Lawsuit challenges $3,700 fee, other new restrictions, on Montana citizen initiative process

Ten Montanans, including former elected officials and Constitutional Convention delegates, have sued the state arguing a bill that adds a host of new requirements for people trying to get initiatives and constitutional amendments onto the ballot violates the state constitution.

At issue is Senate Bill 93, sponsored by Sen. Mike Cuffe, R-Eureka, which Gov. Greg Gianforte signed into law on May 19 after it passed both chambers on party lines in its final form, with Republicans in support.

The bill implements a nonrefundable $3,700 filling fee for an initiative or referendum when a proponent files the proposal; adds layers to the review process that give the attorney general and secretary of state power to reject the language of a proposal; and implements more reporting requirements on the face of the petition about its effect on business and its overall fiscal impact.

Further, it prohibits a proposal from being run if a similar one was defeated in the past four years; bars the use of electronic signatures; and adds a requirement that paid signature gatherers register with the secretary of state and pay a fee of up to $100 unless they can show their inability to pay.

Lawmakers and proponents of the bill had argued during the session the new fees would help the Secretary of State’s Office, Department of Justice and Legislative Services Division recoup the costs of reviewing ballot proposals – including some additional steps the legislature put in place in the 2021 session with House Bill 651.

Opponents of the bill, including some who are plaintiffs in the newly filed lawsuit, argued the bill was an attempt by lawmakers to make it even more difficult to run ballot initiatives in Montana after protests of the additional hurdles added in the 2021 session that some said hampered efforts to get initiatives, like CI-121, to cap some residential property taxes, onto the ballot during the allotted timeframe.

Last Friday, the Bozeman-based Cottonwood Environmental Law Center sued Gianforte, Attorney General Austin Knudsen and Secretary of State Christi Jacobsen in Lewis and Clark County District Court on behalf of 10 Montanans asking a judge to find either the bill or the new statutory language unconstitutional and to enjoin the enforcement of the new language.

The plaintiffs include three delegates to the 1972 Montana Constitutional Convention, former Secretary of State and lawmaker Bob Brown, former lawmaker Hal Harper, former Commissioner of Political Practices Jonathan Motl, and several Montanans who often run ballot initiatives. Some of them wrote opinion pieces against Senate Bill 93 this session that were published by the Daily Montanan.

The plaintiffs, all of whom are supporting at least one of the proposed ballot measures for 2024 already submitted to the Secretary of State’s Office, and their attorney John Meyer, argue in the lawsuit that the constitution explicitly gives the people, and not the legislature, the powers of initiative and that SB 93 confers those powers to the legislature and other departments in violation of the constitution.

“SB 93 is unconstitutional because it impairs, inhibits, makes more expensive, infringes, prevents, and effectively denies the people of Montana their reserved power to enact laws using the initiative and/or referendum process,” the lawsuit states.

Meyer argues in the lawsuit that the filing fees, prohibition of filing similar initiatives, and a referendum filing timeframe are not set out in the constitution and interfere with the people’s power.

He also argues that since the bill grants powers in the initiative process to the attorney general and secretary of state not conferred by the constitution, they do not have the authority to interfere in the initiative process. Other initiative review powers given to the Budget Office and interim committees are also unconstitutional for the same reasons, Meyer wrote in the lawsuit.

“Montana law does not allow an initiative proponent to begin signature gathering until the form of petition is released by the SOS and therefore SB 93 is unconstitutional to the extent it allows government entity exclusive control, including timing, of the proposed initiative language and the initiative petition before it is released to the initiative proponent,” the suit says.

Motl and Evan Barrett, a former political staffer who is also a plaintiff in the suit, both wrote opinion articles earlier this year decrying the bill and what they said is a legislative usurpation of power from Montana citizens.

“Those House Bill 651/SB 93 changes target the process by which citizens write the language of the law proposed by the ballot issue and the petition on which they seek signatures,” Barrett wrote in April. “Having failed to defeat citizen initiatives with electors, the GOP and business interests are now seeking to prevent initiatives from ever reaching the ballot. They do that with sweeping intrusions of cost and control over the process by which ballot issues make the ballot to be presented for a vote by electors.”

A spokesperson for the Secretary of State’s Office said Tuesday afternoon the office had not been served with the lawsuit. A spokesperson for the Governor’s Office declined to comment. The Department of Justice did not respond to emails seeking comment on the suit.

So far, there have been seven initiatives proposed by citizens for the 2024 ballot and referred either to Knudsen or Legislative Services, but two of them have already been withdrawn.

For the 2022 ballot, four issues were allowed to gather signatures out of 31 that were originally drafted, but none of the citizen issues made the ballot.

Two legislature-referred measures were decided by voters last year. None of the bills from the legislature this session that would have referred proposed constitutional amendments to voters next year received the votes necessary to be put on next year’s ballot.

The same law firm won a victory in the Supreme Court in March 2022 when the court found that the petitioners for an initiative to permanently protect parts of the Madison and Gallatin rivers had their proposal wrongly rejected by Knudsen’s office. But the petitioners said they ran out of time to collect the necessary signatures afterward for the measure to make the ballot.

“In response to our court win, the Montana legislature recently passed more unconstitutional restrictions on Montanans’ ability to move forward with ballot initiatives,” the law firm said in a statement regarding the new lawsuit. “We’re back in court to protect our constitutional rights and our rivers.”