“No Emergency of One’s Own Making” – The Montana Supreme Court Clarifies Timeliness and Factual Sufficiency for Original Jurisdiction Petitions

1. Introduction

On 1 July 2025, the Supreme Court of Montana delivered its decision in F. Rhodes, J. Addy & Montana Life Defense Fund v. State of Montana (OP 25-0408). The petitioners sought an original declaratory judgment under Montana Rule of Appellate Procedure 14(4) to invalidate Constitutional Initiative No. 128 (“CI-128”), an abortion-rights amendment approved by 58 % of voters in November 2024. They alleged that because the full text of CI-128 did not appear on the printed ballots, Election-Day registrants—who do not receive mailed Voter Information Pamphlets (VIPs)—were deprived of constitutional notice, rendering the initiative void.

The Court dismissed the petition, holding that:

• The petitioners manufactured any alleged emergency by waiting seven months to file, thereby failing Rule 14(4)’s urgency requirement.
• Whether the electorate saw the full text of CI-128 is a factual question inappropriate for original jurisdiction, especially where petitioners supplied only two personal declarations and omitted the Secretary of State as a party.

2. Summary of the Judgment

The Court unanimously denied and dismissed the petition for declaratory judgment. Key holdings include:

1. No self-created emergency: Re-affirming Hen v. Sixteenth Judicial District and State v. First Judicial District, the Court ruled that parties cannot obtain extraordinary relief when their own delay prevents normal trial-court litigation.
2. Pure legal questions absent: The challenge hinged on factual allegations (whether Election-Day registrants lacked access to the initiative text). Such disputes belong in district court, not in an original proceeding.
3. Sufficient publication shown on face of record: The Constitution (Art. XIV § 9) and § 13-27-311, MCA, require publication “as provided by law,” which the Secretary of State satisfied through newspaper notices, VIP mailings, precinct copies, and a public website.

3. Analysis

3.1 Precedents Cited

• Hen v. Montana Sixteenth Judicial District Court (2024) – Summarily denied supervisory control due to petitioner’s delay; cited for the maxim that emergencies cannot be self-generated.
• State v. Montana First Judicial District Court (2022) – Likewise rejected extraordinary relief where the State waited nine months; reinforced diligence requirement.
• State ex rel. Montana Citizens for Preservation of Citizen’s Rights v. Waltermire (1987) – Established that due process in initiative votes is satisfied when voters are informed by or with the ballot and given a fair opportunity to review the full text via publication; quoted but ultimately undercut petitioners’ argument.
• Montana Constitutional Convention Debates (1972) – Delegates intentionally replaced a rigid “newspaper-only” publication mandate with “as provided by law,” anticipating future media; the Court relied on this history to validate modern dissemination methods (websites, etc.).

3.2 Legal Reasoning

1. Rule 14(4) Threshold. Original proceedings require (a) urgency/emergency; (b) inadequacy of trial courts; (c) pure questions of law; and (d) statewide importance. The Court found (a) and (c) unsatisfied.
2. Self-Created Urgency. The petition was filed nearly seven months after the election. Citing Hen and First Judicial District, the Court reiterated that delays bar extraordinary relief.
3. Factual Vacuum. Petitioners provided only two declarations without explaining why statutory channels (newspaper notices, precinct VIP copies, online materials) failed. The Court emphasised the absence of affidavits addressing:
   • Whether their precinct lacked VIP copies
   • Whether the Secretary of State failed statutory publication duties
   • The number of Election-Day registrants affected or potential outcome change
4. Procedural Deficiencies. Petitioners neither attached the ballot (contrary to Rule 14(5)(iv)) nor served the Secretary of State—the primary actor whose conduct was challenged.
5. Constitutional & Statutory Scheme Upheld. Art. XIV § 9(2) ties the Secretary’s duty to statute (§ 13-27-311, MCA). “As provided by law” means the Legislature may choose any medium suited to reach voters. The Court catalogued the multiple access points available to Election-Day registrants.

3.3 Impact of the Judgment

• Higher bar for original jurisdiction petitions. Litigants must demonstrate both timeliness and a record devoid of factual disputes. Diligence now stands as a doctrinal gatekeeper.
• Publication obligations clarified. The decision endorses modern digital dissemination as satisfying constitutional publication requirements, providing guidance for future initiative challenges.
• Election litigation funnelled to district courts. The Court signals reluctance to adjudicate first-instance factual controversies surrounding election procedures, encouraging full evidentiary development below.
• Strategic considerations for advocacy groups. Entities opposing enacted initiatives must act swiftly, compile comprehensive evidence, and join indispensable parties (e.g., Secretary of State) or risk procedural dismissal.

4. Complex Concepts Simplified

• Original Jurisdiction (Rule 14(4)): A narrow doorway allowing the Montana Supreme Court to hear certain cases first—bypassing trial courts—only when (1) an emergency exists and (2) the matter involves pure legal questions.
• Self-Created Emergency: A litigant cannot delay action and then claim a last-minute crisis; courts treat such urgency as “manufactured” and deny expedited relief.
• Publication “as provided by law”: Instead of listing specific media in the Constitution, Montana delegates deferred to the Legislature to decide how proposals reach voters—allowing adaptation to new technologies (online posting, audio versions, etc.).
• Election-Day Registrants: Voters who register on election day under Montana’s same-day registration law; unlike pre-registered voters, they are not mailed materials but have access to VIPs at polling places and online.
• Declaratory Judgment: A court’s binding statement on the legality of a statute or action, issued without awarding damages or injunctions; petitioners sought such judgment to void CI-128.

5. Conclusion

The Montana Supreme Court’s decision in Rhodes v. State establishes a firm boundary around the Court’s original jurisdiction: petitioners must act promptly, join necessary parties, and present undisputed facts that frame pure legal questions. By dismissing an eleventh-hour challenge to CI-128, the Court not only preserved the electorate’s 2024 vote but also fortified procedural safeguards against strategic delays in election litigation. Further, the opinion modernises the concept of constitutional “publication,” implicitly approving digital platforms as adequate notice to voters. Advocates and litigants must now heed this precedent: courts will not rescue them from crises of their own procrastination, and factual development belongs in trial courts—not in rushed appeals to the state’s highest bench.