History

Drafting

A. Impact of the 1889 Montana Constitution
Article XVI of the 1889 Montana Constitution provided the foundation for Article XI of the 1972 Montana Constitution. The Montana Constitutional Convention's goal was to entirely replace Article XVI of the 1889 Constitution. 1889's Article XVI §§ 1-2 were compressed into 1972's Article XI § 2. 1889's Article XVI § 3 was deleted, and 1889's Article XVI §§ 4-8 were all integrated into 1972's Article XI § 3. In addition to consolidating much of Article XVI into two sections of Article XI, the delegates also reduced the word count and clarified the language of those provisions. Mont. Const. Con. Proceedings, Index, Table of Corresponding Sections. However, most importantly, they added new sections, §§ 4-9, which altered the forms of county and municipal governments. This consolidation and expansion provides the backdrop and context for how the delegated reshaped the very nature of local government in Montana in 1972.

B. Article XI § 7
Under Article XI § 7 of the 1972 Constitution, the Constitution permits intergovernmental cooperation. In Montana, this provision was shaped by policy. Due to Montana's sparse population, many cities and counties experience difficulty providing comprehensive services to their small tax bases. Intergovernmental cooperation permits local governments to pool resources "in the exercise of any function, power, or responsibility" with "one or more other local government units, school districts, the state, or the United States." Mont. Const. Art. XI § 7(1) (1972). In sub (2), the provision also permits qualified electors to require intergovernmental cooperation by initiative or referendum.

II. Constitutional Convention Transcript of Preliminary Materials
A. Delegate Proposals (Transcript Volume I: 136, 153, 156, 254)
Delegate Proposal Number 40, referred to the Local Government Committee, recommended a new article to address local government, and it was introduced on January 27, 1972 by eight delegates. They were Delegates Felt, Drum, Sparks, Rollins, Berg, Blend, Anderson, and Studer. Delegate Proposal Number 40 said: "Subject to any limitation which the legislature may make by statute, the state, or any one or more of its units of local government, may exercise any cf [sic] their respective powers, or perform any of their respective functions and may participate in the financing thereof jointly or in cooperation with any one or more units of local government within this state or with other states, os [sic] units cf [sic] local government of other states, or with the United States." (Trans. Vol. 1 136). Interestingly, this is the only version of the Intergovernmental Cooperation provision that contemplated local governments partnering with state and local governments outside of the State of Montana.

This proposal listed two purposes for this new constitutional article: "to provide for maximum local government and intergovernmental cooperation." (Trans. Vol. 1 135). Structurally, it is unclear whether the word maximum was intended to applied to intergovernmental cooperation. However, the drafters certainly ended up authorizing a great amount of intergovernmental cooperation via the 1972 Constitution, and derivative statutes also reinforce the breadth and depth of authority that local governments have to enter into intergovernmental agreements.

The main carve out in Delegate Proposal Number 40 is unsurprising: "[s]ubject to any limitation which the legislature may make by statute…." This restriction is in keeping with the overarching boundaries placed on local governments. However in the 1972 Constitution, this restrictive language became "[u]nless prohibited by law or charter." (Mont. Const. Art. XI § 7 (1972)). The "or charter" language is likely included to align Section 7 with Sections 5 and 6.

Then, one day later on January 28, 1972, Delegate Marian S. Erdmann of the "Ucntana Constitutional Convention" introduced "Relegate Proposal NC. 56." In addition to a host of charming typographical errors, this proposal's "Intergovernmental Cccpebaticn" section is similar in content to the one proposed the previous day. "RegardlessOf [sic] home rule classifications, agreements, including those for cccperation [sic] and joint administration, and fcr [sic] transfer of functions between local subdivisions, local subdivisions and the state, or local subdivisicns [sic] and the United States, may be ccsuamated [sic] except where prchitited [sic] by law or charter." (Trans. Vol I. 156).

On February 3, 1972 a third Local Government Delegate Proposal, Number 126, was referred to the Local Government Committee by Delegate Lucile Speer. This proposal stated that: "Agreements, including those for cooperative or joint administration of any function or powers, may be made by any unit of local government with any other political subdivision, uith [sic] the state, or with the United States, unless prohibited by general law or charter." (Trans. Vol. I 254). Although the wording changed, the substance remained largely the same through all three delegate proposals.

B. Committee Report (Transcript Volume II: 783, 798-799, 1010, 1013-1015, 1074)
On February 19, 1972, the Convention received a Committee Proposal from the Local Government Subcommittee. This draft of Section 7 stated that "A local government unit by act of its governing body may, or, upon being require by initiative or referendum, shall cooperate, consolidate or agree in the exercise of any function, power or responsibility with, or share the service of an officer, or transfer or delegate any function, power or responsibility or duties of an officer to one or more other local government units, school districts, the state or the United States, unless prohibited by law or charter." (Trans. Vol. II 783).

Under the comments section, it said " Section 7 is intended to be a complete grant of authority to all local government units to cooperate in the exercise of powers and functions, share the services of the officers and transfer functions and responsibilities to other units of government. Such functional cooperation and consolidation is increasingly demanded by the rising costs of governmental services and the careless duplication of governmental services." (Trans. Vol. II 798). The comments go on to state that despite the statutory authorization to cooperate, the committee desired a constitutional mandate too.

After this initial draft, the Committee on Style, Drafting, Transition and Submission revised the language into the format that was later passed by the Montana Constitutional Convention, except for a few minor typographical errors. (Trans. Vol. II 1010). Additionally, the drafting committee clearly stated that the language was shortened and clarified but the substance was unaltered, during their revision of the provision. (Trans. Vol. II 1015).

According to the comments, there are two portions of the provision designed to enhance voter autonomy. "It specifically authorizes local residence, through the initiative, to force their local governments to cooperate and to stop senseless duplication of services. It allows the legislature or, in the case of locally drafted charters, the voters to directly prohibit certain forms of cooperation." (Trans. Vol. II 798).

C. Debate on Committee Report (Transcript Volume VII 2526, 2534-2536)
On March 16, 1972, Delegate Bugbee asked Delegate Speer a question on Intergovernmental Cooperation. (Trans. Vol. VII 2526). Chairman Murray was moderating. Delegate Bugbee was concerned with both the staffing and funding of local governments by the state government. It seems as though she was concerned with having enough staff to properly draft and execute an intergovernmental agreement, but her questions were difficult to follow. Delegate Speer struggled to understand what she was asking.

Delegate Bugbee: "I was just wondering if you gave it any thought of you-just putting in that one word?" Delegate Speer: "Pardon-Mr. Chariman, may I-ask-what was the one word? I didn't get that." Delegate Bugbee: "Well, I'm not going to put it in now; I'm going to wait till the whole article is over. But I wanted to know if you'd talked about this at all." Then, Delegate Anderson also responded to Delegate Bugbee's questions. He stated that they didn't include pages of procedural information (e.g. a self-executing charter) because they wanted to give the legislature the flexibility to adapt to changing future conditions. (Trans. Vol. VII 2526-2527).

Delegate Blend spoke on the history of intergovernmental cooperation in Montana. Although not in the 1889 Constitution, the general sentiment was codified in the Intergovernmental Cooperation Act in the 1920s. Delegate Blend used a few examples to highlight the practicality of this provision because it allowed for the "mutual purchase of a snowplow, of county equipment for repair of roads". (Trans. Vol. VII 2535). Delegate Blend also highlighted that the new language does not require the approval of the attorney of state unlike the codified version. She cited Alaska, Hawaii, Illinois, Michigan, Virginia, and Pennsylvania as having similar provisions. She concluded with the following policy argument: "They are so very valuable from the standpoint of citizenry getting together to talk over their problems, if nothing else." (Trans. Vol. VII 2535). Delegate Blend received a question from Delegate Berg about whether two governmental entities could perhaps co-own a swimming pool. Delegate Berg mentioned that the provision contained no specific reference to ownership. In order to clarify this, Delegate Berg suggested that the words "or facilities" be added to the provision, a recommendation which made it into the final ratified provision.

D. Debate on Style and Drafting Report (Transcript Volume VII 2818-2819, 2928)
The Style and Drafting Committed rewrote Section 7 in Drafting Report Number 11. The rewrite was designed to break long and involved sentences into more readable sections and subsections. On March 20, 1972, the new phrasing was adopted without opposition. (Trans. Vol. VII 2818-2819). Then, on March 22, 1972, Style and Drafting Final Report recommended the adoption of Article XI Local Government language, and they ayes had it. (Trans. Vol. VII 2928).

III. Constitutional Convention Transcript: Final Consideration and Adoption (Transcript Volume VII 2839-2840; 2940-2942)
At final consideration, Clerk Hanson introduced the provision. After the ballots were cast, the Clerk Hanson reported to President Graybill stating "Mr. President, 83 delegates voting Aye, 1 voting No." Then, President Graybill responded with "Now, Mr. Clerk, you lost me. Tell me what the vote is." Clerk Hanson repeated himself. Then, President Graybill said "Very well, Section 7 is adopted. Section 8," and with that the delegation moved on to the next provision. (Trans. Vol. VII 2839). Although there were several absent or excused delegates, Delegate Holland was the only one to vote Nay on Article XI § 7.

All in the final consideration and adoption process proceeded smoothly. For the Local Government Article, it was normal to have one or two Nay votes on individual sections. Delegate Holland had been absent for all of Article XI until Section 7 was put to vote. He remained afterward and voted in favor of Section 8 and against Section 9. The adoption of Article XI proceeded smoothly; when put to a vote, Article XI was adopted with 96 delegates in its favor. However, one lone delegate voted against adopting the local government article: Delegate Holland. Delegate Holland was a democrat from Butte (District 20) with six children. He obtains his law degree from the University of Montana. He served as Assistant Attorney General and as a US Commissioner. (Trans. Vol. I 48). Despite Delegate Holland's mixed feelings on Article XI, the Delegates in large stood behind both Section 7 specifically and Article XI in general.