Ellsworth subpoenas abortion initiative from Secretary of State after court says it can skip review

The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)

Montana Senate President Jason Ellsworth sent Secretary of State Christi Jacobsen a subpoena Tuesday ordering her to give him all copies of a ballot initiative that would enshrine abortion access in the state constitution, which the Supreme Court said on Monday needed to move ahead in the process after striking a ballot statement written by Montana Attorney General Austin Knudsen.

At issue now in the five-month saga of Ballot Initiative No.14 is the interpretation of a footnote contained in the court’s order from Monday.

“Yesterday the Montana Supreme Court was effing around in a footnote,” Ellsworth, a Republican from Hamilton, said in a statement. “Today they’re finding out what the Legislature thinks of that.”

But the subpoena also comes on the same day Ellsworth formed a select legislative committee to address what he calls violations of the separation of powers by Montana courts, which Democrats now say he is violating with the subpoena. And the group behind the initiative said he is trying to again delay the group from gathering signatures because Republicans do not want an abortion access measure on November’s ballot.

Following a court challenge by proponents of the initiative, the court wrote a new ballot statement for the abortion initiative and sent it to Jacobsen. But the footnote said that since the court, and not the attorney general, found the initiative to be legally sufficient, it did not trigger the mechanism in state statute by which proposed ballot issues go through a legislative committee for an up-or-down vote before they are approved for signature gathering.

“In this instance, the attorney general did not find that CI-14 was legally sufficient; this court overturned his deficiency determination on judicial review,” the court wrote in a 6-0 opinion authored by Justice Ingrid Gustafson. “The interim committee review process has thus not been triggered as the condition precedent—a finding of legal sufficiency by the attorney general—was not met.”

Richie Melby, the spokesperson for the Secretary of State’s Office, did not respond on Monday to questions from the Daily Montanan about what the secretary planned to do with the initiative following the ruling.

But Melby told the Montana Free Press the office was interpreting the footnote to be “dicta,” or a non-binding legal observation, and said in the past, when the Supreme Court overturned an insufficiency finding from the attorney general, the office has still sent the initiatives to a committee for review.

“We plan to comply by ministerially processing the order pursuant to the ballot language text of the order in the same manner as we have done with every other initiative that has been ordered by the Supreme Court,” Melby told the Montana Free Press.

Reached Tuesday with questions about whether the office would comply with the court order or Ellsworth’s subpoena, Melby said, “We intend to comply with both.”

But Montanans Securing Reproductive Rights, the group behind the ballot initiative, interpreted the footnote not as dicta, but as a binding decision they would be able to skip the interim committee review and move to signature gathering once they got the necessary paperwork back from Jacobsen.

On Tuesday afternoon, the group said in a statement they still believe the court’s order was clear that the initiative would not be subject to legislative review. The group had not received any materials from Jacobsen as of late Tuesday afternoon.

“While we hope that all parties involved in the next phase of this process will act in good faith, it is clear that Senator Ellsworth is attempting to create yet another delay to keep a popular abortion rights amendment away from Montana voters. Montanans Securing Reproductive rights urges the Office of the Secretary of State to forward us a finalized petition, as required by law,” the group said in a statement.

Ellsworth’s subpoena directs Jacobsen to send him a copy “of all records in the possession” of her office tied to Ballot Issue #14 no later than this Friday at noon, which he says “will be used by a legislative interim committee” to review the ballot issue.

Under legislative investigate powers, lawmakers have the power to subpoena both records and witnesses if statutory conditions are met, including stating the legislative purpose of the subpoena.

The letter threatens Jacobsen with contempt if she does not comply, which is a misdemeanor punishable by up to six months in jail or a fine of up to $500.

The committee review process was added by lawmakers in 2021 in a controversial move; it requires an interim committee to give a vote in support or against a ballot initiative, which would be reflected on the petition.

But the language in the statute says that process only starts “if the attorney general finds that a proposed statewide initiative is legally sufficient,” and Attorney General Austin Knudsen did not. The Supreme Court overturned his determination the measure was legally insufficient, then overturned the ballot statement he wrote for the proposal, also saying it was deficient to what statute requires.

Ellsworth said the Legislature “needs to have a voice in proposed laws regardless of where they originate” and that he believes Jacobsen will comply with the subpoena and force the ballot initiative to a legislative review.

Senate Minority Leader Pat Flowers, D-Belgrade, and House Minority Leader Kim Abbott, D-Helena, accused Ellsworth of violating the separation of powers, said they believe the law is clear and that Ellsworth’s subpoena “change(s) nothing.”

“If Republicans want to further infringe on the right of Montanans to use the citizens’ initiative process, they need to propose those changes next session,” the two said in a joint statement. “For them to ignore this order from the Court violates the separation of powers on which our Constitution is based, and it is an obvious breach of the rule of law.”

Ellsworth subpoena to SOS

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