Montana Supreme Court OKs ballot initiative to make pre-K a constitutional right

Montana Attorney General: Court's opinion allows legislature to not fund constitutional mandates
Posted at 5:16 PM, Jun 02, 2022
and last updated 2022-06-02 19:21:36-04

HELENA — After a ruling by the Montana Supreme Court, proponents of making preschool a constitutional right in Montana will have until June 17 to gather more than 60,000 signatures if they want to put the question to voters in November.

In an opinion issued Thursday, Chief Justice Mike McGrath said Montana Attorney General Austin Knudsen was wrong to reject the proposed ballot initiative. In an emailed response, Knudsen's office said the court's opinion gave the Montana State Legislature "full authority to fund — or not fund — constitutional mandates."

If approved by voters, Constitutional Initiative 33 would guarantee state-funded preschool by amending Article X of the Montana Constitution.

In April, Knudsen rejected CI-33 as part of a statutorily required sufficiency review because CI-33 would constitute an appropriation of money, which is not allowed when citizens want to enact laws by initiative.

However, McGrath's opinion said the appropriation restriction does not apply to constitutional amendments. Amendments do not dictate specific funding, but instead reflect rights and goals dictating governmental functions and people's rights.

“Because the attorney general’s legal sufficiency determination was predicated on an erroneous reading of the Constitution," McGrath said. "We conclude that the attorney general’s decision was incorrect and we reverse the determination that CI-33 is legally deficient.”

The other four justices on the panel — Beth Baker, Laurie McKinnon, Dirk M. Sandefur and Jim Rice — concurred with McGrath.

Knudsen's argument was consistent with the court’s prior decisions, said Kyler Nerison, a spokesman for the attorney general's office. Knudsen's argument was also based on the understanding that Article X of the Montana Constitution included a funding requirement for elementary and secondary education. Adding pre-K would obligate the Legislature to increase state education funding, Nerison said.

Modification of Article X does not increase the cost of school district funding, according to a fiscal note from the Governor's Office of Budget and Program Planning. However, if the legislature added funding for pre-K, the estimated cost increase per year would be about $9 million. Property taxes statewide would also increase by about $2 million per year in the first three years, according to the fiscal note.

The fiscal note seems to echo McGrath, who wrote in his opinion that constitutional provisions do not expend money from the state's treasury.

"Instead," McGrath said. "The document only provides the framework through which the Legislature may do so."

To the attorney general's office, that is "splitting hairs," Nerison said. However, McGrath's use of the phrase, "may do so," opened the possibility for the legislature to choose not to fund constitutional mandates, Nerison said.

John Meyer, executive director of the Cottonwood Environmental Law Center, submitted the proposed initiative to the Montana Secretary of State's Office in February. In addition to CI-33, Meyer's organization is one of several environmental groups behind Initiative 191, which would increase pollution protections for parts of the Gallatin and Madison rivers. After a sufficiency review, Knudsen also rejected I-191 on the basis it infringed on the rights of private property owners. In March, the Montana Supreme Court overturned Knudsen and allowed proponents to begin gathering signatures.

The Montana Supreme Court did not address other parts of Meyer's petition connected to CI-33, which included a request for the court to review the constitutionality of Montana's residency requirement for signature gatherers. The court also did not grant Meyer's request for more time to gather the signatures needed to get CI-33 on the ballot.

If Meyer wanted more time to gather signatures, he should have prepared his proposed ballot much sooner, McGrath wrote.

"The avoidable time-crunch (Meyer) may now face," McGrath said. "Is an insufficient ground for this court to override numerous explicit statutory deadlines."

To qualify a constitutional amendment for the ballot, supporters must get signatures from registered voters that total 10% of the total votes cast in the most recent election for governor, including 10% of the voters in 40 of the state’s 100 legislative districts.