Judge allows for signature gathering to continue on property tax ballot initiative

A Lewis and Clark County District Judge ruled Tuesday that signature gathering for a constitutional ballot initiative that would limit residential property tax increases to less than 2 percent per year could continue while litigation challenging the proposal plays out, reversing a previous order.

In his ruling, Lewis and Clark County District Judge Christopher Abbott ended a temporary restraining order put in place on Jan. 13 by Judge Michael McMahon and denied the Montana Federation of Public Employees’ request for a preliminary injunction on signature gathering.

Abbott said in his ruling that issuing a preliminary injunction would violate the law’s mandate to minimize damage to all parties during court proceedings and said that he could not see what harm signature gathering would cause the plaintiffs.

“The court holds that whatever the merits of Plaintiff’s claims may prove to be, their 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. And he said any harm caused to the plaintiffs could be remedied by invalidating signatures — should he decide to rule in their favor.

Matthew Monforton, one of the defendants and a leader of the initiative, argued the same point in court on Monday. Monforton is a Bozeman lawyer and former Republican Montana lawmaker.

“There is absolutely no harm whatsoever to Montana homeowners being able to gather signatures and exercise that First Amendment right to petition their government for redress of grievances,” Monforton said.

In a statement on the ruling Tuesday, Monforton added: “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.”

Defendants in the case are the State of Montana, Attorney General Austin Knudsen, Secretary of State Christi Jacobsen, current auditor Troy Downing and Monforton. Plaintiffs include MFPE, the Montana Farmers Union as well as a private farmer and business owner.

To appear on the 2022 ballot, supporters of Constitutional Initiative 121 must collect 60,359 signatures by June 17. Abbott said in his ruling collecting that many signatures in a finite timeframe is a “significant undertaking” and “preliminarily enjoining the gathering of signatures could hand defeat to the proponents of a constitutional initiative by default.”

At the same time, Abbott said the rejection of a preliminary injunction does not reflect any opinion on MFPE’s claims that Knudsen and Jacobsen did not follow a newly passed law that amended the process of examining ballot initiatives before approving signature gathering for Constitutional Initiative 121.

MFPE and the Attorney General’s Office did not respond to comment on the ruling by publication.

“The court emphasizes that its order today expresses no opinion on the merits of plaintiffs’ claims, except to say that they raise a substantial question regarding the construction of a novel statute,” Abbott wrote.

House Bill 651 amended state law to require the attorney general conduct a legal review of ballot initiatives to determine if they will cause “significant material harm” to one or more business interests in Montana. The law also stipulates that the secretary of state should send a copy of any approved ballot initiatives to the executive director of the Legislative Services Division, who must then provide the information to the appropriate interim committee for review.

In its original lawsuit filed on Jan. 12, MFPE argued that because the two officials failed to follow the required statutory process, the Secretary of State had no authority to authorize signature gathering for the initiative.

The state has argued the new law only applies to statutory initiatives and not constitutional initiatives like CI-121, which would amend taxation provisions in the Montana Constitution.

Addressing those claims in court Monday, Robert Farris-Olsen, a current Democratic House Representative from Helena and lawyer for the plaintiffs challenging the initiative, disagreed.

“Frankly, House Bill 651 should have been drafted, probably a little bit better, but it wasn’t … if they wanted to make it apply only to statutory initiatives, they should have said so,” he said.

Monforton also took issue with the bill as a whole.

“HB 651 is an atrocity, and it should never been enacted by the legislature; it directly implicates the people’s right to amend the Constitution,” he said in court on Monday.

The state also argued that proper jurisdiction for the case is the Montana Supreme Court — a plea the high court rejected last week, saying that it could not handle the case faster than the district court.

State attorney Derek Oestreicher said in court on Monday that the timing of MFPE’s lawsuit was improper and by law should be brought within 10-days of the governor certifying the initiative to be on the ballot. And because of the timing, Oestreicher said “jurisdiction is lacking in any district court” and “even in the Supreme Court at this time.”

Oestreicher said the 10-day requirement is structured to “avoid well-funded special interest groups stalling this process through litigation,” which he said is happening in the case of CI-121.

In his Tuesday ruling, Abbott wrote that the 10-day window did not apply to the plaintiffs’ claims that the Attorney General and Secretary of State did not abide by the statutory provisions of the new law — a claim he said Tuesday he has jurisdiction over.