Constitutional Implications of Silence-Based Denials Under Montana Law –

A Look at Montana Code Annotated § 2-9-301.

Appendix

Montana Code Annotated § 2-9-301 (MCA) has not been extensively litigated in the way other statutory provisions have been, but it is recognized as an important statute related to claims processing and the state’s ability to manage claims in certain administrative contexts, especially with regard to silence as a final denial. However, there are some cases that are worth noting in relation to the themes raised by § 2-9-301, particularly dealing with statutory construction, procedural due process, and the constitutional implications of silent denials. These cases are referred to in context in this article, e.g., Geil v. Missoula Irrigation Dist., Clark Fork Coalition v. Tubbs, and Reichert v. State. The Montana Supreme Court has recognized the primacy of providing adequate notice and the right to meaningful participation in governmental decisions.

I. Introduction: Silence as Government Action

Transparency and accountability are foundational attributes of lawful government. Administrative silence that carries legal consequence undermines both. Government action is ordinarily understood as affirmative – an order, regulation, or denial. Yet modern administrative schemes increasingly rely on silence, and in certain contexts assign that silence dispositive legal effect.

Montana Code Annotated § 2-9-301 provides that if the State fails to grant or deny a claim within 120 days, the claim is “considered finally denied.” The statute requires no notice, explanation, findings, or confirmation that the agency reviewed the claim. By operation of law, inaction becomes a final adjudication. This mechanism presents a constitutional question: may the State deprive a claimant of rights or property through agency silence – without notice, explanation, or record – by statutorily deeming inaction a final denial? Section 2-9-301 answers yes. The Montana Constitution raises serious doubt.

By converting silence into final agency action, § 2-9-301 effects deprivation without process. It implicates procedural due process under Article II, § 17; frustrates the Right to Know and Right to Participate under Article II, §§ 8 and 9; and undermines meaningful judicial review. Silence, when given legal effect, is not neutral. It is government action.

The Montana Supreme Court has consistently held that due process requires, at a minimum, notice of the governmental decision and an opportunity to be heard at a meaningful time and in a meaningful manner. Pickens v. Shelton-Thompson, 2000 MT 131, ¶ 28; Geil v. Missoula Irrigation Dist., 2002 MT 269, ¶ 53. Notice must be real, not constructive. A party must know what was decided and why in order to respond.

II. The Statutory Mechanism: Silence as Finality

Montana courts have rejected procedures that obscure the basis of governmental action. In Clark Fork Coalition v. Tubbs, the Court emphasized that agency decisions must be sufficiently clear and reasoned to permit understanding and review. 2016 MT 229, ¶ 24.

MCA § 2-9-301 imposes a mandatory claims-presentation requirement before suit against the State. Although it contemplates a written grant or denial, it authorizes a constructive denial through inaction alone. That silence carries immediate legal consequences: it alters the claimant’s legal posture, forecloses administrative resolution, and triggers litigation deadlines.

Under settled doctrine, state conduct that alters legal rights or obligations constitutes state action. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Silence under § 2-9-301 is therefore not the absence of action; it is action by statutory design.

III. Agency Silence as a Procedural Due Process Deprivation

A. Due Process Turns on Practical Effect, Not Labels

The Montana Supreme Court evaluates due process claims by examining the practical effect of governmental conduct, not its formal characterization. Pickens, ¶ 11; State v. Spotted Eagle, 2010 MT 222, ¶ 16. Due process protections attach when the State affects a legally protected interest, regardless of how the conduct is labeled.

MCA § 2-9-301 does not merely permit delay; it transforms silence into a final denial that extinguishes or impairs protected interests. Claims against the State—particularly those involving property, bodily injury, or contract—constitute protected interests. When those claims are deemed denied by silence, Article II, § 17 is implicated. See Jerry L. Mashaw, Due Process in the Administrative State 163–68 (1985).

B. Meaningful Notice Is a Constitutional Minimum

Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of governmental action affecting their rights. Mullane v. Central Hanover Bank, 339 U.S. 306 (1950); Geil, ¶ 31. Montana courts focus on whether notice is capable of actually informing the affected party and have made clear that constructive or inferential notice is insufficient. Geil, ¶ 53.

A denial deemed by silence provides no notice at all—no communication, no decision date, and no explanation. Claimants are left to infer deprivation solely from the passage of time. Montana precedent makes clear that such implied notice does not satisfy due process.

C. A Meaningful Opportunity to Be Heard Requires Reason-Giving

The Montana Supreme Court has consistently held that due process requires a real and meaningful opportunity to be heard. Pickens, ¶ 17. That opportunity is illusory where the affected party does not know what decision was made or on what basis.

Procedural due process requires not only an opportunity to be heard, but knowledge of the grounds upon which a decision rests. As Professor Henry Friendly observed, “the right to know the reasons for official action is perhaps the most critical element of procedural fairness.” Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1292–95 (1975). Administrative law scholars consistently emphasize that reason-giving is the backbone of judicial review. See Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 11.4 (5th ed. 2010) (“Without articulated reasons, judicial review becomes impossible or meaningless.”). Montana case law mirrors this principle. Clark Fork Coalition v. Tubbs, 2016 MT 229, ¶ 27. A statutory scheme that allows agencies to avoid reason-giving by remaining silent undermines the very possibility of constitutional review.

Montana law repeatedly requires findings and explanations sufficient to permit understanding, response, and review. Bitterroot River Protective Ass’n v. Bitterroot Conservation Dist., 2008 MT 377, ¶ 21. A silence-based denial provides none.

D. Silence Fails Montana’s Flexible Due Process Standard

Montana recognizes due process as a flexible concept requiring procedural protections appropriate to the nature of the interest at stake and the risk of erroneous deprivation. Dorwart v. Caraway, 2002 MT 240, ¶ 73.

Even under this flexible framework, silence-based denials fail. Section 2-9-301 provides no notice, no explanation, and no record, thereby maximizing the risk of error while imposing minimal burden on the State to avoid that risk. As scholars observe, opacity in administrative decision-making erodes constitutional accountability. Mark Fenster, The Opacity of Transparency, 91 Iowa L. Rev. 885, 902–07 (2006).

IV. The Right to Know and the Right to Participate

Montana’s Constitution uniquely protects governmental transparency. Articles II, §§ 8 and 9 reflect a commitment exceeding federal baselines and central to Montana’s constitutional structure.

A. Article II, § 9 – The Right to Know

The right to know requires access to information concerning government decision-making. Great Falls Tribune v. Mont. Pub. Serv. Comm’n, 2003 MT 359. A denial by silence conceals whether a decision was made, who made it, and what standards governed it – outcomes incompatible with Article II, § 9. See Diane J. Sands & Michael G. Sands, Montana’s Right to Know, 56 Mont. L. Rev. 1, 6 – 10 (1995).

B. Article II, § 8 – The Right to Participate

Meaningful participation presupposes knowledge. Montana law requires agencies to issue findings sufficient to permit engagement and review. Bitterroot River, ¶ 21.

Where silence replaces explanation, participation is foreclosed. Errors cannot be identified, standards cannot be challenged, and factual assumptions cannot be assessed. The deprivation is structural, not merely procedural. Montana Envtl. Info. Ctr. v. DEQ, 1999 MT 248.

Conclusion

When silence carries legal consequences, it constitutes state action. Montana’s Constitution does not permit rights to be denied without notice, explanation, or accountability. If the State denies a claim, it must decide. If it decides, it must explain. If it explains, courts can review. A statutory regime that allows rights to be denied through silence substitutes opacity for process and fiction for adjudication.

Montana Code Annotated § 2-9-301, as applied to deem agency silence a final denial, violates Article II, § 17 (procedural due process), Article II, §§ 8 and 9 (the Right to Know and the Right to Participate), and fundamental principles of meaningful judicial review. The Montana Constitution does not permit the State to deny claims without deciding them.

 J.B. Lorenzo

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