© 2016 Concerned Citizens of Western Montana
On Tuesday, the Flathead Joint Board of Control voted to appeal the Manley decision concerning the constitutionality of the CSKT water compact vote in the 2015 legislature. The motion was passed with a 7-2 vote. Two commissioners abstained from voting because of the current election controversy that we reported on in May.
In July, Judge Manley ruled that while the water compact did in fact confer a new immunity to the state in its “Law of Administration”, making the vote unconstitutional, but he determined it was not necessary to void the Compact bill, potentially forcing the compact back into the legislature. Instead, Judge Manley attempted to “fix” the compact through a tortuous argument, drawing from a different section of the Compact bill, and suggesting that the offending language could simply be severed, or removed, from the compact. The logic is not evident, but the politics are.
In so doing, Judge Manley ignored the Montana Constitution, case law and Montana Supreme Court precedent in which the MT Supreme court ruled that an entire bill is void if the vote on that bill is unconstitutional.
In other words, Judge Manley ruled in favor of everybody—giving the Joint Board a victory because the bill does create a separate immunity for the state thus requiring the 2/3 vote in the legislature, and then giving the tribes and the state what they asked for, essentially giving everyone an issue to appeal. At the joint board meeting, the attorney called it “splitting the baby.”
Manley agreed that the Joint Board was correct, and the vote in the legislature did not meet the 2/3 requirement of the Montana Constitution. This fact should be an absolute embarrassment to Tim Fox, Steve Bullock, legislative service attorneys, and Steve Fitzpatrick, all attorneys who assured legislators that they reviewed the compact language and a 2/3 vote was not required. That the Montana legislature voted against the Montana Constitution, violating their oath of office, should be a reason to not re-elect anyone who voted for the CSKT Compact.
While a reasonable person would expect that this would automatically send the compact back to the legislature, the rules of the WATER COMPACT TWILIGHT ZONE kicked in. Instead of granting the request of the FJBC to void the vote–which is again, legal precedent in the state of Montana, Judge Manley decided it was more expedient to allow the legislature’s “mistake” to be fixed with a simple rewrite of the law. This reeks of political expediency as a component of his decision, a decision that is supposed to only be rooted in the constitution, the law, and the separation of powers. Judges cannot make an unconstitutional vote “constitutional” from the bench. Remember that the issue and question raised was the vote itself, nothing else.
According to Montana’s Constitution and the separation of powers, any “fixing” of the bill would have to be done by the Montana legislature. Politically, however, you can “rest” assured that the state and tribe are working very hard on the most efficient means to accomplish that objective, and it likely will be done as quietly as is possible, without transparency, and without the people or legislature of Montana having any say.
As expected, no specifics concerning a legal strategy for the appeal were discussed at the meeting. We will share any forthcoming documents concerning this issue as soon as they become available.