Explanation of Intent - HB 197

Constitutional Referendum in re the Powers of the Board of Regents

by Gary Marbut


Gary Marbut is president of the Montana Shooting Sports Association, the primary political advocate for Montana firearm owners.  Marbut is also the author of Gun Laws of Montana, a trade paperback now in its Fifth Printing and the accepted authority on its subject matter.  Even more important to this Explanation of Intent, Marbut created the specific language to be amended into Article X with this constitutional referendum.  Therefore, Marbut can best explain the intent for this proposed language.


The purpose of this Explanation is that it will be introduced in committee testimony concerning the subject constitutional referendum, and will become a part of the legislative history of that measure.  Any future court or researcher seeking to learn about the intent for this measure will have access to this Explanation.


Article X, Section 9.(2)(a) says "The government and control of the Montana university system is vested in a board of regents of higher education which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system and shall supervise and coordinate other public educational institutions assigned by law."  There has long been disagreement in Montana about the extent to which this language empowers the Board of Regents (BoR) to act and to enforce its policies.

The 2021 session of the Montana Legislature passed House Bill 102 (HB 102), a measure intended to eliminate dangerous "gun free zones" of various types in Montana, places where citizens are denied their right to keep or bear arms by government edict.  This bill sought to innervate and apply Article II, Section 12 of the Montana Constitution, which says, "Right to bear arms. The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons."

This reservation of right was adopted by the people of Montana and memorialized specifically as a bar to action by government actors and government entities.

HB 102 included provisions designed to allow possession of firearms on campuses of the Montana University System (MUS), overriding a broad firearms prohibition and alleged "gun free zone" long asserted by the BoR, Policy 1006.  The BoR filed a lawsuit, Regents v. Montana, seeking to disallow the campus carry feature of HB 102, based on the powers delegated to the BoR in Article II, Section 9(2)(a).

Early in the process, the District Court issued an Order declaring that, in this case about campus firearms, the Court would not tolerate any arguments about the right to keep or bear arms preserved to the people in the Montana Constitution or the right to keep and bear arms preserved to the people in the U.S. Constitution.

From the District Court's decision and Order dated July 16, 2021, Page 14, item # 6.

“Argument seeking to redefine or enlarge the issues of this declaratory relief proceeding, arguing the breadth of federal or state firearm rights, or arguing the validity of Regents Policy 1006 will not be considered or tolerated by this Court;”

Further, HB 102 contained Section 5, which read "Section 5. Prohibition on infringement of constitutional rights. The board of regents and all university system employees subject to the authority of the board of regents are prohibited from enforcing or coercing compliance with any rule or regulation that diminishes or restricts the rights of the people to keep or bear arms as reserved to them in Article II of the Montana constitution, especially those rights reserved in Article II, sections 4 through 12, notwithstanding any authority of the board of regents under Article X, section 9(2)(a), of the Montana constitution."

Article II, Sections 4 through 12, include the following:

4. Individual dignity
5. Freedom of religion
6. Freedom of assembly
7. Freedom of speech, expression, and press
8. Right of participation
9. Right to know
10. Right of privacy
11. Searches and seizures
12. Right to bear arms

In its conclusion, the District Court held that the campus carry features of HB 102 were unconstitutional because they impermissibly infringed on the BoR's powers under Article X, Section 9(2)(a).  The Court ALSO held that Section 5 of HB 102 was unconstitutional for the same reason.  Upon appeal, the Montana Supreme Court agreed with and affirmed the District Court.

This left the BoR free to discriminate against "any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas." (Article II Section 4.)

This left the BoR free to make law or policy respecting an establishment of religion or prohibiting the free exercise thereof. (Article II Section 5.)

This authorized the BoR to prohibit people from peaceably assembling, petitioning for redress or peaceably protesting governmental action. (Article II Section 6.)

This allowed the BoR unfettered ability to deny freedoms of speech, expression, and press in any or all ways. (Article II Section 7.)

This allowed the BoR to ignore the potentially-troublesome right of participation, that "The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law." (Article II Section 8.)

This also allowed the BoR to disregard a potential problem for it and MUS campuses, the sometimes awkward right of the people to know, that "No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." (Article II Section 9.)

This court decision also freed the BoR from any obligation to respect the right of privacy for anyone it deems under its broad umbrella. (Article II Section 10.)

This judicial outcome allows the BoR to ignore all restraints on search and seizure, including the need for pesky judicial warrants before searching and seizing. (Article II Section 11.)

Finally, the resolution of this case allows the BoR to totally override the BoR-disfavored right to keep or bear arms that the people have constitutionally reserved to themselves specifically from interference by such government entities as the BoR. (Article II Section 12.)

It is difficult to accept that all of this is what the adopters intended upon adopting Article X, Section 9(2)(a).  All branches of government are subject to the restraints imposed by the people in Article II, the Declaration of Rights, including the executive, the legislative, and the judicial.  Even subdivisions of state government are subject to these restraints, including counties, cities, and any special districts.

The decision by the District Court, and its affirmation by the Montana Supreme Court, elevates the BoR as a new and superior branch of government, superior to the Legislature, to the executive, and arguably even to the judicial branch.  If the BoR is superior to the Constitution and to the legislative and executive branches, it must arguably also be superior to the judicial branch.  This decision creates a "constitution-free" zone anywhere the BoR chooses to assert authority.  This is highly irregular, inappropriate, and inconsistent with our form of government.  It may also run afoul of the guarantee in the U.S. Constitution that every state have a "republican form of government."  (Article IV, Section 4, U.S. Const.)  The status quo interpretation of limitless BoR powers demands correction.  The civil correction is to amend the Montana Constitution to clarify that whatever powers are delegated to the BoR in Article X, Section 9(2)(a), that delegation does not include the power to ignore the rest of the Constitution, as the courts determined in Regents v. Montana.  That is the reason for this constitutional referendum.

Intent for Effect of the Constitutional Referendum

This constitutional referendum proposes that a new subsection be added to Article X, Section 9(2), to wit:

"(d)  The board may not exercise any power that conflicts with any other provision of this constitution or that conflicts with state laws."

So, what does this language actually mean and what is it intended to accomplish?

The first phrase, "The board may not exercise any power", clarifies that there are limits to the BoR's power, unlike the net holding of the courts in Regents v. Montana.  As we have seen above, the net result of court decisions in Regents v. Montana was to effectively cast the BoR as some sort of super entity unaffected by the limits on power that apply to all other governmental entities in Montana.  Operating under this phrase, if approved, the BoR, whatever its powers, would not be some super entity with limitless powers unmodified by legal constraints.  It would be required to submit to the restraints imposed on all governmental entities and actors in all parts of the Constitution outside of Article X, Section 9(2)(a).

It is worth noting that "may not" is the strongest form of prohibition because it removes permission entirely.  This is intended.  Too often drafters of constitutional language choose "shall not" as the most inflexible prohibition.  The problem is that when "shall" is coupled with a negative, that coupling has an odd semantic effect.  "Shall" means "is required to."  When coupled with a negative, as in "shall not," the meaning becomes "is not required to," an absence of compulsion but not a prohibition.  This is not the effect intended in this instance.  Rather, the effect intended is an outright prohibition on exercise of the described authority, an overt withholding of permission to act.  "May not" then becomes the strongest, most inflexible form of prohibition, most effective and least likely to be misunderstood or misapplied.

Then, the carefully chosen language delineates exactly what conduct is prohibited.  That prohibited conduct is about things that are in conflict with any part of the Constitution outside of Article X, Section 9., and things that are in conflict with duly enacted state policy expressed as laws, more specifically as statutes passed by the Legislature and signed or allowed to become effective by the Governor, or statutes enacted by the people via initiative or referendum.

About constitutional conflicts, this will clarify that the restraints on all governmental entities that have been placed in the Constitution by the people will apply to the BoR, just as those restraints apply to all other governmental entities, from the Governor all the way down to special districts.  Under application of this language, the BoR would no longer have unfettered authority to violate citizens' freedom of speech, religion, and much else.  The BoR would be powerless to discriminate based on race, religion, and more.  The BoR would no longer have a special entitlement to pollute the environment.  This prohibition would require the BoR to behave like all other governmental entities, subservient to the will of the people who empowered the BoR when the people adopted the constitutional language at Article X, Section 9.

About the prohibition on exercise of BoR power in conflict with "state laws," this prohibition also is intended to hold the BoR to the same standard to which all other governmental entities are held.  Under this prohibition, buildings on MUS campuses would have to comply with life safety codes.  For example, a lecture hall could be required to have enough exits for effective evacuation in the event of emergency, and the required exit doors could not be chained shut.  MUS campuses could not discriminate based on race or religion, in hiring or admissions.  Contracts entered into by campuses of the MUS for employment, construction, and more would have to be honored.  The BoR could not adopt criminal laws and enforce those without juries but with imprisonment, public flogging, or execution.

The examples are legion.  The BoR could not ignore Montana's open meeting law.  The BoR would be subject to Montana's Administrative Procedures Act, public records requirements, state audits, state employment requirements, regulation of alcohol, tobacco, and marijuana, requirements for deposits and investments, state requirements for disbursement and expenditure of public funds, public retirement system laws, criminal laws, and much more.  (Note:  See the amicus brief submitted by Rep. Seth Berglee, et. al., to the Montana Supreme Court in Regents v. Montana.)  All of this would change from the status quo following the Regents v. Montana decision whereby the BoR is deemed to be exempt from state laws because of the power allegedly given the BoR in Article X, Section 9(2)(a).


Should this constitutional referendum be approved by the Legislature and subsequently approved by the people of Montana at ballot, and should any question arise about just why this effort was undertaken and what it was intended to accomplish, this writing should answer any such questions about the reason done and the result intended.

Gary Marbut, citizen, elector, and president of the
Montana Shooting Sports Association