Montana Supreme Court justices listen to oral arguments on May 15, 2024. (Photo by Blair Miller, Daily Montanan)
The ballot initiative to ban single-use plastics in Bozeman approved last month by voters was dealt a blow this week when the Montana Supreme Court reversed a lower court’s decision that allowed the initiative to go onto the ballot in the first place.
In a 5-2 decision written by Chief Justice Mike McGrath, the state’s high court said that a bill passed by the Legislature in 2021 to preempt local ordinances, resolutions, initiatives and referendums regulating certain “containers” was not unconstitutional because the state constitution allows the Legislature to limit the powers of local government.
“Any limits on local government power must necessarily also include limits on the local power of initiative,” McGrath wrote. “Contrary to Cottonwood’s position, the initiative power at any level — including local, statewide, and Constitutional amendments — has constraints.”
Cottonwood Environmental Law Center attorney John Meyer sued in 2023 to challenge House Bill 407, passed in 2021 solely with Republican votes. The bill prohibited local governments from regulating or allowing citizens to pass initiatives to regulate what the bill called “auxiliary containers,” which include things like plastic bags and straws, among other things.
A Cottonwood member sought to place an initiative on the ballot for 2024 to regulate single-use plastics in Bozeman, but it was rejected by the Bozeman city attorney, who said the petition was outside of local initiative power because of the 2021 law. Meyer then sued in late November 2023.
He argued that the law stripped citizens of their constitutional right to run ballot initiatives, and that the law violated Montanans’ rights under the state constitution to a clean and healthful environment.
In March, Lewis and Clark County District Court Judge Michael McMahon agreed with Meyer’s argument that the law preventing local initiatives on containers was unconstitutional, and Gallatin County agreed to process the petition. But McMahon did not issue an order regarding Cottonwood’s claim that the law changes that came from HB 407 violated the right to a clean and healthful environment.
The State of Montana – the defendant in the case – appealed McMahon’s ruling on the first claim, however, and the case was fully briefed before the Supreme Court by Nov. 20.
Meanwhile, voters in Bozeman approved the single-use plastic ban ordinance 63% to 37% earlier that month.
But the Supreme Court’s decision reverses McMahon’s, though the court noted several times in both the majority opinion and dissent that the clean and healthful environment claim is still ripe for review. A hearing on that claim is scheduled for early next year.
“A local initiative could not preempt state law, just as a statewide initiative could not preempt the Constitution or a constitutional initiative could not preempt the United States Constitution,” McGrath wrote in the majority opinion. “Cottonwood has not pointed us to any cases — in this jurisdiction or others — that have held otherwise.”
The opinion effectively says that if the Legislature has passed a state law prohibiting local governments from exercising certain powers, that also prohibits local citizens from trying to exercise those powers through initiative.
Joining Justice McGrath in the majority were Justices Beth Baker, Jim Shea, Dirk Sandefur and Jim Rice. Justice Laurie McKinnon wrote the dissent, joined by Justice Ingrid Gustafson.
McKinnon’s dissent says the majority is correct that the state constitution allows local governments to “exercise any power not prohibited” by either the constitution, local government charter or state statute. But she said that applying limitations on local government should not infringe on the right of the power of initiative the constitution grants to Montana citizens.
“State jurisdictional and regulatory authority could be considered in the context of the local initiative without infringing on the people’s constitutional right of initiative,” McKinnon wrote. “Cottonwood’s constitutional claims that [the statute] violates the right to a clean and healthful environment notwithstanding, the Montana Constitution expressly authorizes the legislature to constrain local governments in precisely that manner.”
But she added that the constitution’s “specific and narrow limitations on the people’s initiative powers … simply do not contemplate curtailing that power when the people seek to regulate ‘auxiliary containers.’”
“As the District Court observed, the State’s argument that state statutes providing for a statewide policy can restrict the people’s constitutional right of initiative is the equivalent of stating that the Constitution may be amended by statute,” McKinnon wrote. “Such a patently absurd assertion upends elementary principles of constitutional supremacy.”
Meyer declined to comment on the court’s decision Friday because the case is still active. He and the state are due back in Lewis and Clark County District Court for a hearing on the clean and healthful environment claim on Feb. 6, he said.
The Montana Supreme Court issued the decision in Cottonwood on Wednesday and almost simultaneously released its decision affirming the lower court’s decision in Held v. Montana, holding that Montana’s greenhouse gas emissions and two laws that prohibited the state from looking at those emissions when considering whether to grant energy project permits violated the constitutional right to a clean and healthful environment.
“The District Court’s conclusion of law is affirmed: Montana’s right to a clean and healthful environment and environmental life support system includes a stable climate system, which is clearly within the object and true principles of the Framers’ inclusion of the right to a clean and healthful environment,” McGrath wrote in the 6-1 majority opinion in that case.