Group backing abortion initiative seeks clarity from Supreme Court on next steps

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

The group behind a proposed ballot measure to enshrine abortion access in the state Constitution asked the Montana Supreme Court on Wednesday morning to clarify its order from earlier this week in the face of what it says are continued delays from the Secretary of State and Senate Republicans.

Raph Graybill, the attorney representing Montanans Securing Reproductive Rights, filed a motion for supplemental relief with the Supreme Court at 8 a.m. Wednesday saying Secretary of State Christi Jacobsen had still not provided the group a ballot petition form Ballot Initiative No.14, which the group believes the court ordered her to do “immediately” via a footnote in Monday’s order.

The footnote said that since Attorney General Austin Knudsen never found the proposal to be legally sufficient, as that finding came from the Supreme Court, that the initiative would be able to skip the interim committee review process.

The footnote in the Supreme Court’s order that says Ballot Initiative #14 does not need to go through a legislative committee review. (Screenshot via order)

Graybill told the court in Wednesday’s filing that Jacobsen’s interpretation that the footnote was “dicta” and not a binding order, which her spokesperson told the Montana Free Press earlier this week, was incorrect and that its placement in a footnote instead of the body of the order “makes no difference,” citing a 1985 case precedent.

Secretary of State’s Office spokesperson Richie Melby said late Tuesday that Jacobsen intended to comply both with the court order and with the subpoena Senate President Jason Ellsworth, R-Hamilton, sent her on Tuesday requesting copies of all materials tied to the initiative because he believes it should still go through an interim committee review.

Graybill’s filing argues that since the footnote said it does not need to go through committee review, statute says the next step is for Jacobsen to “immediately” send the group its finalized ballot petition so it can start gathering signatures.

“The Secretary’s role then concludes, until after signature collection. No other executive or legislative official may limit or delay the lawful circulation of the petition form,” Graybill wrote.

He said the word “immediately” does not mean Jacobsen can refrain from action for what is coming up on 48 hours since the court’s order on Monday. He also wrote that Ellsworth’s subpoena makes it appear that he is “intent on convening an interim committee to review CI-14 and unnecessarily delay signature collection.”

He told the court that Jacobsen’s inaction and Ellsworth’s statements and subpoena “introduce unlawful ambiguity over whether MSRR may begin signature collection, even if the Secretary provides a finalized option.”

Graybill, who is also the Democratic lieutenant governor candidate this year, asked the court for an order by the end of the day Wednesday directing Jacobsen to immediately send Montanans Securing Reproductive Rights the finalized petition and say the group can start collecting signatures.

And if Jacobsen does not do so, Graybill wrote, the group wants the court to certify a petition form for the group to start collecting signatures.

Either way, he said, the court should order that the interim committee review process, in which a committee gives an up-or-down vote on a ballot measure that is reflected on the petition form, does not apply to the initiative. Graybill wrote such an order would “resolve the unlawful ambiguity created by the Secretary and the Senate President, which cast a pall over the legitimacy of signature collection efforts.”

Graybill’s final ask of the court is that it retain jurisdiction over the particular ballot issue through the signature collection process, including sanction and contempt powers, saying Knudsen’s and Jacobsen’s actions are intended to delay the group’s signature gathering efforts.

“The continued exercise of this court’s jurisdiction is the proper and lawful method to ensure that matters concerning the initiative process are resolved quickly and with finality when, as here, opponents engage in a court of conduct engineered to introduce delay or uncertainty to the signature collection and qualification process,” Graybill wrote.

Melby did not immediately respond to an email Wednesday morning asking if Jacobsen intended to send the petition form to the group before the close of business on Wednesday.

MSRR Motion

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