Cummings v. Kelly: Minor “Approximate” Fiscal Errors Do Not Invalidate Mill Levy Charter Amendments; Bond-Election Contest Statutes Inapplicable

Introduction

In Cummings v. Kelly, 2025 MT 68, the Montana Supreme Court affirmed dismissal of a citizen challenge to a municipal election that amended the City of Great Falls’ self-governing charter to permanently authorize a dedicated levy of up to 17 mills for the Great Falls Public Library. The plaintiffs, Beth Cummings and Dena Burnham Johnson, sought to annul or void the election on constitutional and statutory grounds, contending that ballot and notice materials were inaccurate and misleading—most notably because the ballot overstated the approximate revenue associated with a 15-mill increase by $45,000 and did not disclose a separate, longstanding city agreement to provide the library with at least seven mills of general revenue.

After the Eighth Judicial District Court dismissed the petition under M. R. Civ. P. 12(b)(6) and denied leave to amend under M. R. Civ. P. 15(a)(2), the plaintiffs appealed. The Supreme Court addressed two questions:

Whether the complaint stated a legally cognizable claim (suffrage, due process, and statutory violations) sufficient to survive Rule 12(b)(6); and
Whether the district court abused its discretion in denying leave to amend as futile and prejudicial.

Summary of the Opinion

The Court affirmed in full. Key holdings include:

A minor, 3% mathematical overstatement in ballot materials—preceded by the term “approximately”—does not violate due process or the fundamental right of suffrage where the ballot clearly states the measure’s purpose and effect and voters are not misled as to what they are voting for or against.
A city’s separate, discretionary general-revenue funding commitment (here, a 1993 agreement to support the library with at least seven mills of general revenue) is not part of a charter levy authorization and need not be included in the charter-amendment question; omitting it does not invalidate the election.
The statutory scheme for contesting bond elections in § 7-7-105, MCA, does not apply to mill levy elections; a library mill levy is not a bond election or the issuance of “other obligations.”
Title 13 election-law remedies (§§ 13-35-107, -108, MCA) provide relief only for violations of Title 13; plaintiffs did not plead such violations. Mill levy elections are governed principally by § 15-10-425, MCA, and notice requirements in § 13-1-108, MCA, which were satisfied.
There is no requirement to conduct separate elections for a charter amendment and its substantive levy authorization where the governing body proceeds by ordinance and submits the charter amendment as contemplated by §§ 7-3-103 and 7-3-149, MCA; the single ballot that both referenced and effected the charter amendment complied with law.
The public-meeting notice statute (§ 7-1-4127, MCA) is inapplicable to election notice; the controlling election-notice provision is § 13-1-108, MCA.
Leave to amend was properly denied as futile and prejudicial: the proposed amendments did not cure legal defects and would have restarted litigation after the defendants had fully briefed dismissal.

Analysis

Precedents Cited and Their Influence

Montanans Against Tax Hikes v. State, 2018 MT 201: The Court relied on this decision to reaffirm that a ballot statement containing a mathematical misstatement can still pass constitutional muster if, in summary fashion, it captures the measure’s purpose and fiscal impact and does not mislead voters about what their vote means.
State ex rel. Montana Citizens for the Preservation of Citizens’ Rights v. Waltermire, 227 Mont. 85, 738 P.2d 1255 (1987): Provided the due process framework—voters must be informed about the subject of the amendment, have a fair opportunity to consider its full text, and must not be deceived by ballot language.
Willems v. State, 2014 MT 82: Reaffirmed that suffrage is a fundamental right under the Montana Constitution.
Burns v. County of Musselshell, 2019 MT 291, quoting Big Spring v. Jore, 2005 MT 64: Clarified that suffrage can be denied via dilution or debasement of vote weight; the Court used this to examine whether any alleged defects actually diluted or debased votes.
Burger v. Judge, 364 F. Supp. 504 (D. Mont.), aff’d, 414 U.S. 1058 (1973): Cited by the district court to underscore that plaintiffs were not deprived of the right to vote or misled in a manner that debased their votes; the Supreme Court’s analysis aligned with that conclusion.
Plouffe v. State, 2003 MT 62; Anderson v. ReconTrust Co., 2017 MT 313: Set the 12(b)(6) standard—accept well-pleaded facts as true, construe in the plaintiff’s favor, and review de novo.
Advocates for School Trust Lands v. State, 2022 MT 46: Informs that futility of amendment is reviewed de novo and that leave can be denied where amendment would not save the claim.
Saddlebrook Investments, LLC v. Krohne Fund, L.P., 2024 MT 68; Rolan v. New West Health Servs., 2017 MT 270; Kershaw v. MDT, 2011 MT 170; Bitterroot Int’l v. Western Star Trucks, 2007 MT 48; Ally Financial, Inc. v. Stevenson, 2018 MT 278: Together, these cases provided the standards for abuse of discretion on leave to amend, prejudice analysis, and when courts properly deny amendment for futility and undue prejudice.

Legal Reasoning

Constitutional Claims: Suffrage and Due Process

The plaintiffs did not allege they were prevented from voting; instead, they argued their suffrage was violated by confusion stemming from inconsistent or misleading information. The Court began by distinguishing factual allegations from legal conclusions, noting that “facts” (e.g., the $45,000 error and the separate seven-mill general support agreement) would be accepted for purposes of Rule 12(b)(6), but broad conclusions (e.g., that the election was invalid or results unascertainable) would not.

Applying the suffrage-dilution framework, the Court found no debasement or dilution. The ballot and related materials clearly stated the measure’s purpose and effect: a permanent authorization of “up to 17 mills” for the library, which constituted “an increase of 15 mills.” The omission of the City’s discretionary general-revenue commitment of seven mills from the ballot was not misleading because that commitment was not an earmarked levy or a component of the Charter’s mill levy limit; it arose from a separate agreement and remained discretionary. The ballot itself clarified that the levy “is in addition to any other mill levies authorized by Charter or law,” further reducing any risk of confusion.

On due process, the Court reiterated that voters must be apprised of the amendment’s subject, have a fair opportunity to consider its full text, and not be deceived by the ballot’s words. The ordinance, resolution, ballot, and notice collectively satisfied these requirements. The $45,000 overstatement—only about 3%—was preceded by the word “approximately.” Under Montanans Against Tax Hikes, such a minor mathematical misstatement does not render a ballot misleading when the purpose and fiscal implications are conveyed in summary fashion. The Court thus concluded no due process violation occurred.

Statutory Claims: Title 15 Mill Levy Elections, Title 13 Remedies, and Inapplicable Bond-Election Statutes

Mill levy elections are governed by § 15-10-425, MCA, with notice under § 13-1-108, MCA. The City proceeded by ordinance and resolution, stated the purpose (library operations, maintenance, and capital needs), the number of mills (up to 17), an approximate amount to be raised, and the permanence of the levy. Notice was published four times within the statutory window. Although the notice was not word-for-word identical to the resolution, it “reflected the content” required by statute.
Bond election contest statute (§ 7-7-105, MCA) is inapplicable. The Court rejected plaintiffs’ attempt to invoke bond-election procedures. A library mill levy is not the issuance or sale of bonds or “other obligations,” nor is it a levy “for the payment of such bonds or other obligations.” The election at issue was not a bond election, rendering §§ 7-7-105 and -106 irrelevant.
Title 13 remedies (§§ 13-35-107, -108, MCA) require a violation of Title 13. Plaintiffs did not allege violations of Title 13’s provisions governing election administration (e.g., registration, voting procedures, or notice compliance). Rather, their claims centered on the substance of a charter amendment and levy authorization under Title 15. Without pleading particularized Title 13 violations, Title 13’s voiding and injunction remedies were unavailable.

Charter Amendment Mechanics and “Single-Ballot” Submission

Plaintiffs argued that §§ 7-3-103 and 22-1-304, MCA, required a separate vote on the charter amendment apart from the levy question. The Court disagreed. Montana law permits a charter amendment to be proposed by ordinance and submitted to the electors. Here, the ballot both referenced the charter amendment and set forth the levy authorization in one question. The Court held that a separate election was not required; the single-ballot approach complied with §§ 7-3-103 and 7-3-149, MCA.

Election Notice vs. Public-Meeting Notice

Plaintiffs sought to rely on § 7-1-4127, MCA, but the Court explained that this section concerns public-meeting notice, not election notice. Election notice is governed by § 13-1-108, MCA. The record showed compliance with the latter. The Legislature’s 2023 amendment to § 7-1-4127 clarified the statute’s meeting-focused scope, underscoring its inapplicability to elections.

Ballot Drafting: Omission of “Additional” and the Seven-Mill Agreement

The plaintiffs objected that the word “additional” was omitted from the amended charter text and that the seven-mill City agreement was not disclosed as part of the ballot measure. The Court found neither point fatal. The measure clearly asked voters to amend the charter to authorize “up to 17 mills,” constituting an “increase of 15 mills.” Because the seven-mill commitment was general revenue, not a chartered levy, it did not belong in the charter’s levy limit and its omission from the measure was not misleading.

Denial of Leave to Amend: Futility and Prejudice

The plaintiffs moved to amend after briefing on the motion to dismiss concluded, seeking to add statutory arguments that could have been raised earlier. The Court held amendment would be futile because:

The single-ballot approach did not violate §§ 7-3-103 or 22-1-304, MCA;
Public-meeting notice provisions (§ 7-1-4127, MCA) do not govern election notices; and
The “additional” language and seven-mill agreement theories did not render the ballot misleading or the election invalid.

The Court also upheld the district court’s prejudice finding: allowing amendment post-briefing would effectively reset the litigation, wasting the defendants’ substantial effort and expense. Balancing prejudice against plaintiffs’ justification for delay, the Court concluded denial of leave to amend was within the district court’s discretion.

Fact vs. Legal Conclusion: A Pleading Gatekeeper

The Court emphasized a basic but often dispositive principle: on a Rule 12(b)(6) motion, well-pleaded facts are taken as true, but legal conclusions are not. Plaintiffs’ assertions that defects “rendered the election invalid” or “affected the free and intelligent casting of votes” were legal conclusions. The factual premises (e.g., a 3% overstatement and non-disclosure of a discretionary general-revenue commitment) did not, as a matter of law, amount to constitutional or statutory violations.

Impact

Ballot drafting in mill levy elections: Minor numerical discrepancies framed as “approximate” and amounting to small percentage deviations will not, without more, invalidate a measure if the ballot clearly communicates purpose, scope, and effect.
Separation of funding streams: Cities need not fold discretionary, general-revenue commitments into charter levy authorizations. Ballots may focus on earmarked levy changes without restating separate general-fund policies or agreements.
Contesting municipal finance measures: Plaintiffs cannot use bond-election contest provisions (§ 7-7-105, MCA) to attack mill levy charter amendments. Challenges must fit the correct statutory scheme—primarily Title 15 and any specific, pleaded violations of Title 13.
Single-ballot charter amendments: When a governing body proposes a charter amendment by ordinance, it may submit the amendment and the associated levy authorization in a single ballot question, provided statutory content and notice requirements are met.
Litigation strategy and amendment timing: Courts may deny leave to amend where proposed new theories were available earlier, would not cure legal defects, and would unduly prejudice defendants who have already briefed dismissal.

Complex Concepts Simplified

Mill / Mill Levy: A “mill” is one-tenth of a cent ($0.001) of tax per dollar of assessed value. A mill levy authorizes a set number of mills to be collected each year for a specified purpose.
Self-Governing Charter: A city charter adopted under Mont. Const. art. XI, § 6, granting the municipality broad, liberally construed powers unless prohibited by constitution, statute, or the charter.
Bond Election vs. Mill Levy Election: Bond elections authorize the issuance and sale of debt securities; mill levy elections authorize tax rates. Different statutes govern each, and remedies available for bond election contests do not automatically extend to mill levies.
“Approximately” in Ballot Language: Signals that dollar amounts are estimates. Small errors consistent with approximation ordinarily do not mislead voters where the measure’s purpose and effect are clear.
Due Process in Ballot Measures: Voters must understand the subject of the measure and not be deceived by the ballot’s wording; perfect precision is not required if the statement fairly informs voters.
Rule 12(b)(6) vs. Rule 15(a)(2): Rule 12(b)(6) tests whether a complaint states a claim, taking factual allegations as true but not legal conclusions. Rule 15(a)(2) allows amendments when justice so requires but not when amendment would be futile or unduly prejudicial.

Conclusion

Cummings v. Kelly crystallizes several practical and doctrinal points for Montana municipal elections:

Small, clearly “approximate” fiscal misstatements do not, by themselves, void a ballot measure, particularly when the measure’s purpose and effect are unambiguous.
General-fund commitments distinct from chartered levies need not be integrated into charter amendment ballots.
Bond-election contest statutes do not govern challenges to mill levy charter amendments; Title 13 remedies require pleaded Title 13 violations; and § 13-1-108 controls election notice.
Charter amendments proposed by ordinance may be submitted in a single ballot question that both references and effects the amendment, consistent with §§ 7-3-103 and 7-3-149, MCA.
Courts will deny late, futile amendments that would prejudice defendants by reopening already-briefed motions.

The decision provides municipalities and drafters with clearer guardrails for designing ballot language in fiscal measures and offers litigants a sharper map of the statutory terrain for election challenges. It underscores a pragmatic throughline in Montana election jurisprudence: voters must be fairly informed, not perfectly informed, and litigation must track the right statutory scheme with concrete, cognizable violations.