Attorney Jim Brown’s “The rest of the story on I-166” isn’t quite the rest of the story. Here are the facts:

I was the lone dissenter from the Montana Supreme Court’s decision on the pre-election challenge to Initiative 166. In terms of legal analysis, I stand by what I said. I laid out exhaustively why I believed that I-166 was constitutionally invalid and should not be placed on the ballot. Although the court had the ability to rule as I suggested it should, it chose not to do so. The court denied the challenge and, instead, allowed the measure to be voted upon by the people.

Here’s the link to the opinion, and you can read for yourself how the court ruled, what I argued, and come to your own conclusions: http://law.justia.com/cases/montana/supreme-court/2012/op-12-0439.html.

The Supreme Court’s decision on I-166 has never been over-ruled. After the voters passed the initiative, the First Judicial District Court did rule in Rickert v. McCulloch that part of I-166 was unconstitutional—largely on the basis of my dissent. The district court upheld other parts of the initiative. But, as Brown points out, the district court’s decision was not appealed to the Supreme Court. Accordingly, we have no idea how that court would rule.

It has been a longstanding rule in Montana that, although the process of the district courts extends to all parts of the state, the exercise of the power of such courts is limited to the boundaries of the district. Moreover, district court decisions do not constitute binding precedent on the Supreme Court. In short, the Rickert decision established no binding statewide precedent. Only a decision of the Supreme Court can create state law. Thus, while I-166 has been partially stuck down in one judicial district, it remains in full force and effect in the rest of the judicial districts of the state.

Montanans overwhelmingly adopted I-166 by a margin of nearly 75 percent. (See: http://www.standwithmontanans.org/montanans_approve_i_166.)

I-166 is codified at §§ 13-35-501, et. seq. of the Montana Code. Section 13-35-504, MCA charges Montana’s congressional delegation with, among other things, proposing a joint resolution to amend the federal Constitution to overturn the Citizens United decision, to establish that corporations are not human beings with rights and, effectively, to get dark, mega money out of politics. Here’s the link: http://codes.findlaw.com/mt/title-13-elections/mt-code-ann-sect-13-35-504.html.

Even if (as my dissent argued) Montana’s congressional delegation cannot be “compelled” to comply with Section 13-35-504 MCA, there is absolutely nothing prohibiting each and every member of the delegation from doing what 75 percent of Montanans clearly and unequivocally expressed—offer a constitutional amendment to overturn the infamous Citizens United decision and the effects of the dark, mega money which it ushered into American politics. Indeed, one would think that when 75 percent of Montanans speak as one, our congressional delegation would take notice of and heed their instruction.

To date, only one member of Montana’s congressional delegation has followed the direction given by this supermajority of Montana voters: U.S. Sen. Jon Tester was one of the first members of congress to offer the constitutional amendment that Montanans clearly wanted. Here’s the link. https://www.tester.senate.gov/?p=press_release&id=2970.

To my knowledge, U.S. Sen. Steve Daines has not offered, nor did Ryan Zinke while he was a member of Congress offer, the amendment that Montanans want. (And, voters should now be questioning Greg Gianforte’s, Rob Quist’s and Mark Wicks’ position on this matter before the special election next month).

Finally, as far as I’m concerned the matter of I-166 is closed. Montana voters overwhelmingly adopted the Initiative, and its language has not been rejected, overruled or modified on a statewide basis by the Montana Supreme Court—my dissent, one district court’s decision and Brown’s disagreement to the contrary notwithstanding.

Moreover, I wholeheartedly support the adoption of a 28th Amendment to the federal Constitution to undo the damage that Citizens United has caused to our political system. Corporations must not have the same rights as natural human beings. The votes of people must not be diluted and devalued by those who can dominate political discourse with their money.

And that is the rest of story.

Jim Nelson is a retired Montana Supreme Court justice, and writes from Helena. 

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