The only conclusion that can be drawn from the 2015 Montana legislative session is that despite changing all the rules in their favor, the compact failed in both houses of the legislature because it could not muster the 2/3 constitutionally-required vote.
The rules changes, orchestrated by Representative Dan Soloman in cahoots with
democrat republican Bruce Tutvedt and minority leader Chuck Hunter, were aimed at overcoming the “60-vote problem”- that is, the public committee hearing process where huge negatives existed for the CSKT Compact just as in 2013. Hence the “silver bullet” rule.
But because the “silver bullet” rule left in tact the required 2/3 vote to overcome a ‘do not pass’ or ‘adverse committee report’ finding, that silver bullet rule change had to be changed again and it was, by a simple house majority vote, as initiated by Representative Frank Garner (R-Kalispell) in relation to the medicaid bill. This move was supported by supposedly-agenda-free legislative services staff, the democrats and of course the governor knew that both of his initiatives, Medicaid and the Compact, were in public disfavor.
However, House procedural rule changes cannot be used to overcome constitutional requirements. According to Article II Section 18 of Montana’s constitution, the state of Montana shall have no immunity from suit to persons or property unless specified by 2/3 vote of each House. The Compact limits the state’s immunity from suit in the case of costs, damages, or attorney’s fees. So the 2015 CSKT Compact failed in both houses (Senate 31-19, House 53-47).
The Governor nevertheless signed the “bill” into “law” last week, with Sponsor Vincent and the Tribe looking on. Well the president of the United States could have been there and it still didn’t make SB 262 “law” or capable of being handed off to the U.S. Congress. It is a picture worth a thousand words, the governor, the sponsor, and the Tribe signing a bill that wasn’t even lawfully passed. That will be priceless when election time rolls around again. But maybe that’s all the payoff required.
The Governor, the Attorney General, and the full legislature still have some public and court room explaining to do. How about explaining to the court why the plain language of the Compact Bill, page 46, that limits the state’s immunity from suit from the immediate property takings and damages the occur from the immediate implementation of portions of the Compact and why that should not be subject to the approval of 2/3 of each house as stated in Article II of the Montana Constitution:
Section 18. State subject to suit. The state, counties, cities, towns and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature.
In the meantime, the CSKT Compact/SB 262 did not pass the 2015 legislature.
There is much underway and this blog is optimistic about on-going and other planned efforts needed to enjoin any aspect of the Compact from being implemented as called for in the Bill title (‘immediate effective date’) and two other portions of the Compact bill. Of course, if the Constitution is upheld by the judiciary, the vote was invalid and there is no compact, however, it is better to be ready in case some other avenue is chosen to move the compact forward. Beyond this immediate work, the further effort would be to focus on elements of the compact using multiple grounds and in multiple forums.
We are sure that others are already thinking about a way forward should the Compact ever make it to Congress focusing on provisions of federal law required of federal agencies. And still other efforts seem to be focusing on elected officials. Certainly Montana voters have been injured by the actions of state legislators, the governor and attorney general.
Stay tuned, spread the word!