By: James C. Nelson, Montana Supreme Court Justice (Ret).
On February 8th Senator (and lawyer) Steve Fitzpatrick (R-SD 10) published a guest view in the Independent Record chastising the Montana Supreme Court for a “stunning” decision. The Senator’s litany of complaints included that the Court violated the separation of powers, “eviscerated the Legislature’s power to make rules and manage its own affairs” . . . “granted itself the power to punish the Legislature,” invaded the province of the legislature to interpret its own rules, accused the Legislature of bad faith, and [took]the legislature to task for violating its norms, all the while ignoring its own norms and precedents.
The Senator identified neither the case nor what the Court’s decision was actually about. The name of the case is Forward Montana v. State by and through Gianforte, 2024 MT 19. The Court’s decision is well-written and easy to follow; read it at: FORWARD MONTANA v. STATE BY AND THROUGH GIANFORTE (2024) | FindLawForward Montana and other plaintiffs are referred to as Appellants.
The case.
During the 2021 session, the Legislature considered SB 319, which dealt with the regulation of joint political fundraising committees. Like most, the bill went back and forth between the Senate and the House and was amended. A free conference committee, appointed to consider amendments, apparently did not. However, two days before the Legislature adjourned, this committee added four new sections to the bill during a 17-minute meeting, closed to the public. Several of these amendments were almost verbatim from a bill that failed to pass during the session. The bill, so amended, passed both houses in the last 24 hours of the session.
Appellants challenged two of the amendments for violating Montana’s Constitution, Article V, sections 11(1) and (3). In pertinent part, these require: (1) [a] law shall be passed by bill which shall not be so altered or amended on its passage through the legislature as to change its original purpose, and (3) [e]ach bill, except 2 general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title.
After various proceedings and hearings, the District Court concluded that the amended bill violated both of the foregoing constitutional mandates. The State, represented by the Attorney General, chose not to appeal—resulting in the trial court’s decision becoming the law of that case.
Appellants moved for attorney fees under the “private attorney general doctrine,” and § 25-10-711, MCA–exceptions to the “American Rule” under which litigants generally bear their own fees. The District Court denied the fee request. Appellants appealed that denial. The Supreme Court reversed and applied the doctrine.
The decision.
In reversing the District Court’s decision, the Supreme Court concluded, among other things, that: Appellants were entitled to attorney fees because “[they] alone [vindicated] important constitutional interests. The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interests in defense of these actions;” because “[t]he Legislature must follow certain rules in enacting legislation to ensure transparency and public participation;” and “because of the process through which the unconstitutional sections of this Bill came to be: an obviously unlawful Bill adopted through willful disregard of constitutional obligations and legislative rules and norms.”
Thus, this case had nothing to do with the parade of horribles described by Senator Fitzpatrick. Rather, this case involved the issue of attorney fees awarded to a litigant pursuant to the private attorney general doctrine.
More to the point, this case involved a challenge to unconstitutional legislation rammed through at the end of the session and the Legislature sucker- punching the public’s Constitutional right to know.
Ironically, Senator Fitzpatrick demonized the Court for doing its job—i.e. holding the Legislature and Executive accountable for not doing theirs.
Election Deniers are gathering petition signatures to repeal the resolution which removed Sandra Merchant from election administration. Pictured here is a sign at the local Republican Central Committee office on 10th Avenue South.Before getting to the petition effort of the election denier conspiracists, let’s remind ourselves that Sandra Merchant was failing at her responsibilities administering elections here in Cascade County. The County Commission made its decision to remove those duties from Merchant based on poor job performance. . .nothing more. For a detailed account follow this link https://dailymontanan.com/2024/01/14/election-errors-forced-the-cascade-county-commission-to-act/. Despite the facts, the local election conspiracy crowd, primarily housed in the Republican Pachyderm Club, argued that the decision was a power grab by Commissioners Larson and Briggs. They have ranted and raved, pointed fingers and shaken their fists. Now they are circulating a petition to repeal the county ordinance which removed election duties from Sandra Merchant.In order to place their repeal effort on the ballot the sponsors have 90 days from the date the resolution was effective. That date is December 12, 2023. So they will have to turn in their signatures somewhere around March 10th. They must have signatures from 15% of qualified electors in the county. That’s about 5,500 signatures, but that is the number of valid signatures required. They will need to gather many more than the minimum number to make up for invalid signatures that come into the process. The law also requires “The form of the petition must be approved by the county election administrator.” Does that mean Devereaux Biddick, who is the acting election administrator appointed by the County Commissioners on a temporary basis, reviewed and approved the form of the petition? Biddick is an election denier and close political ally of Sandra Merchant. In fact she was hired by Sandra Merchant to work in the elections office shortly after Merchant took office in January 2023. We wonder if her direct supervisors, Commissioner Joe Briggs and Commission Chair Jim Larson had any idea she was working on approving this petition.
ETA: An earlier version of this post indicated the petitioners has 60 days to gather signature. This has been corrected. The petitioners have 90 days to gather signatures.
U.S. Senate Candidate Tim Sheehy has a semi-autobiographical editorial circulating around the state. Like most puff pieces from politicians, it begins by saying, “I never thought of getting into politics until . . .fill in the blank here.” In Sheehy’s case it’s Afghanistan. It also gives him a chance to highlight his military service while condemning President Biden.
He must have forgotten that Donald Trump had reduced U.S. troops in Afghanistan by 13,100. In November 2020, he ordered that all troops would be evacuated by January 2021. Typical of Trump, he changed his mind and ordered withdrawal of more troops, instead leaving a total U.S. military force of 2,500 facing the Taliban in the strongest military position it had been in since 2001. The truth is U.S. military involvement in Afghanistan was plagued with problems for the 20 years we were there, just like the Russians before us. Pinning it on Joe Biden ignores facts and history. But hey, this is politics.
But back to Sheehy’s editorial. He then goes on to frame his decision to run for Senate in a “call to duty” format with a dollop of family values and business experience. You may have noticed that we didn’t say “private sector” experience. That’s because earnings from his company, Bridger Aerospace, which generates about $5 million a year for Sheehy, is mostly working on government contracts fighting forest fires. He also owns luxury houses in Big Sky, Polson, and Bozeman, in addition to a share of a large ranch outside Martinsdale.
And like most rich people, he has lots of investments. He says his net worth is between $74 and $200 million. (A complaint has been filed against Sheehy for the lack of specific information in his disclosure forms by a group called End Citizens United.) While he is condemning China, he’s investing in Chinese companies. While attacking environmental investment strategies, he is investing in “sustainable” software products to manage carbon emissions. He even removed the words “fighting on the front lines of climate change” from the Bridger Aerospace website after announcing he was running for Senate. https://montanafreepress.org/2023/11/03/taking-a-look-at-tim-sheehys-finances/
Like most rich people, Sheehy had considerable advantages provided by his family. He grew up in a multi-million dollar lake house in Shoreview, Minnesota, a wealthy suburb of St. Paul. He attended a private high school before being accepted to the Naval Academy. It’s hard to say when he became a resident of Montana. In 2016 Sheehy reported the Shoreview house as his residence in campaign reports of his donations to Greg Gianforte.
But probably the most disturbing thing about Sheehy’s editorial is his parroting of Trump’s dark conspiratorial view of America. He writes. “. . .the alternative is to leave these Marxists who weaponize cancerous ideologies like DEI and ESG and don’t represent our values in control—and to me, that’s unacceptable.” Most of us have no idea what DEI and ESG means (DEI- Diversity Equity and Inclusion/ ESG- Environmental, Social, Governance). His demonization and use of the term Marxist to describe his political opponents is straight out of Senator Joe McCarthy’s playbook. Ironically, this kind of red-baiting is fundamentally anti-American.
It’s been a couple weeks since the 2022 general election and What the Funk is here to talk you through the shitshow facing Montana. In Cascade County, with a 59% voter turnout, in every contested race, the Democrat lost. Republicans flipped two senate seats and retained all of their house seats. And yes, that means Republicans now have a supermajority in the state legislature and the governorship. They’re already introducing constitutional amendments left and right. We were worried this would happen if voters gave Montana Republicans a supermajority. You can read our full blog post about it here, with an overview excerpt below:
First, they will be able to propose constitutional amendments by referring them to the ballot, if they garner the support of two-thirds of legislators. That means that 100 politicians in Helena can put amendments to our constitution on the ballot. Currently, amendments can only be proposed by gathering enough citizen signatures. It’s hard to do, meaning that lots of amendments are proposed, but few actually make it to the ballot.
Second, a supermajority can call for an unlimited constitutional convention by referring a convention call to the ballot. If approved, a convention can propose changes to virtually anything in the constitution by a vote of the delegates.
What other impacts can we expect from this election?
Beyond the changes to the legislature due to the election, the Cascade County Commission is now a completely Republican board. Rina Fontana Moore is also out as Clerk and Recorder (pending the results of a recount in a race with only a thirty vote lead by her opponent). Republican County Commissioner Joe Briggs has stated that he plans to propose an ordinance change to move elections under the county commission.
Things look pretty bleak, but we did see a few glimmers of hope from our statewide elections. The State Supreme Court Justices Gustafson and Rice handily retained their seats. Gustafson was especially impressive – withstanding a full court press of Republican endorsements and campaigning for her opponent. A strong judicial branch is still part of Montana’s government!And LR-131, the truly shitty bill that attempted to interject the government into grieving families’ healthcare decisions for their dying infants, was voted down with a statewide vote of 53% Against to 47% For.Montana voters realized how shitty that bill was!
What fresh hell can we expect in the upcoming 2023 legislative session?
As mentioned above, the Republicans are already proposing numerous constitutional amendments. On the abortion rights front, Republican Representative Jennifer Carlson out of Manhattan has already requested a draft bill “to establish an infant born alive is a person.” Wait a minute, that is some loaded-ass language. Where have we seen that misleading wording before?…….THAT IS FUCKING RESURRECTED, ZOMBIE LR-131!!! A draft of the bill isn’t available yet, but that working title has the exact phrasing that was in LR-131. Did Montana voters not send a loud enough message to Republicans on what we think of LR-131???
It’s official, we are in the bad place.
We have to keep calling out this bullshit and informing the public when these elected officials hurt Montanans. What the Funk is keeping an eye on other poisonous draft bills requested for the 2023 legislative session. We will keep you posted as these hateful attacks on our rights wind their way through the legislative process.
