Closely Related “Initiative-and-Referendum Right” Amendments Satisfy Montana’s Separate-Vote Rule; Fiscal Statements Require a Determinable Fiscal Impact

Introduction

In T. Kendrick v. A. Knudsen (2026 MT 39), Petitioners Theresa Kendrick, Claudia Clifford, and Montanans Decide (“Proponents”) brought an original proceeding seeking declaratory relief to overturn the Montana Attorney General’s legal-sufficiency determination for Ballot Issue 8 (“BI-8”). The Attorney General had concluded BI-8 was legally insufficient because it allegedly violated Montana’s constitutional “separate vote” requirement for constitutional amendments, Article XIV, Section 11.

BI-8 would add a new Article II, Section 37 recognizing a fundamental right to exercise the initiative and referendum powers, restricting government from denying or burdening that right absent strict scrutiny (“compelling interest” / “least restrictive means”), and enumerating procedural guarantees for proposing, qualifying, litigating, and submitting ballot issues—along with language restricting government interference and the “use of government resources to support or oppose the ballot issue.”

A second dispute concerned whether the Attorney General could append a fiscal statement to the ballot materials where the fiscal note reflected zero fiscal impact, notwithstanding narrative speculation that litigation might occur.

Summary of the Opinion

The Montana Supreme Court accepted original jurisdiction under § 3-2-202(3)(a), MCA and granted the petition. The Court held:

  • BI-8 is a single constitutional amendment that satisfies Article XIV, Section 11 because its provisions are closely related components of one constitutional design—protecting the people’s initiative and referendum power.
  • The Attorney General lacked statutory authority under § 13-27-226(4), MCA to append a fiscal statement because the fiscal note did not “indicate a fiscal impact”; speculative assumptions about future litigation are not a determinable impact.

The Court reversed the legal-sufficiency determination, struck the fiscal statement, and ordered the Attorney General to prepare and forward compliant ballot statements to the Secretary of State within five days.

Analysis

Precedents Cited

1) The controlling separate-vote framework: Mont. Ass'n of Counties v. State (“MACo”)

The Court anchored its analysis in Mont. Ass'n of Counties v. State, 2017 MT 267 (“MACo”), which explains that Article XIV, Section 11 serves two purposes: preventing voter confusion and preventing logrolling (bundling unrelated amendments to obtain approval that separate measures might not command). MACo also directs courts to apply the rule “faithfully but not expansively,” so as not to encumber the people’s right to amend the Constitution.

MACo’s key doctrinal tool is the “closely related” inquiry: the question is whether a proposal makes two or more substantive constitutional changes that are not closely related. The Court reiterated MACo’s warning that the inquiry is not whether the initiative could have been drafted differently, nor whether it can be subdivided in theory.

2) Attorney General authority and the narrowness of pre-election review: Monforton v. Knudsen

Citing Monforton v. Knudsen, 2023 MT 179, the Court emphasized that the Attorney General has authority to assess compliance with the separate-vote provision at the legal-sufficiency stage, but that authority is limited to the statutory lane the Legislature created. In this case, the Court repeatedly rejected attempts to convert pre-election sufficiency review into a preview of post-adoption constitutional litigation.

3) Recent separate-vote enforcement: Montanans for Nonpartisan Cts. v. Knudsen (“MNC”) and Transparent Election Initiative v. Knudsen (“TEI”)

The Attorney General relied on a line of cases scrutinizing “theme-based” bundling:

  • Montanans for Nonpartisan Cts. v. Knudsen, 2025 MT 268 (“MNC”): the Court struck a proposal that combined maintaining nonpartisan judicial elections with a separate requirement that newly created courts have elected judges, holding voters were entitled to separate votes on distinct constitutional questions.
  • Transparent Election Initiative v. Knudsen, 2026 MT 2 (“TEI”): the Court rejected a measure that paired eliminating corporate political spending with broad changes to the constitutional status of “artificial persons,” concluding the initiative required voters to accept sweeping constitutional changes beyond its stated objective.

In Kendrick, the Court treated MNC and TEI as guardrails: a “single purpose” label cannot save an initiative that combines distinct constitutional subjects; but the mere possibility of drafting narrower language cannot itself establish a separate-vote violation.

4) Cabining the “implied effects” argument and resisting speculative constitutional adjudication: Montanans Securing Reprod. Rights v. Knudsen (“MSRR”) and Cottonwood Envtl. Law Ctr. v. Knudsen

The Court relied heavily on Montanans Securing Reprod. Rights v. Knudsen, 2024 MT 54 (“MSRR”) to reject the notion that recognizing a new constitutional right necessarily creates multiple amendments because it interacts with other constitutional provisions. MSRR stands for the proposition that overlapping rights and protections across constitutional text is common; interaction is not automatically “amendment multiplication.”

The Court also invoked Chief Justice McGrath’s concurrence in Cottonwood Envtl. Law Ctr. v. Knudsen, 2022 MT 49, emphasizing separation of powers: the Attorney General “lacks the power to reject a proposed ballot initiative based on an opinion about its constitutionality,” because only courts decide constitutionality. This reinforced the majority’s insistence that potential post-election defects cannot be used to manufacture a separate-vote violation pre-election.

5) Legislative administration vs. constitutional design constraints: Montanans for Election Reform Action Fund v. Knudsen (“MERAF”)

The Attorney General argued BI-8’s procedural guarantees improperly constrained legislative authority under Article IV, Section 3 (Legislature provides election administration requirements “by law”). The Court found the argument largely controlled by Montanans for Election Reform Action Fund v. Knudsen, 2023 MT 226 (“MERAF”), which held that creating a new constitutional election structure does not “amend” legislative authority simply because the Legislature must administer the new structure. Constitutional amendments routinely constrain future legislation; that constraint is the ordinary operation of constitutional supremacy, not a second “amendment subject.”

6) Separation of powers as a merits issue, not a separate-vote issue: Coate v. Omholt

The Attorney General cited Coate v. Omholt, 203 Mont. 488, 662 P.2d 591 (1983), where statutory deadlines imposed on the judiciary were held to violate separation of powers. The Court treated Coate as addressing a different question: whether deadlines are constitutional on the merits post-enactment, not whether including deadlines within a proposed initiative-right amendment creates multiple unrelated constitutional amendments for separate-vote purposes.

7) The dissents’ reliance on public-official speech and litigant-rights cases: Sheehy, Meech, Stokes, Byrd, City of Missoula, State v. Moore, ISC Distributors, State v. West

Justice Rice and Chief Justice Swanson would have found multiple amendments, especially due to the government-resource limitation and the litigation-resolution timelines. They invoked:

  • Sheehy v. Comm'r of Political Practices for Mont., 2020 MT 37, to argue that Montana law recognizes circumstances where public officials may advocate on ballot measures as part of official duties, and BI-8 would change that landscape.
  • Access-to-courts and due-process authorities—Meech v. Hillhaven W., Inc., 238 Mont. 21, 776 P.2d 488 (1989), Stokes v. First Am. Title Co. of Montana, Inc., 2017 MT 275, Byrd v. Columbia Falls Lions Club, 183 Mont. 330, 599 P.2d 366 (1979), City of Missoula v. Mountain Water Co., 2016 MT 183, State v. Moore, 2018 MT 110, ISC Distributors, Inc. v. Trevor, 273 Mont. 185, 903 P.2d 170 (1995), State v. West, 2008 MT 338—to argue BI-8’s deadlines would curtail opponents’ procedural rights and the judiciary’s control over timing.

The majority did not dispute those doctrines in the abstract; it held that such arguments largely concerned prospective application and constitutional merits, not whether BI-8 improperly bundles unrelated constitutional subjects under Article XIV, Section 11.

Legal Reasoning

1) The “one new right + implementing protections” structure can still be a single amendment

The Court conceptualized BI-8 as adding one new constitutional provision: a fundamental right to exercise initiative and referendum, protected by strict scrutiny and supported by enumerated procedural guarantees. It treated the enumerated guarantees (timelines, review procedures, signature verification protections, withdrawal deadline parity, pre-ballot litigation timing, and submission neutrality) not as separate “subjects,” but as components of the same rights-design project.

The Court’s doctrinal move is important: it implicitly recognizes that modern constitutional amendments may be “rights + architecture.” Under the majority’s approach, a rights amendment does not become multiple amendments merely because it contains operational safeguards that make the right meaningful. The separate-vote rule is triggered when the architecture introduces a distinct constitutional choice—i.e., a second, independent constitutional subject voters might accept or reject separately.

2) Interaction with other constitutional provisions is expected—and not automatically “multiple amendments”

The Attorney General argued BI-8 implicitly amended: (a) judicial power provisions by imposing deadlines, (b) other constitutional structures by limiting “government resources,” and (c) legislative power by constitutionalizing procedural criteria. The Court answered with a consistent theme: nearly every amendment interacts with existing constitutional text; if interaction alone created a second “amendment subject,” Article XIV, Section 11 would become a sweeping anti-reform tool rather than an anti-logrolling safeguard.

3) The Court tightly limited what the Attorney General may decide pre-election

A central feature of the opinion is institutional: the Court held the Attorney General’s legal-sufficiency review (as relevant here) is aimed at the separate-vote requirement, not speculative post-adoption constitutionality. Thus, even if BI-8’s deadlines could raise separation-of-powers questions later, that possibility could not be used to deny ballot access now under the separate-vote label.

4) Government resources limitation treated as a right-protecting anti-interference rule

The Attorney General and dissents characterized the “government resources to support or oppose the ballot issue” prohibition as a distinct topic akin to electioneering regulation. The majority instead treated it as part of the “no interference” guarantee within the initiative-and-referendum right itself—an institutional neutrality principle meant to prevent the government from using its resources to tilt the playing field against (or for) citizen lawmaking.

Critically, the majority framed the provision as institutional (government resources) rather than personal (individual officials’ personal views), and declined to resolve hypothetical boundary disputes at the pre-election stage.

5) Fiscal statement authority depends on a fiscal note that “indicates a fiscal impact”

Turning to the fiscal statement, the Court applied § 13-27-226(4), MCA and held the Attorney General may append a fiscal statement only if the fiscal note “indicates a fiscal impact.” Here, the fiscal note showed zero across funds and categories. A narrative “assumption” that litigation might create costs was deemed speculative and not a determinable fiscal impact—consistent with MSRR, ¶¶ 26-32. Therefore, the appended fiscal statement was invalid and had to be stricken.

Impact

1) Separate-vote challenges: a clearer boundary between “distinct subjects” and “rights architecture”

The decision strengthens the proposition that an initiative may combine: (i) creation of a right and (ii) procedural guarantees to make that right workable, without necessarily creating multiple amendments under Article XIV, Section 11—so long as the provisions are “closely related.” Future drafters of constitutional initiatives may read Kendrick as permission to include operational detail, provided it remains tethered to a single constitutional design.

2) Constraining the Attorney General’s gatekeeping function

The Court’s repeated insistence on the narrowness of pre-election review limits the Attorney General’s ability to block measures based on predicted constitutional conflicts. Practically, that shifts many disputes to post-adoption litigation, with voters—not the Attorney General—deciding whether a comprehensive rights package should be adopted.

3) Fiscal statements: “zero impact” notes will often preclude appended fiscal statements

The holding on § 13-27-226(4), MCA signals that agencies cannot transform speculative possibilities (e.g., “may trigger litigation”) into a fiscal “impact” sufficient to justify ballot fiscal statements. The likely effect is fewer fiscal statements where the formal note quantifies no costs, and more discipline in distinguishing determinable budget effects from conjecture.

4) Doctrinal tension preserved by dissents

The dissents preview future fault lines: whether restrictions on government electioneering and hard litigation deadlines are truly “closely related” to initiative-right protection, or whether they are distinct constitutional choices voters should decide separately. Even though the majority prevailed, the dissents provide a roadmap for how opponents may frame future separate-vote challenges—especially where a “rights” amendment also regulates public-actor behavior in elections or constrains court processes with fixed deadlines.

Complex Concepts Simplified

  • Separate vote requirement (Article XIV, Section 11): If more than one constitutional amendment is on the ballot, each must be presented so voters can vote on each one separately. The goal is to prevent confusion and “logrolling” (bundling unrelated changes so voters must accept a change they dislike to get one they want).
  • “Closely related” test (from MACo): A proposal can include multiple provisions if they are all parts of one coherent constitutional change. It becomes invalid when it bundles distinct constitutional subjects that voters might reasonably want to decide separately.
  • Implied-effects doctrine: Sometimes a new amendment affects existing constitutional provisions indirectly. Courts must decide when an indirect effect is so significant that it amounts to an additional substantive amendment. The Court here cautioned against expanding this idea so far that almost any interaction becomes a separate amendment.
  • Pre-election legal sufficiency vs. post-election constitutionality: “Legal sufficiency” asks whether the measure meets ballot-submission rules (here, separate vote). “Constitutionality” asks whether the measure, if passed, violates other constitutional limits. The Court held the Attorney General cannot reject BI-8 based on speculative future constitutional disputes.
  • Strict scrutiny (“compelling interest” / “least restrictive means”): The most demanding constitutional test. If BI-8 were adopted, the government could burden initiative/referendum only if it has an extremely important objective and uses the narrowest effective approach.
  • Fiscal note vs. fiscal statement (under § 13-27-226(4), MCA): The budget director prepares a fiscal note. The Attorney General may append a fiscal statement only when that note indicates an actual fiscal impact. Speculation that costs might arise is not enough.

Conclusion

T. Kendrick v. A. Knudsen establishes two practical rules for Montana’s initiative process. First, a constitutional amendment that creates a new right and enumerates interlocking procedural protections can satisfy the separate-vote requirement when the provisions are “closely related” components of one constitutional design—especially where the Attorney General’s contrary objections are rooted in speculative post-adoption constitutional conflicts rather than distinct constitutional subjects. Second, the Attorney General may not append a fiscal statement where the fiscal note indicates zero fiscal impact; speculative litigation assumptions do not qualify as a fiscal impact under § 13-27-226(4), MCA.

The decision thus both narrows pre-election administrative gatekeeping and affirms that the separate-vote rule remains an anti-logrolling tool—not a broad veto on comprehensive, integrated constitutional reform.