(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Judge finds parts of bill adding new hurdles for Montana ballot initiatives unconstitutional – Daily Montanan [1] ['Blair Miller', 'More From Author', '- February'] Date: 2024-02-06 The imposition of a $3,700 filing fee for groups and individuals wanting to put ballot initiatives before voters, and a new statute allowing the state’s attorney general broad legal review powers over the proposals are unconstitutional, a Lewis and Clark County District Court judge ruled on Monday. Judge Mike Menahan ruled in favor of 10 Montanans who sued Gov. Greg Gianforte, Attorney General Austin Knudsen, and Secretary of State Christi Jacobsen last May challenging portions of Senate Bill 93, which imposed the added hurdles for ballot petitions on top of additional requirements added by the 2021 Legislature. SB93 passed both chambers with only support from Republicans. “This is a great first step for the people of Montana. Now, we’ll focus on unwinding the other infringements on ballot initiatives,” said the group’s attorney John Meyer, the executive director of the Cottonwood Environmental Center in Bozeman, in a written statement. The lawsuit challenged several new provisions added into Montana law regarding ballot initiatives under SB93, but the plaintiffs in the case asked the court to grant summary judgment as to the attorney general’s ability to “substantively review” initiative proposals for legal sufficiency and whether the $3,700 filing fee specifically violated the Montana Constitution. During the 2021 session, lawmakers passed House Bill 651, which put a series of reviews by an interim committee, the attorney general, and possibly the budget office into place for ballot proposals. The language defining “legal sufficiency” in 2021 statute meant a proposal would have to comply with statutory and constitutional requirements for putting a question to the voters, “the substantive legality of the proposed issue” if it is approved, and whether the proposal would be considered an appropriation. This past session, lawmakers killed Senate Bill 153, which sought to undo the changes passed in House Bill 651, then passed SB 93, which restructured the ballot initiatives statute and added more requirements on to the process. During the session, supporters of the new legislation had argued that some of those new review mechanisms from 2021 were costing the state extra and that the new fees would help the state recoup some of those costs. But opponents, including some of the plaintiffs in this case, said lawmakers were making it even more difficult to run ballot initiatives following fights over the reviews and timeframes in 2022. The 10 plaintiffs, who all tried to file ballot initiatives for 2024 but were denied because they failed to pay the $3,700 filing fee, and Meyer argued that the state constitution does not grant the attorney general and others those review powers, and that adding the new layers to the process constituted government interference with a power only provided to the people. In the lawsuit, attorneys for the state defendants had argued the plaintiffs lack standing to challenge the attorney general review authority and the filing fee because they did not allege an injury or make it to the review stage of the process in the first place. But Menahan rejected those arguments, saying in his Monday order that the filing fee prevented the plaintiffs from participating in the constitutional ballot issue process and the plaintiffs were in fact harmed by not being able to reach the review barrier. The plaintiffs also argued that any “substantive” review of ballot proposals by the attorney general is unconstitutional and that that standard had long been established by the Montana Supreme Court prior to the 2021 changes. Menahan wrote Monday the changes made by legislators to state statute do not supersede Montana case law — the Supreme Court previously held that an attorney general’s legal sufficiency review “does not authorize him to withhold a proposed ballot measure from the ballot for an alleged substantive constitutional infirmity” — and that constitutional provisions on separation of power issues cannot be legislated. “The Attorney General may only review proposed ballot issues for legal sufficiency. Legal sufficiency asks only whether the ballot statements comply with statutory requirements,” Menahan wrote. “…To the extent SB 93 provides the Attorney General authority to engage in substantive legal review of proposed ballot issues, those sections of the statute are void.” In the 2023 version of Montana Code Annotated, the ballot initiative statute now defines “legal sufficiency” as meaning “a petition complies with statutory and constitutional requirements governing submission of the proposed issue to the qualified electors and the substantive legality of the proposed issue if approved by voters.” The statute does not define “substantive” outside of that definition, but MCA 13-27-226 lays out the attorney general review portion. It says once the attorney general receives the proposal and ballot statements, as well as the fiscal note if there is one, the attorney general can review the proposal for “legal sufficiency” and move on to the next steps in the process of preparing a ballot statement and fiscal statement, if necessary, before passing it on to the Secretary of State and petitioners. Menahan also sided with the plaintiffs on the filing fees, saying the legislature indeed can create ballot issue processes through statute but cannot hinder the people’s ability to participate in the electoral process. The plaintiffs had argued that legislators are not charged fees to have bills written during the session, and since the people’s power and legislature’s power are the same under the state constitution, the government was creating a barrier for the people to exercise their own rights. The state officials had argued that the fees would help discourage frivolous proposals from having to go through the review process at the expense of state resources, but Menahan also rejected that argument. He said the state had said only 15% of submitted proposals made the ballot in 2022 and that the state officials appeared to view the rejected ones as being a waste of money. But he said the 2023 legislature had similar success, or lack thereof, if those were the metrics the officials wanted to use. “The 2023 legislature successfully passed 17.3 percent of the bills for which legislators submitted draft requests. Legislators submitted 4,643 draft requests to the Legislative Services Division. Ultimately, only 804 of those bills made it through the entire process to become law,” Menahan wrote. “Yet, defendants point to the thirty-four citizen submitted ballot issues from 2022 as evidence a filing fee is necessary to prevent expending state resources, including the time of the Legislative Services Division, on ‘unserious’ proposals.” Menahan wrote there was no evidence the 2022 proposals failed because proponents were unserious about their issues or the process, but said there are already legitimate hurdles in place, including signature gathering and a legal sufficiency review, to be sure there is support for an issue before it goes on the ballot. He also said the state officials’ arguments that a filing fee could be compared to candidate filing fees to prevent ballots from being cluttered unpersuasive, saying the two initiatives appearing on the 2022 ballot was a good example. “In short, the state has not demonstrated a legitimate interest in imposing a filing fee to prevent a problem which does not exist,” Menahan wrote. “There is no evidence ballot issues have cluttered the ballot and created confusion in past elections and there is no legitimate reason for requiring citizens to pay to exercise rights guaranteed to them by Montana’s constitution.” Meyer said in an email he and the plaintiffs would continue to fight the other provisions of SB 93 challenged in the original lawsuit as well, which include additional reviews, reporting requirements about a proposal’s effect on business in Montana, and a prohibition on running a measure if a similar one was defeated in the past four years. Spokespeople for the Attorney General’s Office and Secretary of State’s Office did not immediately respond to a request for comment Tuesday. A spokesperson for the Governor’s Office said the office does not typically comment on ongoing litigation. Meyer’s law firm won at the Supreme Court in 2022 when it challenged Knudsen’s rejection of a petition to protect parts of the Madison and Gallatin rivers, but the organizers of the petition ran out of time to collect signatures before the deadline. Menahan’s order comes as people organizing petitions for the 2024 ballot are either going through the review process, including one group challenging an insufficiency finding for a proposed abortion measure, or beginning to collect signatures. 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