A Montana judge on Monday voided parts of a 2023 law that made it harder for proposed statutory and constitutional initiatives to qualify for the ballot. 

Lewis and Clark County District Court Judge Mike Menahan’s ruling removes — for now, at least — a $3,700 filing fee for proposed ballot initiatives and curtails the state attorney general’s ability to review, and in some cases halt or stall, proposed initiatives.

“This is a great first step for the people of Montana,” said John Meyer, an environmental law attorney representing the plaintiffs, in a statement Tuesday. “Now we’ll focus on unwinding the other infringements on ballot initiatives.”

This week’s ruling is just one step in the encompassing litigation challenging 2023’s Senate Bill 93, which enacted several restrictions on the ballot initiative process beyond what the judge addressed Monday. 

The plaintiffs, including 1972 Constitutional Convention delegate Mae Nan Ellingson and former Commissioner of Political Practices Jonathan Motl, are supporters of various initiatives blocked from ballot access last year. The initiatives include a proposed constitutional amendment to provide for free public pre-kindergarten education and another to provide for a historic preservation tax credit. The Montana secretary of state refused to accept the proposed ballot language for any of the initiatives because the sponsors would not pay the $3,700 fee. 

In May, the plaintiffs took the matter to court, arguing not only that the filing fee is an unconstitutional barrier to ballot access, but also that the entire underlying law, SB 93, fails constitutional muster. The law, in addition to imposing a filing fee, gives the attorney general the ability to review and block proposed ballot initiatives on the basis of their legality, requires anyone employing paid signature gatherers to register with the state, creates a legislative review process, and prohibits initiative sponsors from filing an initiative that is “substantially similar” to one that was defeated within the previous four years. 

Their lawsuit argued generally that the state cannot impose restrictions on the ballot initiative process beyond what exists in the Montana Constitution, which says “the people may enact laws by initiative on all matters except appropriations of money and local or special laws.” The Constitution does include a signature gathering threshold, but beyond that, minimally restricts the ability of citizens to propose amendments to statute or the Constitution. 

“The Montana Constitution does not provide the AG, the Legislature, the [Secretary of State] or any entity of government with the power to interfere with the people’s power to write the initiative, including the language of the petition to place the initiative on the ballot,” the complaint states.

SB 93, sponsored by Sen. Mike Cuffe, R-Eureka, began as bipartisan “cleanup” legislation requested by a legislative interim committee. But the bill was substantially amended through the legislative process to include the new restrictions, which were backed by the state Chamber of Commerce and other business interests. 

“Organizations like ours are oftentimes expected to cough up tens of thousands, if not hundreds of thousands, of dollars to buy TV commercials to settle public policy matters that really should be in front of this body,” Cary Hegreberg, president of the Montana Bankers Association, told a legislative committee in March in support of the new provisions. 

In the background of debate over the bill was CI-121, an initiative proposed in 2022 that would have capped residential property tax increases. The initiative failed to gather enough signatures to qualify for the ballot — in part because it was held up in litigation for much of the time when sponsors would otherwise have been gathering signatures — but still generated criticism from lawmakers in both parties and a substantial public opposition campaign led by business interests. Bozeman attorney and former legislator Matthew Monforton, CI-121’s prime sponsor, attempted to place a similar initiative on this year’s ballot, but was stymied by the attorney general, who said the initiative bundled multiple questions that the Constitution requires be put to voters separately. The Montana Supreme Court sided with Knudsen’s office in a subsequent legal challenge. 

SB 93 built on a law passed in 2021 that granted legislative interim committees the ability to review proposed ballot issues and gave the attorney general the authority to review initiatives for their potential to “cause significant material harm to one or more business interests in Montana.” The key difference was that the 2023 bill, in addition to enacting the filing fee, broadened the attorney general’s authority to review the substantive constitutionality of the proposal itself, in addition to the process by which it was proposed. The lawsuit also challenges parts of the 2021 law, including the “business interests” provision.

Cuffe and other proponents argued that the filing fee would help the state defray the cost of evaluating proposed ballot initiatives, and that the restrictions generally would encourage more thoughtful consideration of proposals. The bill ultimately passed with almost exclusively Republican support. Sen. Brad Molnar, R-Laurel, a supporter of the tax cap initiative and one of the bill’s few Republican detractors, called the filing fee a “poll tax.”

This week, the court specifically ruled with the plaintiffs on a motion to block two provisions of SB 93 — the filing fee and the attorney general’s legal review — but not the others. The plaintiffs argued that those provisions were facially unconstitutional — in other words, that there exists no circumstance in which they would be valid. The fee, Meyer wrote on behalf of the plaintiffs, “places an impermissible monetary impairment on the People of Montana’s constitutionally guaranteed power to enact laws through the initiative and referendum processes,” while the provision requiring legal review by the attorney general confers a power to the executive branch — evaluating the substantive legality of a given issue — that is reserved for the judiciary, violating the separation of powers doctrine. 

Arguing for the state, attorneys from Knudsen’s office wrote that the plaintiffs failed to establish standing, as their proposed issues had not been subject to legal review since their sponsors hadn’t paid the filing fee, and that they relied on an outdated understanding of the law. After all, they wrote, the Legislature had granted the attorney general the authority to review ballot initiatives in 2021.

“The Legislature has enacted multiple statutes — acknowledged by the Montana Supreme Court — to facilitate the ballot issue process, even though such procedures do not appear in the Montana Constitution,” they wrote. “As such, the Montana Supreme Court has recognized that a particular process or procedure need not appear in the Constitution to be legal and enforceable. SB 93 is another one of these processes.”

But the court sided with the plaintiffs. On the question of standing, Menahan wrote that it doesn’t matter whether the proposed initiatives actually made it to Knudsen for legal review.

“If Plaintiffs prevail on their claim regarding the constitutionality of the filing fee, the fact their initiatives did not reach the review stage would be the result of the imposition of an unconstitutional requirement,” he wrote. “The harm Plaintiffs allege is interference with their constitutionally protected powers to participate in the ballot issue processes. This harm exists regardless of the extent Plaintiffs advanced through the process before reaching the first barrier.”

More to the point, Menahan wrote, Montana courts have repeatedly affirmed that the attorney general cannot perform “substantive legal reviews of ballot issues.” For the attorney general to evaluate questions of proper process is one thing, but for the office to weigh in on the legality of the question to be put to voters is another, Menahan wrote. That is a power reserved to the courts, he wrote.

“Thus, regardless of the change in statutory language, Montana’s case law continues to support the conclusion [that] substantive legal review by the Attorney General as part of the ballot issue process is unconstitutional,” Menahan wrote. “Constitutional provisions governing separation of power issues may not be legislated.”

Several proposed ballot initiatives have already faced legal review by the attorney general this year. In one case, proponents of an initiative creating top-four primaries in Montana successfully overturned the attorney general’s legal insufficiency decision and are now gathering signatures. In another, backers of an initiative that would enshrine the right to abortion in the Montana Constitution are in the midst of a court fight after Knudsen deemed the proposal legally insufficient earlier this year. 

Knudsen took two main issues with the abortion initiative, arguing that it “logrolls” multiple provisions into one and that it restricts the ability of policymakers to enact “reasonable” restrictions on abortion. Meyer, the attorney for the plaintiffs in the SB 93 case, said he’s not sure how Monday’s ruling might affect that ongoing litigation. Representatives of Planned Parenthood Advocates of Montana, which is supporting the abortion proposal, declined to comment on pending litigation. 

A spokesperson for the attorney general, Emilee Cantrell, said “the ruling does not affect the Planned Parenthood ballot initiative case since that involves a procedural determination rather than a substantive determination.”

As for the remainder of the SB 93 case, Cantrell said the attorney general’s office is awaiting a ruling on the entirety of the law before determining next steps. 

Editor’s note: Bozeman attorney John Meyer, who represented the plaintiffs in the lawsuit, is married to Montana Free Press reporter Amanda Eggert. Eggert did not contribute to the reporting, writing or editing of this story. 

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