Explanation of Intent - HB 197
Constitutional Referendum in re the Powers of the
Board of Regents
by Gary Marbut
Introduction
Gary Marbut is president of the Montana
Shooting Sports Association, the primary political advocate
for Montana firearm owners. Marbut is also the author of Gun Laws of
Montana, a trade paperback now in its Fifth Printing and the
accepted authority on its subject matter. Even more
important to this Explanation of Intent, Marbut created the
specific language to be amended into Article X with this
constitutional referendum. Therefore, Marbut can best
explain the intent for this proposed language.
Purpose
The purpose of this Explanation is that it will be introduced in
committee testimony concerning the subject constitutional
referendum, and will become a part of the legislative history of
that measure. Any future court or researcher seeking to
learn about the intent for this measure will have access to this
Explanation.
Background
Article
X, Section 9.(2)(a) says "The government and control of the
Montana university system is vested in a board of regents of
higher education which shall have full power, responsibility, and
authority to supervise, coordinate, manage and control the Montana
university system and shall supervise and coordinate other public
educational institutions assigned by law." There has long
been disagreement in Montana about the extent to which this
language empowers the Board of Regents (BoR) to act and to enforce
its policies.
The 2021 session of the Montana Legislature passed House
Bill 102 (HB 102), a measure intended to eliminate dangerous
"gun free zones" of various types in Montana, places where
citizens are denied their right to keep or bear arms by government
edict. This bill sought to innervate and apply Article
II, Section 12 of the Montana Constitution, which says,
"Right to bear arms. The right of any person to keep or bear arms
in defense of his own home, person, and property, or in aid of the
civil power when thereto legally summoned, shall not be called in
question, but nothing herein contained shall be held to permit the
carrying of concealed weapons."
This reservation of right was adopted by the people of Montana and
memorialized specifically as a bar to action by government actors
and government entities.
HB 102 included provisions designed to allow possession of
firearms on campuses of the Montana University System (MUS),
overriding a broad firearms prohibition and alleged "gun free
zone" long asserted by the BoR, Policy 1006. The BoR filed a
lawsuit, Regents v. Montana, seeking to disallow the
campus carry feature of HB 102, based on the powers delegated to
the BoR in Article II, Section 9(2)(a).
Early in the process, the District Court issued an Order declaring
that, in this case about campus firearms, the Court would not
tolerate any arguments about the right to keep or bear arms
preserved to the people in the Montana Constitution or the right
to keep and bear arms preserved to the people in the U.S.
Constitution.
From the District Court's decision and Order dated July 16, 2021,
Page 14, item # 6.
“Argument seeking to redefine or enlarge the issues of this
declaratory relief proceeding, arguing the breadth of federal or
state firearm rights, or arguing the validity of Regents Policy
1006 will not be considered or tolerated by this Court;”
Further, HB 102 contained Section 5, which read "Section 5.
Prohibition on infringement of constitutional rights. The board of
regents and all university system employees subject to the
authority of the board of regents are prohibited from enforcing or
coercing compliance with any rule or regulation that diminishes or
restricts the rights of the people to keep or bear arms as
reserved to them in Article II of the Montana constitution,
especially those rights reserved in Article II, sections 4 through
12, notwithstanding any authority of the board of regents under
Article X, section 9(2)(a), of the Montana constitution."
Article
II, Sections 4 through 12, include the following:
4. Individual dignity
5. Freedom of religion
6. Freedom of assembly
7. Freedom of speech, expression, and press
8. Right of participation
9. Right to know
10. Right of privacy
11. Searches and seizures
12. Right to bear arms
In its conclusion, the District Court held that the campus carry
features of HB 102 were unconstitutional because they
impermissibly infringed on the BoR's powers under Article X,
Section 9(2)(a). The Court ALSO held that Section 5 of HB
102 was unconstitutional for the same reason. Upon appeal,
the Montana Supreme Court agreed with and affirmed the District
Court.
This left the BoR free to discriminate against "any person in the
exercise of his civil or political rights on account of race,
color, sex, culture, social origin or condition, or political or
religious ideas." (Article
II Section 4.)
This left the BoR free to make law or policy respecting an
establishment of religion or prohibiting the free exercise
thereof. (Article
II Section 5.)
This authorized the BoR to prohibit people from peaceably
assembling, petitioning for redress or peaceably protesting
governmental action. (Article
II Section 6.)
This allowed the BoR unfettered ability to deny freedoms of
speech, expression, and press in any or all ways. (Article
II Section 7.)
This allowed the BoR to ignore the potentially-troublesome right
of participation, that "The public has the right to expect
governmental agencies to afford such reasonable opportunity for
citizen participation in the operation of the agencies prior to
the final decision as may be provided by law." (Article
II Section 8.)
This also allowed the BoR to disregard a potential problem for it
and MUS campuses, the sometimes awkward right of the people to
know, that "No person shall be deprived of the right to examine
documents or to observe the deliberations of all public bodies or
agencies of state government and its subdivisions, except in cases
in which the demand of individual privacy clearly exceeds the
merits of public disclosure." (Article
II Section 9.)
This court decision also freed the BoR from any obligation to
respect the right of privacy for anyone it deems under its broad
umbrella. (Article
II Section 10.)
This judicial outcome allows the BoR to ignore all restraints on
search and seizure, including the need for pesky judicial warrants
before searching and seizing. (Article
II Section 11.)
Finally, the resolution of this case allows the BoR to totally
override the BoR-disfavored right to keep or bear arms that the
people have constitutionally reserved to themselves specifically
from interference by such government entities as the BoR. (Article
II Section 12.)
It is difficult to accept that all of this is what the adopters
intended upon adopting Article X, Section 9(2)(a). All
branches of government are subject to the restraints imposed by
the people in Article II, the Declaration of Rights, including the
executive, the legislative, and the judicial. Even
subdivisions of state government are subject to these restraints,
including counties, cities, and any special districts.
The decision by the District Court, and its affirmation by the
Montana Supreme Court, elevates the BoR as a new and superior
branch of government, superior to the Legislature, to the
executive, and arguably even to the judicial branch. If the
BoR is superior to the Constitution and to the legislative and
executive branches, it must arguably also be superior to the
judicial branch. This decision creates a "constitution-free"
zone anywhere the BoR chooses to assert authority. This is
highly irregular, inappropriate, and inconsistent with our form of
government. It may also run afoul of the guarantee in the
U.S. Constitution that every state have a "republican form of
government." (Article IV, Section 4, U.S. Const.) The
status quo interpretation of limitless BoR powers demands
correction. The civil correction is to amend the Montana
Constitution to clarify that whatever powers are delegated to the
BoR in Article X, Section 9(2)(a), that delegation does not
include the power to ignore the rest of the Constitution, as the
courts determined in Regents v. Montana. That is the
reason for this constitutional referendum.
Intent for Effect of the Constitutional Referendum
This constitutional referendum proposes that a new subsection be
added to Article X, Section 9(2), to wit:
"(d) The board may not exercise any power that conflicts
with any other provision of this constitution or that conflicts
with state laws."
So, what does this language actually mean and what is it intended
to accomplish?
The first phrase, "The board may not exercise any power",
clarifies that there are limits to the BoR's power, unlike the net
holding of the courts in Regents v. Montana. As we
have seen above, the net result of court decisions in Regents
v. Montana was to effectively cast the BoR as some sort of
super entity unaffected by the limits on power that apply to all
other governmental entities in Montana. Operating under this
phrase, if approved, the BoR, whatever its powers, would not be
some super entity with limitless powers unmodified by legal
constraints. It would be required to submit to the
restraints imposed on all governmental entities and actors in all
parts of the Constitution outside of Article X, Section 9(2)(a).
It is worth noting that "may not" is the strongest form of
prohibition because it removes permission entirely. This is
intended. Too often drafters of constitutional language
choose "shall not" as the most inflexible prohibition. The
problem is that when "shall" is coupled with a negative, that
coupling has an odd semantic effect. "Shall" means "is
required to." When coupled with a negative, as in "shall
not," the meaning becomes "is not required to," an absence of
compulsion but not a prohibition. This is not the effect
intended in this instance. Rather, the effect intended is an
outright prohibition on exercise of the described authority, an
overt withholding of permission to act. "May not" then
becomes the strongest, most inflexible form of prohibition, most
effective and least likely to be misunderstood or misapplied.
Then, the carefully chosen language delineates exactly what
conduct is prohibited. That prohibited conduct is about
things that are in conflict with any part of the Constitution
outside of Article X, Section 9., and things that are in conflict
with duly enacted state policy expressed as laws, more
specifically as statutes passed by the Legislature and signed or
allowed to become effective by the Governor, or statutes enacted
by the people via initiative or referendum.
About constitutional conflicts, this will clarify that the
restraints on all governmental entities that have been placed in
the Constitution by the people will apply to the BoR, just as
those restraints apply to all other governmental entities, from
the Governor all the way down to special districts. Under
application of this language, the BoR would no longer have
unfettered authority to violate citizens' freedom of speech,
religion, and much else. The BoR would be powerless to
discriminate based on race, religion, and more. The BoR
would no longer have a special entitlement to pollute the
environment. This prohibition would require the BoR to
behave like all other governmental entities, subservient to the
will of the people who empowered the BoR when the people adopted
the constitutional language at Article X, Section 9.
About the prohibition on exercise of BoR power in conflict with
"state laws," this prohibition also is intended to hold the BoR to
the same standard to which all other governmental entities are
held. Under this prohibition, buildings on MUS campuses
would have to comply with life safety codes. For example, a
lecture hall could be required to have enough exits for effective
evacuation in the event of emergency, and the required exit doors
could not be chained shut. MUS campuses could not
discriminate based on race or religion, in hiring or
admissions. Contracts entered into by campuses of the MUS
for employment, construction, and more would have to be
honored. The BoR could not adopt criminal laws and enforce
those without juries but with imprisonment, public flogging, or
execution.
The examples are legion. The BoR could not ignore Montana's
open meeting law. The BoR would be subject to Montana's
Administrative Procedures Act, public records requirements, state
audits, state employment requirements, regulation of alcohol,
tobacco, and marijuana, requirements for deposits and investments,
state requirements for disbursement and expenditure of public
funds, public retirement system laws, criminal laws, and much
more. (Note: See the amicus
brief submitted by Rep. Seth Berglee, et. al., to the
Montana Supreme Court in Regents v. Montana.) All of
this would change from the status quo following the Regents v.
Montana decision whereby the BoR is deemed to be exempt from
state laws because of the power allegedly given the BoR in Article
X, Section 9(2)(a).
Conclusion
Should this constitutional referendum be approved by the
Legislature and subsequently approved by the people of Montana at
ballot, and should any question arise about just why this effort
was undertaken and what it was intended to accomplish, this
writing should answer any such questions about the reason done and
the result intended.
Gary Marbut, citizen, elector, and president of the
Montana Shooting Sports Association