Note: This is a two part version similar to the single-part essay immediately below. At the request of the Missoulian newspaper, which published it, I expanded it into two parts. This version explains more, so it is probably more useful to non-lawyers.
The Montana Supreme Court has a history of striking down constitutional initiatives that restrain government power. Voiding CI-116 (“Marsy’s Law”) is only the latest example. The court treated CI-116 the same way it treated CI-23, CI-27, CI-30, and CI-75.
In a 2012 Montana Policy Institute report I documented the court’s treatment of ballot measures over three decades. Every measure expanding government power survived the Montana Supreme Court. Almost every measure restraining government died there.
Such a pattern does not arise by accident. It arises from a system inherently biased and in need of reform.
In the usual court case, the plaintiffs cannot maintain their suit—much less win—unless they show they have “standing.” This means they must demonstrate the defendants have injured them, or imminently threaten to injure them, in some concrete way. But in the case of CI-116 and its predecessors, the Montana Supreme Court dispensed with the standing requirement. The plaintiffs claimed, but never actually proved, that they would be harmed by the initiative they opposed.
In the usual case, the plaintiffs begin at the trial level, in the district court. If they lose, they may appeal. But when CI-116 and its predecessors were challenged, the justices allowed the challengers to cut to the front of the line. In other words, the Supreme Court took the case at once. There was no trial court hearing. There was no testimony. There was no opportunity to cross-examine. There were no formal findings of fact.
In the CI-116 case Justices Jim Rice and Beth Baker dissented. As well they should have: The court’s procedure in these cases is unlike any other this side of the Third World.
In view of this history of systemic bias, it is difficult to take seriously the court’s stated reasons for its decision. Let us look at some of them nevertheless. This Part I examines two, and Part II examines some others.
First, the court ruled that the Montana constitution’s “separate-vote” provision allows judges to review an amendment’s content. The separate-vote provision states that separate amendments should be tabbed on the ballot so people can vote on them separately.
As it has previously, the court misconstrued the meaning and purpose of the separate-vote provision. Its background shows it to be a direction to the secretary of state not to combine different initiatives on the ballot: The people must be allowed to vote “yes” or “no” on each. The separate-vote provision was not intended as a vehicle for judges to second-guess the content of individual initiatives.
Once the court asserted its power to second-guess how CI-116 was drafted, it proceeded to rip the measure asunder. As in the past, the justices asserted that a single amendment with more than one “part” could be deemed more than one amendment, each requiring a separate vote to be valid.
Of course, no one but a few activist courts defines “amendment” that way. For example, the First Amendment to the U.S. Constitution has always been known as a single amendment although it consists of several distinct parts protecting six specific constitutional rights. The Fifth Amendment contains five distinct parts. The Fourteenth Amendment contains five sections and at least nine discrete provisions sprawling over a range of subjects.
Yet we consider the First, Fifth, and Fourteenth Amendments to be individual amendments because in ordinary usage an “amendment” is any measure the ratifiers choose to adopt as such. How many parts it has is up to the ratifiers. It is no business of the judges.
Next time: Part II examines the court’s other stated reasons and recommends a course of action.
* * *
To justify second-guessing how CI-116 was drafted, the Montana Supreme Court relied on a false premise. The premise was that deliberation over a voter initiative is inferior to deliberation in the legislature. This premise shows unfamiliarity with how the initiative and legislative processes actually work.
Legislative consideration is often hurried. Logrolling is very common. Lawmakers frequently settle for unsatisfactory language in hope of a later cure.
By contrast, a voter initiative is drafted over an extended period of time. There usually is no logrolling. By law, each draft is reviewed by expert state attorneys. They make recommendations, which frequently lead to further revision. Then a lengthy petition process provides weeks or months for public discussion. An official pamphlet makes the text and pro- and con- arguments available to every voter. And the election campaign provides extended time for still more discussion.
In other words, deliberation in the initiative process, while somewhat different from that in the legislature, is usually superior to legislative deliberation. This argues for less judicial monitoring of initiatives than of bills—not more.
As “precedent” for its holding, the Montana Supreme Court adopted a constitutional rule from Oregon. It did so even though Oregon’s constitutional language differs from Montana’s. The rule is that an amendment may not make two or more “substantive changes” unless the changes are “closely related.”
The justices failed to define “closely related.” Nor did they take testimony as to which provisions were closely related. This may explain some oddities in their decision. For example, they held that “an accused’s right to bail is not closely related to victims’ rights.” I daresay most people would disagree: A victim has a right to be protected from a second assault by one inadvisably released on bail.
Stunningly, the majority did not even count the number of CI-116’s “substantive changes” correctly. As the dissent observed, the majority repeatedly double-counted single changes by counting language as one change and effect as another.
The upshot of all of this is that the court has adopted a standard that renders it almost impossible for Montanans to amend their own constitution—at least to restrain the power of government.
Under that standard, don’t think even stark simplicity could save an amendment. Suppose an initiative states only, “The freedom of the press shall not be abridged.” Under the court’s rule, the new language counts as one change. Its effect on the legislature’s power is a second change. Its effect on the executive power is a third change. Its effect on the Montana University System a fourth change, and so on. The press is not “closely related” to the legislature, the executive, or the university system. Hence, the amendment is void.
When the court struck down the CI-75 “vote on taxes” amendment in 1999, I pointed out publicly that the court was threatening the constitutional initiative process. Apologists for the court harshly criticized me for saying so. But intervening events fully vindicate what I said then. Montanans MUST reform the state supreme court before they lose whatever democracy they have left.
Finally: The messenger of uncomfortable facts is often attacked with false charges. Hence the following disclosures: (1) I was not paid to write this article. (2) I have never voted for or otherwise supported a Marsy’s law. (3) In the only Montana Supreme Court case in which I was a party, our side won. (4) I was the unpaid drafting committee chairman for CI-75, but not a party or attorney in the ensuing case.