Montana State Legislature

An emergency is defined as "the imminent threat of disaster", which includes "an outbreak of disease" that causes "immediate peril to life or property that timely action can avert or minimize". (10-3-103(4) and (8), MCA) The Legislative Services Division has compiled a summary of the executive's authorityas a provided in the order.

The law authorizes the Governor to:

• suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;
• direct and compel the evacuation of all or part of the population from an emergency or disaster area within the state if the governor considers this action necessary for the preservation of life or other disaster mitigation, response, or recovery; and
• control ingress and egress to and from an incident or emergency or disaster area, the movement of persons within the area, and the occupancy of premises within the area.

Once an emergency is declared, the Governor is authorized to incur liabilities and expenses from the general fund. A declaration of emergency also allows the Governor to access the general fund through a statutory appropriation of up to $16 million in a biennium. In the event the federal government offers to the state certain services and materials, the governor also may accept the offer and those funds are statutorily appropriated.  (10-3-311(1), MCA; 10-3-312, MCA; 17-7-502, MCA)

The Department of Public Health and Human Services also has broad duties to address an emergency involving an outbreak of disease. (50-1-202, MCA) These include the duty to:

• disseminate information and make recommendations for control of diseases and other conditions of public health importance;
• at the request of the Governor, accept funds for and administer any federal health program for which responsibilities are delegated to states;
• identify, assess, prevent, and mitigate conditions of public health importance through
  • screening and testing programs;
  • isolation and quarantine measures;
  • treatment;
  • collecting and maintaining health information; or
  • other public health measures as allowed by law.

The Department also consults with school and local public health personnel, the Superintendent of Public Instruction on conditions of public health importance for schools, and local boards of health. (50-1-202, MCA)

In summary, a state of emergency may not continue for longer than 30 days, unless continuing conditions of the state emergency exist, which must be determined by a declaration of an emergency by the president of the United States or by a declaration of the Legislature by joint resolution of continuing conditions of the state of emergency (10-3-302(3), MCA). A state of disaster may be declared by the governor, but section 10-3-303(3), MCA, provides a state of disaster may not continue for longer than 45 days unless continuing conditions of the state of disaster exist.

An outbreak of disease is defined as a disaster under 10-3-103(4), MCA. Emergency means the imminent threat of a disaster causing immediate peril to life or property that timely action can avert or minimize.

The Legislature may terminate or extend a state of emergency or disaster by joint resolution. After termination of the state of emergency or disaster, disaster and emergency services required as a result of the emergency or disaster may continue.

The key for both the emergency and disaster declarations to be extended is if there are U.S. presidential declarations in place. On March 13, 2020, President Trump issued a proclamation declaring a national emergency. It states, "the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020."
 

Montana law grants the Governor and the Department of Labor and Industry with broad authority to adjust benefits and eligibility for UI in the event of a disaster. This authority is outlined in state laws pertaining to emergencies for the UI program, statutes pertaining to the Governor’s authority during an emergency, emergency rulemaking provisions contemplated under the Montana Administrative Procedure Act, and authority vested by federal statutes. (39-51-301(5), MCA; 10-3-104, MCA; 2-4-303, MCA) Adjustment of UI eligibility, administration, and payments appears to be within the emergency authority vested in the Governor and Department.

The Governor, the Department of Public Health and Human Services, Local Boards of Health, and Principal Executive Officers have broad and specific statutory authority related to isolation and quarantine measures to potentially close bars and restaurants to take-out only.  (Governor and Local Health: 10-3-104, MCA; 50-1-101, MCA; 50-1-202, MCA; 50-1-204, MCA; 50-2-116, MCA; 50-2-118, MCA) and (Local Government Principal Executive Officer: 10-3-103, MCA; 10-3-402, 403, 406, MCA)

On March 25, 2020, the governor issued a directive extending the deadline for all-mail ballot election plans for the May 4^th school elections and allowing counties to conduct the June 2^nd primaries as all-mail ballot elections. Counties are authorized to determine how best to proceed. The directive is available here.

Election dates are set by state statute and, with the exception of special elections that may crop up from time to time, are typically set according to a long-standing schedule. Election officials spend months planning an election, including what would happen if there were to be an emergency on Election Day. NCSL has gathered information on this issue from around the country. It can be viewed here. Montana law also provides some guidance on the subject.

Under Montana law, an election administrator can change the location of a polling place if an emergency occurs 10 days before an election. (13-3-105, MCA)  In addition, the Secretary of State is authorized to exempt a polling place from certain accessibility requirements if an emergency occurs within 10 days before an election; for this purpose, an emergency is considered to exist if a polling place becomes unavailable by reason of loss of lease, fire, snow, or natural disaster. (13-3-211, MCA)

State law also allows a school election to be rescheduled if the governor declares a state of emergency or disaster. (20-20-108, MCA)

An elector with a health emergency may apply for an absentee ballot after the regular deadline and until the close of polls on election day. An absentee ballot requested because of a health emergency also may be delivered to the ill elector at their “place of confinement, hospitalization, or residence within the county”. (13-13-211 and 212, MCA)  

In accordance with 10-3-104, MCA, after issuing an executive order and declaring an emergency, the governor can suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster.

Executive Order 2-2020 declares a statewide emergency in accordance with Title 10, Chapter 3, MCA. Executive Order 3-2020 amends the prior executive order to run concurrent to the emergency declaration of the President of the United States, which established continuing conditions of the state of emergency. The Directive, among other things, generally places a limitation on residential foreclosures. The Directive, immediately effective through April 10, 2020, prohibits the following:
1. a trustee’s sale, sheriff’s sale, or other involuntary sale of residential real property;
2. actions for foreclosure of a mortgage, trust indenture, or other lien on residential real property, nor any action seeking a writ, judgment, or order directing the sale of the property or directing the mortgagor, grantor, or other debtor in possession of the property to surrender or vacate the property;
3. the enforcement of a writ, judgment or order directing the sale of residential real property or directing a mortgagor, grantor, or other debtor in possession of the property to surrender or vacate the property; and
4. credit reporting of a borrower, mortgagor, or grantor in possession of real property for nonpayment.

By its own terms, with respect to mortgages, the Directive does not apply to:
1. relieve a borrower, mortgagor, or grantor in possession of real property to pay any financial obligations, including payment of loan principal or interest, insurance, taxes, the accrual of interest, or other financial obligations (except for late fees or other charges);
2. foreclosure actions based on damage or destruction to the property or to the conduct of criminal activity on the property; and
3. any action where the mortgagor, grantor, or other debtor is no longer in possession and no longer occupies the residential property.

Likewise, the Directive limits certain actions regarding residential tenancy for the duration of the Directive, effective immediately through April 10, including:
1. preventing landlords from bringing actions for termination of tenancy, possession, unlawful holdover, or rent;
2. Preventing landlords from terminating a tenancy or refusing to renew or extend the terms of a tenancy on “at least a month-to-month basis”, charging or accruing late fees due to nonpayment of rent, increasing the amount of rent payable (except previously agreed increases or certain reasonable increases), requesting suspension or termination of utilities, or reporting a tenant to a credit bureau for nonpayment;
3. preventing landlords from seeking or collecting treble damages for failure to vacate the premises; and
4. preventing default judgments in actions for termination, possession, unlawful holdover, or rent.
With respect to residential tenancies, the Directive explicitly excludes certain tenancy terminations based on “grounds other than nonpayment of rent, fees, interests, or other monetary obligations, nonpayment of utilities . . . .” Tenancy terminations and extensions excluded from the Directive include damage or destruction to the premises, criminal activity, and threats to health and safety other than the potential of transmitting COVID-19. The Directive “does not relieve the obligation of a tenant to pay rent or the obligations of landlords and tenants to comply with any other conditions of the tenancy.” In addition, the Directive does not apply to eviction actions after the tenant is no longer in possession of and no longer occupies the dwelling unit, nor does it apply to commercial business use.
Additionally, the Directive limits businesses and political subdivisions from terminating electricity, gas, sewage, disposal, water, telephone, or internet services, and no late fees that become due after the Directive takes effect for the duration of the Directive “may be billed or collected.”

To those ends, the Directive requests that courts of Montana stay any actions currently pending that are related to residential foreclosures and residential tenancy evictions and rent. The Directive “requests” instead of “requires” the stay of these actions. This is likely in anticipation of violating constitutional provisions relating to the separation of powers.

The Governor cited the following authority for issuing the Directive:
1. 10-3-103
2. 10-3-104
3. 10-3-302
4. 10-3-305
5. 10-3-313
6. 50-1-103
7. 50-1-202
8. 50-1-203
9. 50-1-204
10. Art. VI, Section 4, Mont. Const.
11. Art. VI, Section 13, Mont. Const.
12. All other applicable provisions of state and federal law.

It should be noted that the federal government has imposed a nationwide halt to foreclosures and evictions for Americans with home mortgages backed by the Federal Housing Administration or through Fannie Mae and Freddie Mac: https://www.washingtonpost.com/business/2020/04/01/april-1st-rent-mortgage-payment-due-faq/?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most. According to the Banking Commissioner, approximately 80% of all mortgages within this state are covered by the federal provisions.

The Governor is vested with broad powers in Title 10, Chapter 3, relating to disaster and emergency services. However, these provisions do not specifically address the Governor’s powers relating to banking institutions, mortgages, or more generally, private contracts entered into between parties relating to residential mortgages. The most specific authority cited by the Governor with respect to these provisions, section 10-3-104, MCA, generally provides the Governor with the authority to suspend “ the provisions of any regulatory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule would in any prevent, hinder, or delay necessary action in coping with the emergency or disaster.” There, the authority is given to the Governor to suspend regulatory statutes for the conduct of state business. “State business” is not further defined in that part.

The Directive seeks to place limitations on residential foreclosures but does not specifically interfere with any regulatory statutory scheme, and the Directive does not cite any Montana regulatory scheme relating to mortgages or foreclosures.

Relating to housing, the most specific, relevant statute cited by the Governor is 10-3-313, MCA, which provides that the Governor may “temporarily suspend or modify for not to exceed 60 days any state laws or regulations relating to public health, safety, zoning, or transportation, within or across the state, when by proclamation the governor declares the suspension or modification essential to provide temporary housing for emergency or disaster victims.” Furthermore, the Governor is empowered to “control ingress and egress to and from an incident or emergency or disaster area, the movement of persons within the area, and the occupancy of premises within the area”. Section 10-4-104(2)(c).

The Legislature has set forth a basic framework concerning residential leases, including processes for the termination of leases and actions for possession in Title 70, Chapter 24. [Title 70, chapter 33 contains similar provisions for mobile home leases.] The Directive does modify these provisions, specifically how and when a landlord may terminate a lease and seek an action for possession.

Neither the statutory or Constitutional emergency powers granted to the Governor mention interference with private contracts.

Article II, Section 31 of the Montana Constitution generally prohibits the Legislature (and therefore the Governor through statutory emergency authority granted by the Legislature) from passing laws that impair existing contracts:

Section 31. Ex post facto, obligation of contracts, and irrevocable privileges. No ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature.

This provision is similar to Article III, Section 11, of the 1889 Montana Constitution and has a federal counterpart in Article I, Section 10, of the U.S. Constitution providing, in pertinent part, that no state shall pass any law impairing the obligation of contracts. Indeed, the Montana Supreme Court has held that because both clauses are similar, they serve as "interchangeable guarantees against legislation impairing the obligation of contracts." Carmichael v. Workers' Compensation Court, 234 Mont. 410, 414, 763 P.2d 1122, 1125 (1988). Thus, the Montana Supreme Court looks to federal cases addressing the Contracts Clause for guidance. See, e.g. City of Butte v. Roberts, 94 Mont. 482, 23 P.2d 342 (1933), and Neel v. First Fed. S and L Ass'n, 207 Mont 376, 675 P.2d 96 (1984).

While the Contracts Clause appears to be an outright prohibition against the interference with contracts, courts have carved out exceptions for a state's exercise of legitimate police powers. However, the U.S. Supreme Court recognized that "although the absolute language of the Clause must leave room for the essential attributes of sovereign power, necessarily reserved by the States to safeguard the welfare of their citizens, that power has limits when its exercise effects substantial modifications of private contracts." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 243-244 (1978), citing United States Trust Co. v. New Jersey, 431 U.S. 1 (1977), (internal citations omitted). Furthermore, the Court noted that "[d]espite the customary deference courts give to state laws directed to social and economic problems, [legislation] adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption." Id., at 244.

The Montana Supreme Court has recognized that legislation implicating the Contracts Clause may nevertheless be constitutional under certain circumstances. The Court noted that private contracts "must give way before a legitimate exercise of the state's police power. Business conducted in Montana is subject to the retained power of the state to protect public welfare." Seven Up Pete Venture v. Mont., 2005 MT 146, ¶ 41, 327 Mont. 306, 321, 114 P.3d 1009, 1021-1022. Accordingly, the Montana Supreme Court applies a three-part test when analyzing a Contracts Clause challenge: (1) is the state law a substantial impairment to the contractual relationship; (2) does the state have a significant and legitimate purpose for the law; and (3) does the law impose reasonable conditions which are reasonably related to achieving the legitimate public purpose? Id.

Nevertheless, the legality of contractual impairments during times of emergency is not without precedent in the United States. For instance, in Block v. Hirsh, the US Supreme Court upheld a legislatively-enacted, temporary statute (based upon conditions created by World War I) regulating rental agreements and terms, allowing tenants to continue to occupy leased premises upon the expiration of their leases without subjecting the tenant to eviction. There, the U.S. Supreme Court defended legislative intervention in private tenancy contracts during a post-war crisis by saying:

Congress has stated the unquestionable . . . danger to the public health in the existing condition of things . . . . Housing is a necessary of life. All the elements of a public interest justifying some degree of public control are present. The only matter that seems to us open to debate is whether the statute goes too far. For just as there comes a point as which the police power ceases and leaves only that of eminent domain, it may be conceded that regulations of the present sort pressed to a certain height might amount to a taking without due process of law . . . . But if the public interest be established the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled . . . . The regulation is put and justified only as a temporary measure . . . . A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change. . . . A part of the exigency is to secure a speedy and summary administration of the law and we are not prepared to say that the suspension of ordinary remedies was not a reasonable provision of a statute reasonable in its aim and intent.

256 U.S. 135, 156-158, 41 S. Ct. 458, 459-460 (1921). See also Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921). But see Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924) (“A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed”).

Likewise, in Home Bldg. & Loan Assoc. v. Blaisdell, 219 U.S. 398 (1934), the U.S. Supreme Court upheld the Minnesota Mortgage Moratorium law against a Contracts Clause challenge. There, the Court found that the Minnesota law, which temporarily extended the period of redemption for a foreclosure sale, did not violate the contracts clause because it was a valid exercise of the state’s police power with regard to an emergency economic crisis.

In sum, there is legal precedent for legislatively-enacted impairment of certain contractual rights in times of emergency when the state has a significant and legitimate purpose for the law and the law imposes conditions which are reasonably related to achieve the legitimate public purpose. However, what is less clear from the Montana statutory scheme and relevant case law is the extent and nature of the Governor’s executive power after declaring a public emergency as it relates to mortgages, private contracts, and residential tenancies.

Section 15-16-102, MCA, provides that half of property taxes are due November 30 and half are due on May 31. Because the due dates are set in state law, local governments may not extend them. Under 10-3-104, MCA, the Governor may:

• suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;

The Governor makes the determination of whether compliance with a statute hinders the response to the emergency. In making this determination, one might consider that property tax bills have already been calculated and mailed and property taxes can be paid by mail. Another consideration might be whether local governments are able to provide services if property tax payments are delayed.

Extending Property Tax Deadlines May Not Help Taxpayers Who Use Escrow Accounts to Pay Taxes

Federal regulations (12 CFR Part 1024) require an annual escrow account analysis to determine whether there is a projected shortage, surplus, or deficiency. These regulations allow a servicer to require a cushion or reserve of up to 1/6 of the total estimated annual payments. The timing of the annual escrow account analysis is based on when the account was established (usually based on the first mortgage payment).

If the state extended property tax due dates and the escrow account analysis fell during the extension period, taxpayers who pay property taxes through an escrow account could see a reduction in mortgage payments. However, if the extension is for less than a year, the monthly payments would likely remain unchanged because the escrow account analysis would result in the same total payment.

If an escrow account analysis is not scheduled during the extension period, the mortgage payments would also likely remain unchanged. However, extending property tax due dates could help business taxpayers and individual taxpayers who do not pay taxes through escrow accounts.

Certain Mobile Homes Differ in Property Tax Procedure, Counties with Early Due Date for Second Payment Could Extend but Not Past Nov. 30

Mobile homes on a foundation are considered real property. Taxes are due at the same time taxes are due for other residential property: first payment on November 30 and second payment on May 31. Mobile homes not on a foundation are considered personal property. Section 15-24-202, MCA, provides that the first payment is due the later of May 31 or 30 days after receiving the tax bill. The second payment is due no later than November 30, but counties may set earlier due dates.

In summary, mobile homes in a county on January 1, 2020, would be taxed as follows:
• Mobile home on a foundation: first payment due November 30, 2020; second payment due May 31, 2021;
• Mobile home not on a foundation: first payment due May 31, 2020; second payment due November 30, 2020 at the latest. Counties may set earlier due dates.

Counties could change the second due date for mobile homes not on a foundation if the due date is no later than November 30, 2020.

Can taxing jurisdictions waive penalties and interest for delinquent property taxes?

The addition of penalties and interest on late property tax payments is required in state law. Section 15-16-102, MCA, provides for penalties and interest for property taxes:​

(2) Unless one-half of the taxes are paid on or before 5 p.m. on November 30 of each year or within 30 days after the tax notice is postmarked, whichever is later, the amount payable is delinquent and draws interest at the rate of 5/6 of 1% a month from and after the delinquency until paid and 2% must be added to the delinquent taxes as a penalty.

(3) All taxes due and not paid on or before 5 p.m. on May 31 of each year are delinquent and draw interest at the rate of 5/6 of 1% a month from and after the delinquency until paid, and 2% must be added to the delinquent taxes as a penalty.

Local governments may not waive penalties and interest. The Governor makes the determination of whether compliance with a statute hinders the response to the emergency.

One exception is that a city may waive penalties and interest on special assessments for improvements in the city. The city must do this by resolution. The authority is provided in 15-16-103, MCA.

Can counties delay the tax lien process for delinquent property taxes?

The tax lien process is provided for in state law (Title 15, chapter 17, part 1). As with other processes provided for in state law, the Governor makes the determination of whether compliance with the statute prevents response to the emergency.

The notification of pending attachment of a tax lien is made by the last Monday in June. The county treasurer must attach the tax lien by the first Monday in August.

A taxpayer has 3 years from the date of attachment of the tax lien to redeem the tax lien. After 3 years, the owner of a tax lien can move forward with obtaining a tax deed. The 2019 Legislature revised the tax deed process (SB 253) to require an auction to award the tax deed for a property with a residence.

May a local government operate with a budget deficit?
Under normal circumstances, a local government entity may not expend more revenue that is appropriated in an annual budget. 7-6-4005, MCA states:

(1) Local government officials may not make a disbursement or an expenditure or incur an obligation in excess of the total appropriation for a fund.
Additionally, governing bodies have the power to appropriate funds, but are required to manage those funds to pay debts and expenses. 7-6-4006, MCA states:
(2) Money may not be disbursed, expended, or obligated except pursuant to an appropriation for which working capital is or will be available.

What methods are available to aid a local government in financial distress related to a state of emergency?
1. Emergency appropriations:
7-6-4032, MCA allows a local government to appropriate additional funds with a 2/3 vote of a governing body or submitting the question to the electorate. Any money appropriated with the approval of an emergency appropriation must be used in accordance with the adopted emergency budget appropriation.
2. Governor's powers under declaration of emergency:
10-3-104, MCA allows the governor to:
(2) suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statue, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster.

On March 24, 2020, the governor published a directive implementing Executive Orders 2-2020 and 3-2020 which allows flexibility to a local government entity to amend policies such as work hours, sick and vacation leave, and extend certain deadlines that do not affect public safety. Local governments may only utilize the directive until the end of the declared state of emergency.

While the directive applies to many aspects of local government operation, no direct mention to local government budgeting practices or revenue shortfalls was addressed. Thus, local governments may need additional directives to allow for possible deficits.
10-3-314, MCA allows for community disaster loans. The governor may determine and authorize that:
(1) …a political subdivision of the state or that a tribal government will suffer a substantial loss of tax and other revenue from an emergency or disaster and has demonstrated a need for financial assistance to perform its governmental functions, to apply to the federal government, on behalf of the political subdivision or tribal government, for a loan. The proceeds are statutorily appropriated, as provided in 17-7-502, MCA to the governor, who may receive and disburse the proceeds of any approved loan to any applicant political subdivision or tribal government.
The governor may also determine the amount needed for each applicant, and the applicant "amount may not exceed 25% of the annual operating budget of the applicant for the fiscal year in which the emergency or disaster occurs"2.
3. Additional powers delegated to local governing bodies during declarations of emergency:
10-3-405, MCA allows a governing body to levy an emergency millage to cover expenditures. A governing body of a city or county may not levy more than 2 mills on the municipality or county's taxable valuation. The governing body may approve multiple emergency levies, but the total amount levied in one calendar year may not exceed 2 mills. If additional funds remain after an emergency declaration is lifted, the funds must remain in a separate emergency fund and the funds may only be used for expenditures arising from future emergencies.
4. Current and emerging federal legislation:

As of March 26, 2020, federal legislation has been introduced that addresses the economic impacts of the COVID-19 emergency and may allow additional flexibilities to local governments or procure additional funding. Federal legislators are evaluating further options to provide relief to local governments, and it is currently unknown whether relief to local governments will be provided, and if so, at what extent. The potential passage of federal legislation may change the options available to local governments.

A local school board does not have the authority to reopen a school in violation of an order issued by the Governor to close schools statewide.

While the Montana Constitution provides that "[t]he supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law," Art. X, sec. (8), that supervision and control is not without limits. School boards are subject to legislative authority and control.

In a case from the 1950s, the Montana Supreme Court found that "[a] school district is a public corporation, but with very limited powers. It may, through its board, exercise only such authority as is conferred by law, either expressly or by necessary implication. Finley v. School District No. 1, 51 Mont. 411, 153 P. 1010.  School trustees may lawfully exercise only such powers as the law confers upon them and the statute granting the powers must also be regarded as a limitation upon the powers granted. McNair v. School District No. 1, 87 Mont. 423, 425, 288 P. 188, 69 A.L.R. 866; Jay v. School District No. 1, 24 Mont. 219, 232, 61 P. 250. The trustees are bound to know that they cannot go beyond the limitations which the law has placed upon them. Farbo v. School District No. 1, 95 Mont. 531, 28 P.2d 455." Abshire v. School District No. 1, 124 Mont. 244, 247 (1950).

The attempt by the school district trustees in Abshire to reduce the mandatory retirement age from 70 (in statute) to 65 (by board rule and motion) was "an attempt to create for and in themselves authority and discretion not granted by the legislature … [this attempt was] contrary to the declared public policy of our state and therefore void and of no effect, for the board possesses no law-making power." Abshire at 247-248 (citations omitted).

In a more recent case, the school board asserted that the 1972 Constitution overrode previously existing statutory process for administrative appeals through the county and state school superintendents for issues involving contract teacher terminations. However, the Montana Supreme Court disagreed and held the statutory process did not violate the local school board's supervision and control granted in Art. X, sec. 8. School Dist. No. 12 v. Hughes, 170 Mont. 267 (1976).

After examining comments made at the Constitutional Convention, the Court noted that "it appears the delegates were chiefly concerned with the preservation of existing local board control and power - not with expansion of local control and power… The Montana Supreme Court decided very early that a school district was a public corporation with limited powers, exercising through its board only such authority as is conferred by law, either expressly or by necessary implication. Local boards of trustees have always been held subject to legislative control." School Dist. No. 12 at 273 (citations omitted).

As local school boards are subject to legislative control, there are numerous statutes enacted by the Legislature that provide for the duties and responsibilities of the district trustees, and these statutes define and limit the actions a school board may take. The general powers and duties of a school board are found in section 20-3-324, MCA. In addition to the specifically-enumerated duties, in section 20-3-324(30), MCA, trustees are generally limited to performing other duties or enforcing other requirements only as required in Title 20 of the Montana Code Annotated, in Board of Public Education (Board) policy, or in administrative rules adopted by the Superintendent of Public Instruction.

Within Title 20, trustees are given some specific duties as relates to emergencies. Section 20-1-303(2), MCA, authorizes trustees to follow Board policy to approve pupil instruction on Saturdays in an emergency. Under section 20-3-322(3), MCA, the board of trustees may waiver the usual 48-hour notice requirement prior to holding a board meeting when faced with an "unforeseen emergency," defined in subsection (5) of that section.

Title 20, chapter 9 of the Montana Code Annotated contains the K-12 school finance laws, and part 8 of that chapter deals with financial implications of an emergency school closure. This part applies when a board of trustees makes a declaration that an unforeseen emergency has occurred in the district which prevents the district from conducting the minimum aggregate hours of pupil instruction required under section 20-1-301, MCA. While section 20-9-805, MCA, provides that a district's state equalization apportionment and entitlement must be reduced in proportion to the amount of aggregate hours missed, section 20-9-806, MCA, entitles the school district to receive its full annual equalization apportionment without making up all of the lost pupil-instruction time if two conditions are met: first, that the trustees adopt a resolution that a reasonable effort has been made by the district to reschedule the lost pupil-instruction time, and second, that the district has made up at least 3 school days or the equivalent number of aggregate hours before declaring that a reasonable effort has been made.

One other place that Legislature has specifically designated authority to school board trustees is in relation to school elections. Under section 20-20-105(4), MCA, if a district experiences an unforeseen emergency on the date of a scheduled school funding election, the district may reschedule the election for a different day of the calendar year. Additionally, under section 20-20-108, MCA, if the Governor has declared a state of emergency or disaster, the county superintendent of schools or the state superintendent of public instruction may cancel a school election. As soon as convenient after the Governor's declaration is terminated, the school district trustees have the duty to set a new date for the election and must provide at least 7 days' notice to the electors of the new election date.

In contrast, the Legislature has delegated broad authority to the Governor, the Montana Department of Public Health and Human Services, and local governments to act when a state of emergency or disaster has been declared. See Title 10, chapter 3 of the Montana Code Annotated. An earlier memo prepared by Legislative Services Division staff on March 13, 2020, provides an overview of the legal background and more information about that delegated authority.