Opinion
OP 24-0214
04-04-2024
MONTANANS SECURING REPRODUCTIVE RIGHTS, and SAMUEL DICKMAN, M.D., Petitioner, v. CHRISTI JACOBSER In her Official Capacity as Montana Secretary of State, Respondent.
ORDER
Montanans Securing Reproductive Rights and Samuel Dickman, M.D. ("MSRR") have petitioned this Court for a writ of mandamus to direct Montana Secretary of State Christi Jacobson to perform her legally mandated duty to immediately send MSRR a finalized petition form for Constitutional Initiative 14 ("CI-14") as required by § 13-27-233(1), MCA.
MSRR attaches an affidavit in accordance with § 27-26-201, MCA. MSRR further alleges, and provides exhibits in support of its allegations, that it wrote to Jacobson within two hours of this Court's April 1, 2024 Opinion and Order in MSRR v. Knudsen, 2024 MT 67,___Mont.___,___P.3d___("MSRR II"), and requested that she immediately provide a sample petition form as required by § 13-27-233(1), MCA. Although MSRR and representatives from Jacobson's office have had further communications, no finalized sample petition form has been forthcoming. MSRR alleges that, without a sample petition form approved by the Secretary of State, it cannot collect signatures as this is the only form that may be used for signature collection under § 13-27-233(2), MCA. MSRR further advises us that it provided notice to Jacobson's counsel on the evening of April 3, 2024, that it intended to seek a writ of mandamus, but it did not receive a response by the time it filed the present petition on the morning of April 4, 2024.
M. R. App. P. 14(2) provides that original proceedings commenced in this Court to obtain writs, including writs of mandate or mandamus, shall be commenced and conducted in the manner prescribed by the applicable statutes. Section 27-26-102, MCA, provides in relevant part that this Court may issue a writ of mandamus to compel the performance of an act that the law specially enjoins as a duty resulting from an office, and that the writ must be issued in all cases in which there is no plain, speedy, and adequate remedy in the ordinary course of law. In this instance, we agree with MSRR no plain, speedy, or adequate remedy exists in the ordinary course of law as this matter concerns the procedure for statewide ballot initiative and this Court has previously recognized the need for expedient resolution of disputes regarding CI-14. See MSRR II, ¶ 9.
We held in our April 1, 2024 Opinion and Order that the Legislature's review by interim committee did not apply in this case because § 13-27-228(1), MCA, includes a condition precedent that the Attorney General must find the proposed statewide initiative legally sufficient in order to trigger the interim committee review process. MSRR II, ¶ 9 n.2; § 13-27-228(1), MCA (providing, in relevant part, "If the attorney general finds that a proposed statewide initiative is legally sufficient as provided in this part, the secretary of state shall----"). We are bound by the plain meaning of the words used in the statute. Our role is "simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA.
Section 27-26-203, MCA, provides that a writ may be either alternative or peremptory. "The alternative writ must state generally the allegation against the party to whom it is directed and command the party, immediately after the receipt of the writ or at some other specified time, to do the act required to be performed or to show cause before the court, at a specified time and place, why the party has not done so."
In this instance, we conclude that an alternative writ is appropriate.
Therefore, in accordance with Title 27, Chapter 26, of the Montana Code Annotated and M. R. App. P. 14(7),
IT IS ORDERED that Montana Secretary of State Christi Jacobsen shall comply with § 13-27-233, MCA, and provide MSRR with a finalized sample petition for CI-14 no later than 1:00 p.m. on Friday, April 5, 2024. Such finalized sample petition shall substantially comply with the format provided in § 13-27-241, MCA, except that, because interim committee review was not authorized pursuant to the express language of § 13-27-228(1), MCA, the finalized sample petition shall omit the language regarding interim committee review. The finalized sample petition shall further comply with this Court's previous orders, including the ballot statement as certified by this Court, MSRR II, ¶ 30, and shall clearly state that the finalized sample petition is approved for signature collection.
IT IS FURTHER ORDERED THAT, concurrent with providing the finalized sample petition to MSRR, Jacobson shall file notice of such with this Court. If Jacobson fails to comply with this Order in the time specified by this Court, she shall prepare, file, and serve a response to the petition for writ of mandamus no later than noon on Monday, April 8, 2024, and SHOW CAUSE why Jacobsen should not be held in contempt of Court.
The Clerk is directed to immediately provide a copy of this Order to all counsel of record.