Montana Supreme Court Hears Challenges to SB 93’s Initiative Rules, Including $3,700 Filing Fee and 4‑Year Resubmission Ban

The Montana Supreme Court heard competing arguments Tuesday in Evanston v. State of Montana over three provisions of Senate Bill 93 that change how initiatives reach the ballot. Proponents told the justices the provisions — a $3,700 filing fee (waivable for hardship), a four‑year bar on refiling substantially similar initiatives rejected by voters, and a requirement that a legislative committee’s vote be disclosed to petition signers — impermissibly burden the people’s reserved lawmaking power; state lawyers urged a powers‑based ‘‘facilitate versus impair’’ framework and defended the measures as administrative steps to inform voters and deter frivolous petitions.

Plaintiffs’ lead counsel John Meyer asked the court to adopt a standard that ‘‘maximizes the people’s power of lawmaking’’ and to affirm the district court’s orders striking SB 93’s challenged provisions. Meyer said the constitution’s initiative provisions were designed to preserve broad popular lawmaking and argued the resubmission ban and filing fee function as barriers that could be imposed only with clear constitutional authority. ‘‘We’re asking the court to take four actions,’’ he told the justices, including adoption of the facilitate‑versus‑impair test and a ruling that portions of SB 93 impair the people’s power.

State counsel Brett Mead told the court the appropriate inquiry looks to whether a regulation facilitates or hinders the initiative power. Mead defended the $3,700 filing fee as analogous to other filing fees that offset administrative review costs and said the fee is subject to a hardship waiver. ‘‘The filing fee is constitutional, and it is akin to other administrative fees,’’ he said, arguing the charge reflects actual state review costs and helps deter nonserious filings while preserving access through waivers.

Justices repeatedly questioned both sides on the legal standard to apply — whether the analysis should be rights‑based strict scrutiny or a powers‑based test that balances legitimate state interests in administering elections against the people’s ability to propose laws. Several justices pressed the state on how the fee and the timing of a legislative hearing could effectively impair access, and asked whether existing voter information mechanisms would make the committee‑vote disclosure redundant.

Rob Ferris Olson, representing Planned Parenthood Advocates of Montana and other proponents, argued the record does not show the kinds of ballot‑fatigue problems other states have cited and said the fee and resubmission restriction ‘‘stop people from engaging in constitutionally protected activity.’’ Olson also told the court that comparable cases cited by the state often relied on expert factual records that Montana’s record lacks.

State attorneys pointed to the trial‑court record — including an affidavit by a secretary of state official — showing how a prior measure moved through attorney general review, legislative services review and a legislative hearing before being approved for signature gathering. The state urged the court to clarify the standard and said factual determinations about whether a given regulation impairs the initiative power may be matters for the district court on remand.

The parties also debated whether an equitable attorney‑fee doctrine (private attorney general doctrine) should apply in the event the proponents prevail. Proponents asked the court to award fees for prevailing constitutional claims; the state cautioned that broad fee awards could chill robust defense of statutes and urged restraint.

After extended questioning, the justices said they would take the case under advisement and issue a written opinion after considering the briefs and today’s arguments. No decision was announced from the bench.