Rob Natelson: The Montana Supreme Court Ballot Issue Jurisprudence: “Liberal, Sí — Conservative, No!”

Many Montanans have complained of the state’s supreme court’s leftward bias. But law is such a specialized area, that this bias can be hard to illustrate in ways non-lawyers can understand.

But everyone can see it in how the Montana justices handle ballot issues.

In Montana, the legislature and citizen petitioners enjoy the right to place initiatives and referenda on the ballot. Opponents also are free to challenge those measures in court.

The state supreme court has heard many ballot-issue cases. Some of the cases involve measures that are truly non-partisan, or can’t be classified as “liberal” or “conservative.” But many others do involve measures that can be classified that way.

 In my MPI study of the court issued late last year, I identified 18 cases in which the ballot measure under attack could be classified as either “conservative” (tending to reduce the power of government) or “liberal” (tending to increase the power of government). In 12 of the 18 cases, the measures challenged were “conservative.” In six, they were “liberal.”

The results, tabulated in a chart on page 18 of the study, show a dramatic difference in how the court treats conservative and liberal ballot issues.  Of the 12 conservative measures, the court upheld only two and struck down 10.  But of the six liberal measures, the court upheld every one! Since 1996, moreover, the pattern was perfect: every challenged conservative measure was struck down, every liberal measure upheld.

There were some particularly striking cases. For example, in one dispute the court voided a proposed conservative measure because it did not have legal force—it was an expression of popular opinion: what the court called a mere “resolution.” Yet in a later case, the court upheld a liberal initiative (I-166, which I discussed in an earlier post), although it, too, was a mere resolution.

Now, what made that pair of cases particularly perverse is that, under the law, they should have been decided precisely the opposite way. This is because the conservative measure was a proposed constitutional amendment, and the state constitution contains no rules against “resolutions” being part of the constitution. (In fact, resolutions or “recitals” are common in state and federal constitutions.) On the other hand, the liberal measure was a statutory initiative, and the state constitution (Article III, Section 4) specifically requires that statutory initiatives be genuine “laws” rather than mere expressions of opinion.

So the court struck down a conservative measure that was stronger on the law, and upheld a liberal measure that was weaker!

You can read the entire study here.

Rob Natelson: MT Supreme Court’s “History” in Campaign Finance Case Was Really Bad

The Montana Supreme Court won praise for its use of history in the corporate finance case, Western Tradition Partnership v. Attorney General, a decision subsequently reversed by the U.S. Supreme Court.

But the Montana court’s “history” was weak, to say the least. One writer called it “junk history” here.

Last year, I did an extensive library fact-check of the Montana court’s claims. I summarized some (although not all) of my conclusions in a published paper.

Here’s a quick summary of my principal findings:

First, while claiming that corporate campaign corruption was once widespread in Montana, the justices cited only two events, both over 100 years old. Both were irrelevant to the claim that Montana has a “unique” history of corporate electoral corruption. One was the alleged bribery of a pair of district court judges, which had absolutely nothing to do with campaigns or elections. The incident was never proved, and it’s not even clear that corporate money was involved.

The other was a candidate’s bribery of state legislators in a 1899 U.S. Senate election. The U.S. Senate committee report on the incident described only bribery by individuals, not by corporations. The episode did not involve independent expenditures and was not unique to Montana, since similar episodes throughout the country soon led to adoption of the Seventeenth Amendment.

Second: The Montana Supreme Court failed to cite a single dispassionate historian for its conclusions. In investigating the backgrounds of the writers it did cite, I found that all but one were personally involved in state government as employees, politicians, family members of politicians, political activists, lobbyists, or several of the above. All of those had personal interests in the subject and apparent reasons to dislike the perceived conservatism of business corporations. All wrote either from either a “progressive” or (in one case, from a socialist) point of view. The one writer who had not been involved personally was a “progressive” journalist, not a historian, and had no pretense of objectivity.

Third: The court relied on books that failed to follow normal historical practice in citing sources. Their footnotes ranged from few to almost non-existent. The writer relied on most heavily was K. Ross Toole, whose relevant chapters were largely based (often word-for-word) on his Ph.D. thesis. That Ph.D. thesis was essentially a youthful assault on the Anaconda Company—a company Toole was convinced was an institution of conservative evil.

I compared the relevant footnotes in Toole’s thesis with the actual newspaper articles he cited. I found that nearly two thirds of Toole’s notes were defective. The articles he cited often did not support the claims in the text.

Fourth: The Montana Supreme Court claimed that after the Copper Wars at the turn of the last century the Anaconda Company absolutely dominated the state. But the court’s own sources are contradictory on that point. For example, one of those sources (a book by Malone & Roeder) claims absolute Anaconda domination on one page and then celebrates numerous state “progressive” victories over Anaconda a few pages later. The book never explains how the “progressives” could have been so successful if Anaconda had such a lock on the state.

(A more balanced view is that while Anaconda influence was considerable in Montana for much of the 20th century, Anaconda lost many battles as well, as the election returns demonstrate.)

Finally: In upholding the state law censoring corporate speech, the Montana Supreme Court claimed that the law was enacted to end “This naked corporate manipulation of the very government. . .” But there is no way the court could have known this. The books it cited provided little information on the law or its reasons for passage. According to contemporaneous newspaper articles, the text as passed (possibly now lost) was quite different from the version at issue in the case. The court cited no campaign materials, and the newspaper reports (which the court didn’t cite either) are uninformative on the reasons for the measure.

The actual effect of the law may have been to increase Anaconda Company influence, since it curbed the campaigning of other corporations while leaving Anaconda-owned newspapers exempt.

It appears, in other words, that the Montana Supreme Court was guilty of what professional historians contemptuously call “law office legal history”— the selective use of isolated and questionable “facts” to promote a case.

Law-office history can make good reading, but never confuse it with real history.

Rob Natelson
* Senior Fellow in Constitutional Jurisprudence,
Independence Institute & Montana Policy Institute
* Professor of Law (ret.), The University of Montana
* biography & bibliography:

The Montana Supreme Court Versus the Rule of Law

By Robert G. Natelson, Senior Fellow in Constitutional Jurisprudence, Montana Policy Institute

Click here for full study. (PDF – 3.77MB)

Executive Summary

There is a consensus among researchers that adherence to the rule of law is crucial to vigorous economic growth. Montana’s economy has lagged the economy of most of the United States since the 1980s, and this MPI Study explains one reason why: The Montana Supreme Court, the final authority in the state on most legal questions, has not honored the rule of law. Its failure to do so has harmed wealth and job creation in Montana.

In this Study, Professor Rob Natelson, the Institute’s Senior Fellow in Constitutional Jurisprudence, first examines what it means to honor the rule of law. He identifies five components: clarity, stability, notice, fairness, and restraint. He then shows how the rule of law is important to a state’s economy. The American Founders understood this, and Professor Natelson cites provisions they inserted into the U.S. Constitution to protect the rule of law.

He then explains why the Montana Supreme Court is more influential within state boundaries than most tribunals of its kind, giving it a significant impact on the Montana economy.

The heart of the Study is its comparison of rule-of-law standards with the court’s actual practices. The comparison is based partly on previous scholarly research and partly on a new case-by-case analysis of some of the court’s most important opinions. Professor Natelson concludes that the court frequently diverges from rule of law standards, and that this conduct presents a serious barrier to prosperity in Montana.