Montana state capitol Helena
Credit: Eliza Wiley / MTFP

A Republican lawmaker and a group of unlikely bedfellows from across the political spectrum are working to repeal language passed last session that erected additional hurdles to getting an issue placed on the ballot, arguing that the law runs afoul of the Montana Constitution. 

Senate Bill 153, sponsored by Sen. Brad Molnar, R-Laurel, would reverse 2021’s House Bill 651, a bill passed in the latter days of the last session that expanded the Legislature and state attorney general’s role in reviewing proposed statutory and constitutional ballot initiatives before they go before voters. 

While proponents of HB 651 argued that it placed needed sideboards on the initiative process, Molnar said Monday that the law places unfair — and illegal — obstacles in the path of those who wish to put an issue on the ballot. Molnar was a vocal proponent of one such issue that ran into those obstacles last year, CI-121, which would have placed a cap on property taxes in Montana. Initiative backers ultimately did not gather enough signatures to put the measure on the ballot. 

Molnar voted against the bill on its second reading in the Senate last session, but inadvertently voted for it on third reading, he said Monday.

“The bill is patently, in my opinion, unconstitutional,” Molnar said in reference to HB 651 during a hearing on his bill before the Senate State Administration Committee Monday. And at a time when the Montana Department of Justice is requesting an additional $2 million for litigation expenses over the next biennium, it behooves the Legislature to scrap the potentially unconstitutional law, Molnar argued. 

House Bill 651, sponsored last session by Rep. Marta Bertoglio, R-Clancy, and passed on largely partisan lines, made a number of regulatory changes to the initiative process. The bill prevents Montana’s secretary of state from placing an issue on the ballot until a legislative interim committee votes to approve or disapprove of the measure. The result of the interim committee’s vote would be placed as a warning on the ballot. 

HB 651 also gave the attorney general the authority to determine whether the measure would constitute a “regulatory taking” or otherwise cause significant harm to one or more business interests in Montana. If such a determination is made, a warning to that effect would be placed on the ballot as well. 

Perhaps the most substantive change concerned the attorney general’s legal review role. Before the enactment of HB 651, the attorney general could only review a ballot issue for compliance with procedural requirements in the Montana Constitution — for example, whether it complies with the Constitution’s single-subject rule. The bill expanded that authority to include evaluation of “the substantive legality” of the measure. In other words, the attorney general can block an issue from reaching the ballot if he determines its substance violates the state Constitution. 

In fact, statute prior to the passage of HB 651 stipulated specifically that “review of the petition for legal sufficiency does not include consideration of the substantive legality of the issue if approved by the voters.” 

Senate Bill 153 would undo those changes. On Monday, the bill found support from a broad coalition including not only Molnar, but also former Montana Supreme Court Justice Jim Nelson, former Montana Commissioner of Political Practices Jonathan Motl and conservative attorney Matthew Monforton, a co-sponsor of CI-121.

In written testimony to the committee, Nelson said Montana citizens’ right to petition the government through the initiative process is subject to only a few basic restrictions: an initiative must address only a single subject, must not make appropriations, and must not create a special or local law. While there are differences in how the Constitution treats statutory and constitutional initiatives, the same basic requirements apply in both cases. 

But HB 651, Nelson wrote, went far beyond those basic requirements. The Constitution, he said, “provides no authority for either the legislative or executive branch” to impose such burdens. 

“House Bill 651 provides the attorney general apparent unlimited subjective power to approve or disapprove of a proposed issue,” he wrote. “The only public official authorized to be involved in the process is the Secretary of State, and that only for the purposes of filing a petition.”

The implications of House Bill 651 emerged multiple times in the last initiative cycle. In one case, attorney general Austin Knudsen rejected a proposed issue that would have expanded environmental protections on the Gallatin and Madison rivers on the grounds that it would constitute an uncompensated private property taking, halting signature gathering. One backer of the initiative, Cottonwood Environmental Law Center, challenged that finding in the state Supreme Court, which eventually overturned Knudsen’s decision in a unanimous ruling. 

In their ruling, the justices also wrote that Knudsen’s decision demonstrates “the impropriety of using an opinion about regulatory takings to determine if a ballot issue is insufficient.”

Going one step further, Chief Justice Mike McGrath wrote in a concurrence that the attorney general lacks the power to reject a ballot issue on such grounds, “and the Legislature equally lacks the power to confer it upon him.”

“As this demonstrates, a court is a better and more proper place to review the constitutionality of an actual law,” Motl told the committee Monday. “A court process is deliberative, there’s time for evidence, time for argument, and this is far different from a unilateral opinion on constitutionality removing a proposed ballot initiative from consideration by other people.” 

Monforton noted that the language of HB 651 does not include a deadline for review by a legislative interim committee, creating a de facto “pocket veto.” 

Monforton and Molnar both backed CI-121. Signature gathering on the measure was halted when a series of plaintiffs challenged the initiative in court, arguing that the attorney general failed to comply with HB 651 by not providing an analysis of the initiative’s impact on businesses. The AG’s office argued at the time that the requirement in the bill applies only to amendments to state statute, not the Constitution. A district court judge ultimately ruled with Knudsen’s office. 

“I’m not former Justice Nelson or former Commissioner Motl,” Monforton told the committee Monday. “I’m a conservative, and I’m politely warning the committee that if HB 651 is not repealed, there will be multiple lawsuits, you’ll lose them, and you’ll deserve to lose them.”

Several groups representing Montana business interests testified Monday against Molnar’s bill, arguing that House Bill 651 shines a light on the initiative process, providing more opportunity for legislative and citizen input on ballot measures. 

“Instead of Montanans fighting this out only over the airwaves, it created a process where citizens could stand before an interim legislative committee and debate the pros and cons…” said Charles Robison, director of government relations for the Montana Chamber of Commerce. 

The law doesn’t stop issues from reaching the ballot, he said. If issues don’t make it, he said, it’s because they didn’t get enough signatures.  

Darryl James, executive director of the Montana Infrastructure Coalition, appealed to the Legislature’s interest in advancing its own opinion. 

“These revisions say, first of all you did it wrong to begin with, and secondly, even if you do review it again, we don’t want to hear your opinion,” he told the committee. 

But Molnar argued that transparency in the initiative process comes when citizens debate the issue among themselves, not when lawmakers hold hearings. 

“The sunshine comes when the issue, whatever it might be, is discussed in the coffee shops of Montana, the kitchen tables of Montana, in the newspapers across Montana, for six months, not two minutes for opponents, two minutes for proponents,” he said. 

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Arren Kimbel-Sannit

Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.