©2017 Concerned Citizens of Western Montana
Under Montana law, the proper remedy is to declare SB 262 void in its entirety. Marshall v. State ex. rel Cooney 1.999 MT 33 293 Mont. 274 975 P.2d 325 (p. 29 FJBC brief)
We reported on the mixed decision rendered by Judge Manley in the FJBC v. Montana lawsuit in July 2016 regarding the constitutionality of the vote on SB 262, the CSKT Compact. That mixed decision has been appealed to the Montana Supreme Court, and you can read the opening brief here.
On the one hand, Judge Manley ruled that the legislature’s vote was unconstitutional because of Compact’s grant of immunity to the state for damages, costs, and attorney’s fees, a clear victory for the FJBC. On the other hand, he
legislated “ruled” that the severance clause in the compact-created Unitary Management Ordinance (UMO, or Law of Administration) allowed him to sever the immunity language and “rule” that the “Compact still stands”.
The FJBC case is narrow for a reason—to address a limited state issue on which there is clear evidence of violation of the Constitution. It really had nothing to do with the CSKT but the Tribes’ intervention–designed to muddy the waters–dragged the UMO into the case.
The Tribes’ intervention may have been a strategic error for the Tribes and State as the legal arguments on both sides exposed the unworkable, unlawful UMO where all citizens are deprived of their due process and other rights guaranteed by the constitution. The Court was forced to note that even if the immunity language was severed, it would not cure the defect in the Compact.
A helpful analysis contained in the FJBC brief notes the following:
- The Compact in which the immunity clause is found does not have a severability clause.
- The Compact creates the Unitary Management Ordinance (UMO), which does not go into effect until after the Congress and Tribe have ratified the Compact.
- The UMO also grants immunity to the state and its employees but, in contrast to the Compact, has a severability clause which states that within the UMO, clauses found to be unconstitutional could be severed and not effect the UMO.
- The legislature’s clear intent was to give the state immunity from suit given its refusal to alter the language of the Compact when given an opportunity.
Thus the Compact’s immunity language, which was the major subject of the initial complaint, is not buffered by an immunity clause. As the brief noted in the beginning of this post, the entire Compact should be ruled void.
Multiple Outcomes Possible
Who would have thought that the lower court would “split the baby” and rule for both sides in what appears to be a contradictory ruling?
What we do know are the facts of the case, the Montana Constitution, and Montana case law on point to this issue of a legislature’s vote. Perhaps there will be a ruling in the first quarter of 2017.
Tester’s bill 3013 is dead in the water and the compact, even if the court legislates from the bench, is not the same compact as was “passed” in the legislature. Is it a legitimate compact amenable to consideration by congress? There are serious doubts.
Remember also Tester’s bill adds considerably more damaging provisions to the compact, and another billion to the price tag. His bill will have to be reintroduced but we’re not sure if it will survive that giant sucking sound of draining the swamp.