Montanans have always been serious about governing themselves in the way they see fit. While we have a representative government—i.e. one in which we elect officials to represent, lead and act on our behalf in governing—Montanans have never ceded complete control over our lives, liberty and property to the political branches of the State government. We citizens retain the final say.
To that end, the first two sections of Article II of our Constitution make clear that:
All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Article II, section 1; and that
The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and form of government whenever they deem it necessary. Article II, section 2.
For these reasons, we reserved unto ourselves the power of direct law-making. This power is not to be confused with other rights in Article II. Rather, we kept or held back this power when our Constitution was written. It is ours to exercise when we want to make laws ourselves, repeal laws that the legislature has made, or amend our Constitution.
To implement this power of direct law-making we adopted, among other provisions, Article III sections 4 and 5: the former provides that “The people may enact laws by initiative on all matters except appropriations of money and local or special laws.” The latter provides that: “The people may approve or reject by referendum any act of the legislature except an appropriation of money.”
Each of these sections contains some straight-forward requirements about the number of electors that must sign a citizen initiative or referendum petition to place the proposal on the ballot, and a requirement as to the number of legislative districts that must be represented by the signers. Article XIV, sections 2 and 9 contain similar provisions empowering us with the ability to call a constitutional convention and to amend our Constitution.
But the citizens initiative and referendum process is not favored by the Legislative and the Executive branches. These political branches want their representative power of law making to be exclusive. They don’t like the idea of direct lawmaking by us, because ours is a power over which they have virtually no control.
Indeed, the last two sessions of the legislature and the governor enacted laws to make the citizens initiative and referendum process too cumbersome, complicated and expensive for us to use. They’ve saddled the exercise of our retained power with infringements such as, for example, committee reviews, thumbs up or down recommendations, substantive legal by review the Attorney General, determination of whether the proposal will harm business interests, and a $3,700 fee just to file a petition.
Thankfully, a diverse group of concerned Montanans filed suit to claw back our retained power from this legislative/executive power-grab. And, on February 5th, Helena District Judge Mike Menahan entered his order for partial summary judgment in favor of these citizen plaintiffs.
Among other things the court ruled that the provision permitting the Attorney General to substantively review proposed ballot issues is unconstitutional. Judge Menahan followed Montana jurisprudential law that reposes in Montana’s courts the exclusive power to determine whether a proposed ballot issue is substantively constitutional or not.
The court also ruled that the $3,700 filing fee is unconstitutional—upholding the obvious: that the Constitution itself does not grant the legislature or executive the power to charge us a fee for exercising our power of direct law-making that we retained when the Constitution was written.
We won this battle; but this fight is far from over.
Jim Nelson is a retired Montana Supreme Court justice