Abortion initiative group asks Supreme Court to force Jacobsen to issue ballot petition

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

The attorney for the group trying to get an amendment to enshrine abortion access in the Montana constitution onto November’s ballot filed another request with the Supreme Court Thursday to force the Secretary of State to provide the group with the ballot petition so it can start collecting signatures.

The latest filing is a request for a writ of mandamus, which the court told Montanans Securing Reproductive Rights’ attorney, Raph Graybill, late Wednesday afternoon was the proper procedure to try to compel Secretary of State Christi Jacobsen to give the group its ballot petition form.

Writs of mandamus are issued by the Supreme Court to “compel the performance” of a legal duty.

“I am aware that the Attorney General has argued that MSRR is the ‘master of the timing of its initiative,” Graybill told the court in an affidavit supporting the motion. “This is not true, however, when MSRR is forced to litigate serially against the Attorney General and, now, the Secretary based on the delays introduced by their handling of the initiative.”

After Graybill asked the court on Wednesday morning for an order forcing Jacobsen’s compliance with another order from Monday’s decision, four justices denied the request just before 5 p.m., saying that his request for supplemental relief was not the proper motion and that he needed to file a request for a writ of mandamus.

Attorneys for Jacobsen and Attorney General Austin Knudsen also said they wanted to respond to Graybill’s request and asked the court to set a briefing schedule.

Along with denying the request for supplemental relief and telling Graybill to file a writ of mandamus request, the justices said the court indeed had found in Monday’s order that the mechanism by which a ballot initiative has to go before a legislative committee for review was not met because the court, and not Knudsen, found the proposal to be legally sufficient.

The court also ordered Jacobsen and Knudsen to respond by noon next Monday to the filing about whether the legislature has any review power over the initiative at this point, and if the Supreme Court should retain jurisdiction over Ballot Initiative No.14 through the signature gathering phase.

Graybill wrote in Thursday’s request that he understood after talking with Jacobsen’s chief legal counsel on Tuesday morning that Jacobsen would respond to the group’s request for a final petition that day. But he said Tuesday and Wednesday came and went and the group still had not received the petition on Thursday morning.

Thursday’s request again restates that the court on Monday wrote the ballot statement for the initiative and delivered it to Jacobsen, saying it did not need to go through legislative committee review, and that the group believes the law says that the only possible next step is for her to “immediately” provide the group with the finalized ballot petition.

Graybill included an exhibit showing that she issued a sample petition in just one day after Knudsen wrote his ballot statement for the measure in late March, which was also overturned by the Supreme Court.

He told the court that Jacobsen continues to delay their efforts to start collecting signatures – around 66,000 of which the group believes it will need to collect for the issue to make November’s ballot – and that she could moot the ongoing legal battle by giving the group the petition.

Graybill also outlined the responses he believes will come from Jacobsen by Monday, including that the finding the initiative wouldn’t need to go through the legislature was incorrect; that she can decide the initiative is somewhere else in the process; and that Senate President Jason Ellsworth sent her a subpoena for copies of all materials related to the measure, with the intention of sending it through the committee nonetheless. And he wrote they will all be incorrect.

“This petition does not seek the Court’s review of any legislative action. There is no basis in the statutory framework for ballot issue qualification for the Secretary to delay processing a ballot issue because of a purported legislative subpoena,” Graybill told the court.

He asked the court to order that Jacobsen respond to the request by the close of business on Friday, saying she is “well-acquainted with the ministerial duties at issue in this matter” and was already ordered by the court to send the group the petition on Monday. He also asked the court to issue a preemptory writ and require Jacobsen to say why she hadn’t complied with the order within 24 hours.

A spokesperson for the Secretary of State’s Office did not respond to questions Wednesday or immediately Thursday about if, or when, Jacobsen intends to provide the group with the petition.

The executive directors for Planned Parenthood Advocates of Montana, Forward Montana, and the ACLU of Montana, which make up Montanans Securing Reproductive Rights, said in a statement they were doing “everything we can” to try to get the measure on November’s ballot.

“The Secretary of State cannot withhold a finalized petition in an attempt to further delay our effort to qualify this critical amendment,” the group said. “Politicians have prioritized stripping away Montanans’ right to abortion and we know that people cannot wait any longer.”

OP 24-0214 Writ - Mandamus -- Petition

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