A Helena judge on Tuesday said supporters of an initiative aimed at capping property taxes can start gathering signatures again.
The order from Lewis and Clark County District Court Judge Christopher Abbott reverses a previous decision from Judge Michael McMahon blocking signature gathering for Constitutional Initiative 121.
“(Plaintiffs’) failure to make any substantial showing of injury, coupled with the clear inequity of preventing the proponents from gathering signatures while this case is litigated, dooms their request for a preliminary injunction,” Abbott wrote in Tuesday’s order.
Since the Secretary of State cleared supporters to start gathering signatures to qualify the initiative for the ballot earlier this month, the effort has faced significant challenges, both legal and ideological. To qualify for the ballot, the group must collect 60,359 signatures by June 17, with enough signatures coming from certain parts of the state.
A coalition including the Montana Federation of Public Employees, the Montana Farmers Union and two state residents sued days after the approval for signature gathering. The groups claimed Attorney General Austin Knudsen and Secretary of State Christi Jacobsen didn’t comply with a new state law that increased the Legislature’s and Attorney General’s role in initiatives and shouldn’t have given the go-ahead for signature-gathering.
In court Monday, Abbott said he had a hard time understanding why signature gathering would cause irreparable harm to the coalition. McMahon cited that harm in issuing the pause earlier this month. As an example, Abbott said if he ended up siding with the coalition, any signatures gathered could just be invalidated.
“No harm seems to accrue,” Abbott said in court Monday. In his order Tuesday, he again said any harm could be remedied by invalidating any signatures if he decides for the coalition in the end.
Abbott’s order also recognized how heavy of a lift it is to gather enough signatures to qualify an initiative.
“A successful signature gathering campaign is a significant undertaking,” Abbott wrote. “ ... Preliminarily enjoining the gathering of signatures could had defeat to the proponents of a constitutional initiative by default.”
Bozeman lawyer and former Republican state legislator Matthew Monforton, one of the submitters of the petition, agreed in court Monday.
“There’s absolutely no harm whatsoever for Montana homeowners being able to gather signatures and exercise their First Amendment right,” Monforton said, adding that most initiatives don’t end up getting enough signatures to qualify for the ballot.
“While we appreciate Judge Abbott dissolving the prior judge’s outrageous injunction, the fact remains that Montana’s judiciary unlawfully shut down signature gathering for two critical weeks despite a looming deadline to get 60,000 signatures,” Monforton said in an emailed statement Tuesday.
Under the new law, the Secretary of State can’t approve an initiative for signature gathering until an interim legislative committee reviews the proposal. The committee must vote on if it supports putting the initiative on the ballot or not. That’s not happened yet for CI-121. The vote would not stop the initiative from appearing if supporters gather enough signatures to qualify it, but the committee’s vote would be noted on the petition form.
While the Attorney General was already tasked with a legal sufficiency review for initiatives, under the new law he must also determine if a ballot issue would cause “significant material harm” to business interests in the state. If he determined it would cause harm, a warning would also appear on the petition form.
While the lawsuit argued supporters could not gather signatures because the Attorney General and Secretary of State hadn’t compiled with those provisions, lawyers for Knudsen and Jacobsen argued in court that the new law only applies to statutory initiatives, not those aiming to change the state Constitution.
In court Monday, lawyer and current Democratic lawmaker from Helena Robert Farris-Olsen, representing the coalition challenging the signature-gathering, argued the process did apply to constitutional initiatives. He also pointed out an interim legislative committee was going to vote on the initiative last week but decided not to while the court battle plays out.
“While there may have been some procedure, it wasn’t the correct procedures, and that procedure hasn’t been fulfilled. Signature gathering at this point would be premature,” Farris-Olsen said. “ ...That’s all we’re asking is that they comply with the law as it was written and as it was signed by the governor.”
Both Farris-Olsen and Monforton took issue with the new law more broadly.
“Frankly, House Bill 651 should have been drafted probably a little bit better, but it wasn’t,” Farris-Olsen said, pointing to the lack of clarity over what applies to ballot initiatives versus constitutional ones.
Monforton objected to how the new law gives the Legislature more power in the process of getting something on the ballot.
“HB 651 was passed by a Legislature that is hostile to the rights of citizens to amend our Constitution, as provided by the Montana Constitution,” Monforton said. “ ... HB 651 is an atrocity and it should never have been ... enacted by the Legislature. It directly implicates the people’s right to amend the ... Montana Constitution.”
Abbott’s Tuesday order also addressed questions raised about jurisdiction.
After McMahon blocked signature-gathering, Monforton went to the state Supreme Court to ask it to reverse the lower court. He argued that the state’s high court is the one that should have jurisdiction citing a segment of state code saying the Supreme Court has “exclusive” jurisdiction to review the legal sufficiency determinations related to initiatives.
While the state Supreme Court declined to step in, saying the district court could resolve the issue faster, both Monforton and Derek Oestreicher, an attorney representing the state, argued in court Monday the Supreme Court was still the right place to bring a challenge related to initiatives.
Both lawyers also said that in addition to District Court being the wrong venue, the timing was not correct. They pointed to a segment of state law they say requires any challenge to be brought in a 10-day window once enough signatures are gathered and an issue is cleared for the ballot.
Oestreicher said that process was designed to “avoid well-funded special interest groups stalling this process through litigation,” which is what he said was happening with CI-121.
“If something is messed up along the way, that’s a challenge for another day in another court,” Oestreicher said.
Monforton echoed that.
“We’ve lost ... almost 14 days for no reason,” Monforton said. “The arguments over jurisdiction are ones that can be made and decided and argued for the next few months. We don’t care. We just want to be able to get our signatures.”
Abbott’s order Tuesday says he does have jurisdiction over the question of if the Attorney General and Secretary of State followed the provisions of the new law and that the 10-day window did not apply in this case.
Abbott wrote that the questions about if the Attorney General’s legal review was sufficient or challenges to ballot statements should go straight to the high court, but that those issues weren’t at the heart of the lawsuit before him.
State Auditor Troy Downing, who submitted the initiative with Monforton, was also named in the lawsuit. He did not appear in court Monday and was not represented by a lawyer in the hearing.
In a meeting last Thursday, legislators from both sides of the aisle on the Revenue Interim Committee said they had concerns over the proposed property tax cap. They were joined by lobbyists representing local government and public employees, as well as business groups, who said they had concerns the measure, if passed, would equate to a large tax shift.
Sen. Greg Hertz, a Polson Republican who shepherded several bills to cut income and business taxes through the last legislative session, was skeptical that the proposed initiative would be a workable solution. But he also acknowledged that the Legislature missed opportunities last session to look at other policies to help residents struggling with skyrocketing property taxes.
“We probably haven’t reviewed them at the legislative standpoint that we should have,” Hertz said.
After the hearing last week, lawmakers unanimously voted to send letters to several other interim committees, urging them to discuss the proposal’s potential impacts on local governments, education and the state’s economy. The revenue committee also decided to hold off on its vote about the initiative while the legal process plays out.
— Reporter Sam Wilson contributed to this story.