Can the Montana Attorney General stop constitutional initiatives?
Darrell Ehrlick
(Daily Montanan) The Montana Supreme Court has ordered Montana Attorney General Austin Knudsen to answer how a constitutional ballot initiative spearheaded by a Bozeman attorney who is also a former GOP lawmaker was “insufficient” when a nearly identical ballot was accepted, and how notes attached to such measures square with the Montana Constitution.
Attorney Matthew Monforton filed the challenge with the Montana Supreme Court on Thursday and Justice Laurie McKinnon ordered either or both of the Secretary of State’s Office or Knudsen’s office to respond within 30 days.
By state law, a challenge to the ballot or initiative process, including a dispute about a measure deemed “insufficient” by the Attorney General’s Office, must go directly to the Supreme Court and be given priority. Monforton had supported Ballot Issue No. 2, which would have amended Article 8, Section 3 of the state constitution that would reshape the taxation system for property, “based upon its value at the time of purchase, rather than current market value.”
The ballot measure would then limit the annual increase of a property’s taxable value to 2% until a change of ownership occurs, which would allow the property’s taxable value to reset to its current market value.
The ballot measure would have also limited the total tax rate to 1% of the value of the property.
The process for getting a measure before Montana voters currently requires such ballot initiatives to be reviewed by both the Secretary of State’s Office and the Attorney General’s Office to ensure it complies with state law. In this case, the Secretary of State’s Office sent Monforton back several changes, which he accepted. The ballot measure was then forwarded to the Attorney General’s Office for review.
Deputy Attorney General David Ortley determined that the measure was “insufficient” and that it could not appear on the ballot, while a nearly identical measure was approved in 2021, but ultimately failed to make to the ballot because it did not collect the required number of signatures set out in state law.
“The Attorney General determined that Ballot Issue No. 2 was legally insufficient even though he had determined in December 2021 that a nearly identical ballot initiative, CI-121, passed muster,” Monforton wrote in the brief. “He has not explained this contradiction.”
In that court filing, Monforton argues that the Attorney General does not have the power to stop a ballot issue, because it violates the separation of powers in the state constitution.
“As an executive branch officer, ‘the attorney general does not have authority to make a declaration regarding the constitutionality of’ ballot issues,” Monforton wrote, quoting the notable Cottonwood Environmental Law Center v. U.S. Forest Service decision in Montana law. “Therefore, ‘any future determination by the attorney general that bases legal deficiency on a matter of constitutional interpretation cannot stand.’”
He also challenged the Attorney General’s ability to attach a fiscal note to the language of the ballot. The Montana Legislature has allowed the Attorney General to describe the financial impacts of a ballot initiative, but Monforton said doing so is a violation of the state’s constitution, which only requires the plain-meaning text of the bill and requirement for signature gathering. He said adding the extra wording, in this case a “financial statement,” which may bias a voter, is a violation of the constitution.
Furthermore, Monforton said the proposed “fiscal statement” described the impact the property tax referendum would have on state coffers, but it also included the impact on local government, which the court filing argues is illegal as well.
“The Montana Constitution neither requires nor authorizes the Legislature to impose additional burdens for circulating petitions for constitutional initiatives, such as requiring petitions to include fiscal statements,” Monforton wrote.
He said the fiscal note developed by the state was also unclear and could result in voter confusion.
“As stated in the fiscal note, the current tax rates differ substantially for different classes of real property,” the court brief notes. “For example, Class 13 (electrical generation and telecom) is taxed at a 6% rate, while residential property is taxed at a rate of 1.35%. As a result, Ballot Issue No. 2 would have a different impact on urban counties such as Missoula Counties than it would on counties such as Rosebud County, where the Colstrip power plant is situated.”
In an interview with the Daily Montanan, Monforton said the move by the Attorney General’s Office was a “deliberate attempt by Republicans to suppress the rights of Montanans to circulate a petition.”
He said the GOP seems satisfied to tax long-term Montana residents out of the state, while welcoming wealthy out-of-state residents who purchase property at higher values, raising more money for state coffers without having to vote on tax increases.
“The claim of the governor and Republicans desiring property tax reform is a sham,” Monforton said. “They like the higher taxes they get, and they don’t have to reform it. The current system allows for increases in revenue without having to vote on it, while allowing them the façade that they’re against bigger government.”