Masters of
Montana
Politics of the Montana Supreme
Court
by
Gary Marbut
April 5, 2024 (C)
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 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 MSC 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, who's 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 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 opportunity 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 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.
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 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 MSC 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 MSC and simply refuse to comply. How many
divisions has the MSC?
End
Longtime Montana political observer and participant Gary Marbut is
president of the Montana Shooting Sports Association, the primary
political advocate for Montana gun owners.