Commentary

Chipping away at our state’s constitution

HB651 allows unnecessary interference by state officials in a citizens’ initiative

January 25, 2022 5:51 am

The Montana Capitol in Helena, Montana (Photo by Eric Seidle for the Daily Montanan).

During the last legislative session, while I was doing some legal research, I accidentally came across House Bill 651. This bill (which is now law) overhauled and imposed significant burdens on the Citizens Initiative process—guaranteed to Montanans by our Constitution, primarily at Article III, sections 4,6 and 9, but also at Article II, section 14, Article IV, section 7, Article V, section 1, Article VI, section 10 Article XI, sections 7 and 8, and Article XIV, section 2. 

Given the importance that the framers placed on giving citizens the right and power to enact laws and constitutional provisions by initiative, I thought at the time that it wouldn’t be long before all or parts of HB 651 hit the litigation fan.  And as George Ochenski discusses in his most recent column, I wasn’t far off the mark.

Actually, the Constitution is clear and concise: Article III, section 4(1) provides that “The people may enact laws by initiative on all matters except appropriations of money and local or special laws.” Subpart (2) sets out the number of electors that must sign a CI petition and provides that such petitions be filed with the Secretary of State at least three months prior to the election on which the measure will be voted upon; and subpart (3) provides that the CI petition shall not be questioned after the election is held.  Importantly, there is no provision in this guarantee that permits or requires involvement by the legislature or the attorney general.

Notwithstanding, HB 651 requires: Legislative interim committees (and apparently some sort of legislative administrative committees) to review proposed ballot initiatives and vote to either support or not support the placement of the initiative on the ballot; the legislative council to do the same thing; and paid signature gathers to register with the Secretary of State and pay a filing fee. HB 651 provides the attorney general with apparent unlimited power to approve or disapprove of a proposed issue; provides that the petition for the initiative advise voters that the legislative interim or administrative committee voted for or against the proposed measure; and contain a warning to potential petition signers if the attorney general “has determined the proposed ballot issue will likely cause significant material harm to one of more business interests in Montana.”  

Additionally, HB 651 empowers the attorney general to determine whether the proposed ballot issue is legally sufficient, substantively lawful, whether it constitutes an appropriation and whether it could cause a regulatory taking or otherwise cause significant material harm to one or more businesses in Montana if approved.

As already noted, the Constitutional guarantee for citizens initiative is very simple. It only prohibits CIs appropriating money and local or special laws. It doesn’t provide the legislature with any power to burden the process with interim or administrative committee votes, various reviews by the attorney general, determinations by the attorney general that the issue might cause significant harm to one or more businesses, cause a regulatory taking or anything else for that matter.  The only public official authorized to be involved in the process is the Secretary of State, and that, only for purposes for filing the petition.

I suggest the lesson here is that a constitutional right is not worth much when the legislature can make the exercise of that right so complicated and difficult, that it becomes not worth the effort.  Here, the legislature has effectively legislated the CI right out of existence by making it difficult to survive all the votes and reviews before it ever gets on the ballot.  

The monolith of our Constitution will ultimately fall if we allow it to degraded chip by chip, piece by piece.  Democracy is destroyed not from without, but from within.  HB 651 is an object lesson in the legislature’s deconstruction of the right of citizens’ initiative.

What right is next?

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James C. Nelson
James C. Nelson

James C. Nelson is a retired lawyer and former Montana Supreme Court Justice. He lives in Helena.

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