The Montana Supreme Court does not—and should not—hesitate to refuse to “march lock-step” with the United States Supreme Court, “even where the state constitutional provision at issue is nearly identical to its federal counterpart.” However, in interpreting Montana’s constitutional restriction on special legislation, the Court has done the opposite, applying a federal constitutional test to a state constitutional provision with no federal counterpart.
Article V, Section 12 of the Montana Constitution provides: Local and special legislation. The legislature shall not pass a special or local act when a general act is, or can be made, applicable.
Section 12 can and should serve the Legislature and the people as a unique and meaningful protection of the democratic process. This paper explores and advocates for a return to the meaning of Montana’s constitutional restriction on special legislation.
Constance Van Kley, Article V, Section 12 of the Montana Constitution: Restoring Meaning to a Forgotten Provision, 79 Mont. L. Rev. 115 (2018).