Opinion
The status quo;
The Montana Supreme Court (MSC) has assumed the position of the political master of Montana. Nothing politically or socially significant is allowed by the MSC to occur if the MSC disfavors it. Anything politically or socially significant is steered into the clutches of the MSC by political allies, giving the MSC the ability to assert its political dominance. This power grab is aided and abetted by many district court judges who act as political allies in this scheme, especially by those in the state capitol.
It is useful to clarify a pair of important definitions, as used here. Those are “liberal” and “conservative.” As used here, “liberal” is not the classical liberal of Thomas Jefferson, but the modern, progressive liberal who favors shift of power, wealth, and choice from people to government, all for allegedly good and humanitarian reasons. Conservative, on the other hand, describes those who favor shift of power, wealth, and choice from government to the people and those who believe that people can usually be trusted to behave well if simply left to their own devices.
In this era, the Venn diagram of liberal (in my definition) and Democrat will have nearly a complete overlap. The Venn diagram of conservative and Republican will have a lot of overlap, albeit not as near total as the liberal/Democrat diagram.
Truly, the MSC has become the final bastion of liberal power in Montana, along with the education industry and a few local governments. While Republicans have won and occupy the five statewide offices, 3/4 of Montana’s seats in Congress, all seats on the Public Service Commission, and 2/3 of the Montana Senate and Montana House, Montana’s judiciary and the MSC are held firmly by people committed to liberal ethic and the ultimate power in the MSC.
The Montana Supreme Court has become the modern equivalent of the Copper Kings who controlled Montana over a century ago.
Qualifications to Comment
I may have more direct experience with Montana politics than any other living Montanan. At least, I will be on a very short list for that top spot.
My first political letter to the editor was published by the Missoulian in 1963. I was critical of the school board for having cancelled a high school assembly and appearance by U.S. Senator Ted Kennedy, whose brothers were then U.S. President and U.S. Attorney General. The school board believed that young, high school minds should not be subject to whatever Senator Kennedy might say. In recognition of my letter to the editor, I was awarded a week’s suspension from school for having the audacity to criticize the school board.
After three years in the U.S. Army (66-69), I was Assistant Sergeant at Arms for the Montana House in the 1971 session. It was during that session that I first testified before the House Judiciary Committee, something I have done scores, maybe hundreds of times since. Having a strong political curiosity, I learned a lot during that 1971 session.
Since then,I have written and supported over 70 bills to passage and into law. This may be a record for any person in Montana.
I have been involved in many legal cases that have gone to the MSC, so I have had plenty of opportunities to observe the gambits and leanings of the judiciary. I am not an attorney, but I study the law. I have read hundreds, maybe thousands, of court opinions and legal briefs. I have read too many books about the law to remember or list. I am accepted in state and federal courts as an expert. Finally, I am probably the only non-lawyer in Montana who has written and published a law book (Gun Laws of Montana, Fifth Printing).
With this experience and long observation of the MSC, I am probably as qualified as anyone to comment on the position the MSC has carved out in the Montana political sphere. Now, some examples are in order to demonstrate my assertion that the MSC has become the new Copper Kings of Montana.
To restate, nothing the MSC disfavors politically is allowed to bear fruit in Montana, especially any significant effort to shift power, wealth, or choice from government to people or to reduce any power of the MSC to be in control.
CI-27
In the mid-1980s, I became a supporter of Constitutional Initiative No. 27 (CI-27). This proposed change to the Montana Constitution would have abolished the property tax and required a public vote to impose a sales tax or to increase a sales or income tax. This measure was begun and pushed by four sisters from Hamilton. It caught a lot of public interest during the signature-gathering phase. Enough signatures were gathered to place CI-27 on the ballot. Meanwhile, people associated with all sorts of public sector entities that had been living off property tax money were in a panic. A month or so before the election, it was discovered that many public sector entities had been illegally spending boatloads of taxpayer money to oppose CI-27.
I was involved in filing a lawsuit in district court (Benson, et. al.) in Missoula asking for a restraining order to prevent the illegal expenditure of public funds to take sides in a matter to be decided at an election. Without funds for attorneys, I pressed this lawsuit pro se (for myself). The district court immediately granted my motion for a restraining order and ordered all public sector entities in Montana to cease spending taxpayer funds to oppose CI-27.
However, the damage had been done. Public entities had already illegally spent over $100,000 of public funds campaigning against CI-27. Some conducted mass mailings to voters claiming that if CI-27 passed, it would be the “end of life on Earth as we know it” (yes, literally). CI-27 did not succeed at the General Election, at least in part because of the illegal expenditure of public funds and fear mongering by the tax consumers.
Shortly after the election, I amended the lawsuit Complaint to ask the court to void the election on CI-27 because of the improper influence of illegal expenditure of public funds, and to hold that the Secretary of State remained under a constitutional duty to put CI-27 back on the ballot for a fair election.
I was in court over this with multiple hearings, briefs, and much argument, for a year and a half. Finally, the district court ruled on a Motion for Summary Judgement. In that decision, the judge voided the previous election and held that the Secretary of State was constitutionally required to put CI-27 on the next ballot for a fair election. I had won!
Still, I was faced with what the MSC might do to tinker with this decision. I had won, so I could not appeal. I applied to the MSC for certiori in the case so I could get before the MSC and make the right, supporting arguments. The MSC denied certiori – declined to hear the CI-27 case.
This is where it gets dirty and the Copper Kings raise their tyrannical heads. About a month or so after the MSC refused to allow me to argue the CI-27 case, there was another case before the MSC in which CI-27 was not either argued or briefed. CI-27 was no part of this case. In its decision in this separate case, the MSC added a line at the end of the decision to prohibit the Secretary of State from putting CI-27 back on the ballot. This was allegedly because of the disingenuous excuse that the thousands of voter signatures that had gotten CI-27 to the ballot originally had somehow become stale with the passage of time and were no longer adequate. Done. No appeal was possible.
Without a case properly before it, not argued and not briefed, the MSC shut down a significant political change that it did not like. This was clearly the MSC asserting its power and bias in a significant liberal/conservative political contest.
This was my first lesson in how the MSC has claimed the political throne in Montana.
CI-75
In the late 1990s, U. of M. law professor Rob Natelson and Montanans for Better Government (MBG) prepared and pushed a constitutional initiative to require voter approval of any new taxes or tax increases. I warned Rob at the time that this measure, even if approved at the ballot, would get tossed by the MSC. Rob claimed that this would be impossible. He was a law professor, he said and had thoroughly researched and understood the applicable law. The measure was carefully crafted, he assured me, to survive any MSC scrutiny.
I told Rob that if everything else in the measure survived MSC scrutiny there was still one fatal flaw. That flaw is the provision in the Montana Constitution requiring that changes to the Constitution may only contain one subject. I explained to Rob that if he crafted a constitutional change to allow regulation of spotted dogs and the MSC didn’t like it, they would rule it violated the one-subject rule because it was about two subjects, dogs and spots. Rob thought that argument was ridiculous.
Rob and MBG put out vast effort, successfully, to collect the signatures to get CI-75 on the ballot. Then they put out even more effort to campaign for the measure and to counter the claims of all the tax consumers that the measure would drive Montana back to the Dark Ages. Despite that strenuous opposition, the voters of Montana approved CI-75. It passed at the General Election.
Then, as I had predicted, liberal partisans steered CI-75 into the clutches of the MSC (Marshall v. State). Again as I predicted, the MSC ruled that CI-75 was unconstitutional because it violated the one-subject rule for amending the Montana Constitution.
This is yet another example of how the MSC asserts its liberal mastery over Montana on any significant political issue.
Social Security Numbers to Hunt of Fish and Right to Privacy
The 1972 Montana Constitutional Convention proposed a right to privacy for the Montana Constitution. This was largely the pet project of convention member and counter-culture Helena attorney Bob Campbell. The effort was successful, and the proposed new Constitution was approved by Montana voters (allegedly – there are questions about this election and the MSC involvement).
Along about the turn of the century, Congress passed a law requiring that for states to be eligible to receive federal welfare funding, states must pass laws requiring collection of Social Security Numbers (SSN) for all occupational, vocational, and recreational licenses. This was the “deadbeat dads” law, hoping to help locate fathers not paying child support. In response, Montana passed laws that, among other things, required the collection of SSNs for all hunting and fishing licenses.
As President of the Montana Shooting Sports Association, I was a plaintiff in a lawsuit (MSSA v. MT) asserting that this Montana requirement for SSNs to hunt and fish violated the right to privacy that the people had reserved to themselves in the Montana Constitution.
This case was ultimately decided by the MSC. The MSC held, essentially, that the flow of federal welfare money coming into Montana was too important to be put at risk over the relatively minor question of constitutional privacy rights for hunters and anglers. Said differently, the MSC was willing to sell the people’s fundamental constitutional right to a high bidder, the federal government, if in support of something the MSC likes. Thus, the constitutional rights people have reserved to themselves, specifically from government interference, are for sale by the MSC if the price is right.
This is another example of the masters of Montana asserting their liberal political bias upon the people of Montana.
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MSC Justices Elected by District
In 2011, Senator Joe Balyeat carried Senate Bill 268, for a referendum to require that MSC justices must be elected from districts in Montana, just as members of the Public Service Commission (PSC) have always been elected, rather than in a statewide election. This was an attempt to break up the Helena-centric cabal that the MSC has become. It threatened the power of the MSC by possibly introducing new justice candidates that failed to share the tight-knit hold Helena-area justices have achieved on Montana politics. SB 268 passed the Legislature on an essentially party-line vote, Republicans for and Democrats against. That passage set Legislative Referendum 119 on a path for a public vote.
As with other political changes counter to MSC wishes or position, opponents surfaced to direct LR-119 into the jaws of the MSC (Reichert v. State). Of course, the MSC torpedoed the measure, disallowing a public vote, on the sketchy theory that electing MSC justices by district would disenfranchise voters not in the election district, thereby violating the one-man, one-vote principle. This notwithstanding that by regional district is how PSC commissioners have long been elected with no similar complaint, how legislators have always been elected, and how members of the U.S. House are elected when Montana has enough population to deserve more than one. This is one of many examples of how the MSC has ruled to protect its own power and its ability to control Montana.
CI-97 and CI-98
In 2006, two proposed constitutional amendments repugnant to the MSC were “decertified” by the MSC. CI-97 would have imposed a constitutional spending limit and CI-98 would have allowed for recall of judges. It is easy to imagine why the MSC was hostile to these proposals, since they both threatened the established order and MSC power.
Campus Carry and the Constitution
In 2021, the Legislature passed and the Governor signed HB 102. The central purpose of HB 102 was to remove alleged and dangerous “gun free zones” in Montana, places in which victims are disarmed by public policy but would-be criminals are not. This bill, then law, contained a provision overriding the prohibition of firearms on Montana college campuses by the Board of Regents (BoR).
Soon after HB 102 was signed into law, the BoR filed a lawsuit (Regents v. Montana) challenging the campus carry feature of the law. The lawsuit was filed in the notoriously liberal First Judicial District in Helena. Before any briefs were filed and before any oral arguments were made, the judge in the case issued a written order declaring that in this case about campus guns, he would not tolerate any discussion whatsoever about the right to keep and bear arms reserved to the people in either the Montana or U.S. constitutions.
The specific verbiage used by the court in this written order was, “… arguing the breadth of federal or state firearm rights, or arguing the validity of Regents Policy 1006 [Regents’ gun ban. Ed.] will not be considered or tolerated by this Court;”
Having excluded consideration of the right to keep and bear arms from the case, the judge ultimately and predictably found in favor of the Regents, holding that this new state law unconstitutionally interfered with the Regents’ power to manage the university system. It is no surprise that, upon appeal of this decision, the MSC quickly upheld the decision of the lower court without concern about the lower court’s exclusion of the right to keep and bear arms from consideration. Moreover, the MSC decision had the effect of also exempting the BoR and the university system from all individual rights protected in the Montana Constitution – freedom of speech, press, religion, assembly, and much more.
This is yet another example of how disingenuous Montana’s judicial cabal can be in maintaining its grip firmly on the reins of power in Montana.
It also demonstrates how the judicial cabal will operate symbiotically with the other remaining concentration of liberal power in Montana, the education industry.
Conclusion
The situation of the Montana Supreme Court assuming ultimate power in Montana is most apparent to anyone with long observation of Montana politics. Yet, the evidence is in the public record and available to anyone. Public knowledge of and outrage over the MSC’s assumed mastery is growing. The Legislature, especially, is beginning to push back more forcefully on behalf of the people of Montana.
It is reported that an adviser once informed Joseph Stalin of criticism by the Pope, to which Stalin is said to have responded, “How many divisions has the Pope?” It remains to be seen when other elements in Montana will “Just say no” to the nefarious power plays by the Montana Supreme Court and simply refuse to comply.
How many divisions has the Montana Supreme Court?
Longtime Montana political observer and participant Gary Marbut is president of the Montana Shooting Sports Association, the primary political advocate for Montana gun owners.
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