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In re Miscellaneous Supreme Court Orders

Supreme Court of Montana

June 23, 2017

IN RE MISCELLANEOUS SUPREME COURT ORDERS

         A JOINT RESOLUTION OF THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA TO DEFINE THE PHRASE "SHALL NOT BE CALLED IN QUESTION" AS USED IN ARTICLE II, SECTION 12, OF THE MONTANA CONSTITUTION.

         WHEREAS, the current language at Article II, section 12, of the Montana Constitution was first articulated in the Montana Territorial Constitution of 1884; and

         WHEREAS, this language was repeated in the Montana Statehood Constitution of 1889 and was also approved by the other several states via Congress; and

         WHEREAS, this exact language was repeated verbatim by the Montana Constitutional Convention of 1972, which was approved by the electors of Montana; and

         WHEREAS, there is no authoritative definition existing of the phrase "shall not be called in question" that is applied in Article II, Section 12; and

         WHEREAS, the phrase "shall not be called in question" is understood to be the strongest form of prohibition that the framers could imagine and express using polite language; and

         WHEREAS, the phrase "shall not be called in question" is understood to be a prohibition imposed by the electors of Montana specifically on government policy, government entities, and government actors; and

         WHEREAS, in response to a question about what the phrase "shall not be called in question" meant as used in the proposed Article II, section 12, of the Montana Constitution in the 1972 Constitutional Convention, Delegate and Chairman of the Bill of Rights Committee Wade Dahood responded that the phrase meant "that the right shall remain inviolate and shall not be questioned by any person in authority" (transcript of the 1972 Montana Constitutional Convention, Volume 5, Page 1739); and

         WHEREAS, the maxims of jurisprudence found at Title 1, chapter 3, part 2, of the Montana Code Annotated are examples of guidance in interpretation of laws.

         NOW, THEREFORE, BE IT RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA:

         That the phrase "shall not be called in question, " as used in Article II, section 12, of the Montana Constitution, is defined as follows:

         (1) Any impairment, restriction, or curtailment of a person's rights under Article II, section 12, of the Montana Constitution by public policy or governmental actors may not be done unless such impairment, restriction, or curtailment survives an examination more restrictive than strict scrutiny, a level of restraint identified as maximum scrutiny and that meets the criteria provided in subsection (2).

         (2) To survive maximum scrutiny requires the following:

(a) A government interest is actually proven and so complete that without impairment, restriction, or curtailment human lives will actually and imminently be at serious risk, or be lost, as demonstrated by ...

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