Secretary of 

State approved the initiative petition for signature gathering on March 10, 2014.

¶4 Petitioners raise four grounds in support of their argument that I-171 is not legally 

sufficient. First, they challenge the adequacy of the ballot statements approved by the 
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Attorney General. Second, they assert that the measure addresses a matter concerning an 

appropriation of money and therefore is outside the initiative power prescribed by Article 

III, Section 4(1) of the Montana Constitution. Third, they argue that the measure 

contains more than one subject, in violation of Article V, Section 11(3) of the Montana 

Constitution. Fourth, they contend that the measure is unconstitutional under the 

Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, cl. 2, because it 

proposes a state law that is completely preempted “as an obstacle to the accomplishment 

and execution of” the ACA. English v. Gen. Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 

2275 (1990).

¶5 The Attorney General responds that the ballot statements fairly and impartially 

explain the proposed ballot measure in plain language within the word limits provided by 

statute and that the Petitioners’ remaining challenges exceed the scope of his legal 

sufficiency review of a proposed ballot measure. In the alternative, the Attorney General 

submits that the proposed ballot measure meets minimum constitutional requirements to 

proceed with signature-gathering and qualification for the ballot.

DISCUSSION

¶6 1. Did the Attorney General correctly determine that I-171 is legally sufficient?

¶7 The Attorney General is required by § 13-27-312(1), MCA, to examine a proposed 

ballot issue for legal sufficiency and determine whether the ballot statements comply with 

statutory requirements. “Legal sufficiency” means “that the petition complies with

statutory and constitutional requirements governing submission of the proposed issue to 
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the electors.” Section 13-27-312(7), MCA. The Attorney General’s legal sufficiency 

review “does not include consideration of the substantive legality of the issue if approved 

by the voters.” Section 13-27-312(7), MCA.

¶8 We have made clear in several recent opinions that the Attorney General’s legal 

sufficiency review does not authorize him to withhold a proposed ballot measure from 

the ballot for an alleged substantive constitutional infirmity. MEA-MFT v. State of 

Montana, 2014 MT 33, ¶ 11, 374 Mont. 1, 318 P.3d 702; Montanans Opposed to I-166 v. 

State of Montana, 2012 MT 168, ¶ 6, 365 Mont. 520, 285 P.3d 435; see also Mont. 

Consumer Fin. Ass’n v. State, 2010 MT 185, ¶ 9, 357 Mont. 237, 238 P.3d 765. Our 

most recent opinion on the subject determined a ballot measure to be legally deficient 

because it did not meet the statutory requirements governing submission of a legislative 

referendum to the electors. MEA-MFT v. State of Montana, 2014 MT 76, ___ Mont. ___, 

___ P.3d ___. 

¶9 As an executive officer of the State of Montana, the Attorney General does not 

have the authority to make a declaration regarding the constitutionality of I-171.

“Constitutional questions are properly decided by a judicial body, not an administrative

official, under the constitutional principle of separation of powers.” Mitchell v. Town of

W. Yellowstone, 235 Mont. 104, 109, 765 P.2d 745, 748 (1988) (quoting Jarussi v. Bd. of

Trustees, 204 Mont. 131, 135-36, 664 P.2d 316, 318 (1983)). If a law is repugnant to the 

Constitution, it is the courts that “have the power, and it is their duty, so to declare.” In 

re Clark’s Estate, 105 Mont. 401, 411, 74 P.2d 401, 406 (1937); see also Stuart v. Dept.
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of Soc. & Rehab. Servs., 247 Mont. 433, 438, 807 P.2d 710, 713 (1991) (“When . . . a 

bona fide constitutional issue is raised, a plaintiff has a right to resort to the declaratory 

judgment act for a determination of his rights[.]”) (quoting Mitchell, 235 Mont. at 

109-10, 765 P.2d at 748).

¶10 The statutes governing the process for submission of initiatives and referenda and 

legal challenges thereto were substantially amended in 2007. 2007 Mont. Laws ch. 481. 

Under the laws as amended, this Court may exercise original jurisdiction only to review 

the proposed ballot statements for initiatives and referenda and to review the Attorney 

General’s legal sufficiency determination. The statute does not confer original 

jurisdiction for any other purposes. Section 3-2-202(3)(a), MCA. Prior to the 2007 

amendments, the statute provided for this Court’s consideration of a “constitutional 

defect in the substance of a proposed ballot issue[.]” Section 3-2-202(3)(a)(ii), MCA 

(2005). That provision was removed. 2007 Mont. Laws ch. 481, § 1. The two recent 

cases in which ballot measures were stricken from the ballot for substantive constitutional 

infirmity were not original proceedings, but cases that originated in the district courts and 

were decided by this Court in the ordinary course of appeal. MEA-MFT v. McCulloch, 

2012 MT 211, 366 Mont. 266, 291 P.3d 1075; Reichert v. State, 2012 MT 111, 365 Mont. 

92, 278 P.3d 455. Further, the Legislature has expressly preserved “the right to challenge 

a constitutional defect in the substance of an issue approved by a vote of the people.” 

Section 13-27-316(6), MCA (emphasis added).
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¶11 Petitioners’ legal sufficiency claims are grounded in three distinct constitutional 

challenges to I-171. They first argue that I-171 violates Article V, Section 11(3) of the 

Montana Constitution because it contains more than one subject. Petitioners claim that at 

least three distinct subjects are included in the measure: (1) prohibiting the enforcement 

of the ACA, “which itself addresses at least 28 different subjects”; (2) prohibiting 

Medicaid expansion; and (3) prohibiting health care exchanges. Petitioners next claim 

that I-171 is unconstitutional under the Supremacy Clause of the United States 

Constitution, Art. VI, cl. 2, because the proposed ballot measure is completely preempted 

by the ACA. Finally, Petitioners claim that I-171 “attempt[s] to enact a law by initiative 

that addresses a matter concerning the appropriation of money” and therefore is 

unconstitutional under Article III, section 4(1) of the Montana Constitution. That section 

provides: “The people may enact laws by initiative on all matters except appropriations 

of money and local or special laws.” Petitioners acknowledge that I-171 does not 

appropriate money; they argue, however, that it interferes with funds the Legislature 

already has appropriated for the 2013 biennium and therefore runs afoul of this 

constitutional provision.

¶12 We conclude that none of these constitutional claims meets the definition of a 

legal deficiency within the scope of the Attorney General’s authority on review of a 

proposed ballot measure. We conclude further that none of the claims presents an 

appropriate basis on which to invoke this Court’s original jurisdiction under 

§ 13-27-316(2), MCA. When the Legislature has prescribed the process by which a 
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ballot measure may be challenged in court, we have required compliance with that 

process. State ex rel. Mont. Citizens for the Preservation of Citizens’ Rights v. 

Waltermire, 224 Mont. 273, 278, 729 P.2d 1283, 1286 (1986). We express no opinion on 

the merits of any of Petitioners’ constitutional claims or whether any such claims would 

be appropriate for pre-election review. As no other challenge is raised to the Attorney 

General’s determination of legal sufficiency, we find no basis to disturb that 

determination in this proceeding.

¶13 2. Do the ballot statements for I-171 satisfy the requirements of law?

¶14 Petitioners allege that the statements of purpose and implication fail to identify the 

measure in a manner that will allow a Montana voter to exercise his or her political 

judgment. They claim that the statements are faulty because they do not explain to voters 

that all twenty-eight substantive provisions of the ACA will be void in the State of 

Montana if I-171 is passed. Petitioners posit that it is wholly unreasonable to expect a 

voter to decipher the numerous federal statutes that would be affected by the measure, 

and that the statements fail to explain its substantial and far-reaching consequences on 

existing Montana programs. Petitioners also claim that the Attorney General improperly 

has utilized the fiscal statement to explain some of the provisions of the initiative itself.

¶15 The Attorney General’s explanatory statement provides as follows:

[Initiative No. 171] prohibits the State of Montana and its political 

subdivisions from using funds, personnel or other resources to administer 

or enforce the federal Affordable Care Act. [I-171] prohibits expansion of 

the Montana Medicaid program as provided under the Affordable Care Act. 

[I-171] further prohibits the state and its political subdivisions from 

planning, creating or participating in a health insurance exchange.
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The fiscal statement provides:

The State would save approximately $1.92 billion in state revenues and lose

$4.75 billion in federal revenues over five years based on an assumption 

that the federal government would end the state’s Medicaid Plan, 

Children’s Health Insurance Plan, and several other programs due to 

noncompliance with the Affordable Care Act.

¶16 As we noted in MEA-MFT, 2014 MT 33, ¶ 11, “the ballot language must ‘identify 

the measure on the ballot so that a Montana voter, drawing on both official and unofficial 

sources of information and education, will [be able to] exercise his or her political 

judgment.’” (quoting Harper v. Greely, 234 Mont. 259, 269, 763 P.2d 650, 657 (1988)). 

By statute, the Attorney General’s statement of purpose and implication is limited to 135 

words and the fiscal statement is limited to 50 words. Section 13-27-312(2)(a), (3),

MCA. The Petitioners cite no authority for their argument that the fiscal statement must 

not contain any explanation of the initiative. They do not challenge the fiscal statement’s

explanation of I-171’s effect “on the revenue, expenditures, or fiscal liability of the 

state[.]” Section 13-27-312(3), MCA. The statement of purpose and implication 

mentions each of the three topics the Petitioners claim will be affected by the proposed 

initiative. Given the complexity of the ACA and the impacts of its non-enforcement in 

Montana, the Attorney General’s statement captures its purpose, implication, and fiscal 

impacts in summary fashion and is sufficient to inform the voters of the implication of a 

vote for or against the measure. We conclude that the Attorney General’s ballot 

statements satisfy the requirements of § 13-27-312, MCA.
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¶17 IT IS THEREFORE ORDERED that the Petitioners’ request that this Court, in the 

exercise of its original jurisdiction pursuant to § 13-27-316(2), MCA, declare I-171

legally deficient and void and enjoin its circulation for signatures is DENIED.

¶18 The Court having determined that additional briefing on the Petition is 

unnecessary,

¶19 IT IS FURTHER ORDERED that the Petitioners’ motion for leave to file a reply 

brief is DENIED.

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

the Montana Secretary of State. 

DATED this 2nd day of April, 2014. 

/S/ BETH BAKER

We concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ PATRICIA COTTER

/S/ JIM RICE