Supporters, opponents of ‘gun bill’ both believe the law is on their side

Law will focus on how much authority do the Regents have on state college campuses

By: - February 4, 2021 11:21 am

As a controversial gun-rights bill makes it way through the Montana legislature, lawmakers report concern from a variety of constituents. House Bill 102, sponsored by Rep. Seth Berglee, R-Joliet, would make carrying concealed weapons legal in more places, including banks, bars and college campuses.

While Second Amendment proponents have hailed HB102, and other states have adopted similar measures, one particular aspect of the legislation has raised the eyebrows of opponents and even staff working for the Legislature: Concealed-carry of weapons on Montana’s public colleges and universities would be a significant change in policy. Moreover, that policy change would be mandated by lawmakers instead of the Board of Regents, which normally sets policy and regulations on campus.

The Montana Constitution says this about the Board: “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.”

Lawyers working for the Legislature have flagged HB102 as a problematic for that reason, potentially clashing with the constitution. 

For its part, the Montana Board of Regents adopted a policy concerning weapons on campus decades ago — long before this issue emerged. And the regents’ control of what happens on Montana’s colleges and universities is a well-litigated subject.

Here’s a look at the legal review by the Legislature’s lawyers, the current policy, and related case law. 

Legal note

During the legislative process, a team of lawyers working for the Legislature reviews each piece of legislation. If concerns or conflicts with any existing federal or state law arise, the team issues a legal note, an advisory opinion flagging the potential problem. This is done because many of the lawmakers are not lawyers and may not have expertise in case law.

A legal note attached to proposed legislation isn’t binding. That means that lawmakers are free to ignore it, or to make changes to bills based on the advice. And, lawyers would point out that legal concerns about the bill don’t necessarily mean a court would agree that a law is illegal.

However, the purpose is to make sure lawmakers understand the potential pitfalls of a bill. Fixing a bill before it becomes law also can avoid costly lawsuits in the future.

In the case of HB102, not only did attorneys Todd Evert and Julianne Burkhardt review the bill, the requester of the bill, presumably Berglee, responded to the legal reviewer comments.

The legal note attached to HB102 points out several sources for calling into question that constitutionality of the proposed legislation, namely the Montana Constitution and a key Supreme Court ruling, Regents vs. Judge in 1975 (which will be discussed later).

However, the requester responding to the note points out that while the Board of Regents is free to make policy and govern the campus, it is not free to ignore parts of the United States Constitution. Berglee said he believes the Second Amendment clearly gives the individual the right to carry firearms without interference virtually anywhere within the U.S.

“It is important to note that this language is silent, as is all of Article X, about any authority whatsoever for the board to amend, alter, abolish, suspend, ignore, or exempt itself from any other part of the Constitution,” the response said.

The response also gives several other examples of where the other jurisdictions don’t rule supremely. For example, Berglee’s response argues the university does not hold a jury trial for capital offenses, even if they happen on campus, and the Regents should not be able to dictate the Constitutionally-protected right, just like a jury trial.

“This is very similar to the relationship between the Constitution and local governments being enabled and controlled by state law. For example, a state law prohibiting the discharge of a firearm within city limits except in self-defense is not a restriction on cities,” the response said. “It is a restriction on individuals. Cities cannot claim, under Montana’s constitutional scheme, that this statute offends their constitutional prerogatives. This is in part because cities are given no authority to regulate rights except insofar as a properly justified statute may permit, and in part because this law regulates individuals, not cities.”

Policy

The Montana Board of Regents has had a policy in place in place for years regarding weapons on college or university campuses. In fact, the legal footnotes on the policy say that there’s been one form of this law in place since Jan. 16, 1975.

MUS Policy 1006 deals with security and law enforcement operations. It was updated last on May 25, 2012.

Currently, firearms on campus can only be carried by campus police or security officers who have gone through the Montana Law Enforcement Academy and passed the exam (or the equivalent of them in another state). The policy also allows for contracted security personnel to carry firearms.

“Each campus may establish regulations governing the transportation and storage of firearms on campus,” the policy reads.

Many of the Montana campuses have storage lockers, located at the university’s law enforcement headquarters to house weapons for students. For example, several campuses report gun safe lockers where firearms can be checked out or placed back, for example in the case of hunting.

Case law

Three important cases have established the Regents’ power to control virtually all aspects of the Montana University System. While none of these cases directly tackled firearms on campus, each determined the scope of the Regents’ power, especially within the state’s Constitution.

Name: The Duck Inn., Inc. vs. Montana State University – Northern
Year: 1997

Details: The Duck Inn., a facilities rental business in Havre sued Montana State University – Northern claiming the university had violated policy renting its space and facilities, competing against a private business.

While the court found that Northern did indeed directly compete with the private business, Duck Inn, “it was not clear that such a competition was prohibited by statute or the Montana Constitution.” The Montana State Supreme Court also found that the Regents had sole discretion in running various aspects of the university, even renting the facilities to public or private groups.

Duck Inn also claimed that using tax-supported facilities, like the university, was unconstitutional because those taxes should only be used for public purposes, not to compete with the private facility. The high court found that fees and costs that Northern took in by renting facilities actually lessened the taxpayer burden, though.

However, the lawsuit challenged whether the Regents had the authority to make policies that would allow the campuses to rent out the facilities in the first place. The 1997 court said, “(T)he regents have authority over the Montana university system which is independent of that delegated by the legislature…Indeed the regents are given ‘full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system.”

Name: Board of Regents of Higher Education vs. Thomas L. Judge, Governor and the Legislative Finance Committee
Year: 1975

Details: This particular case dealt with the conflict between the Legislature and the Regents, not so unlike the kind that House Bill 102 could create, if passed. The Board of Regents took the Legislature and the governor to court, suing them stop the Legislative Finance Committee from approving any budget amendments. Essentially, this case would have required the university system to get legislative approval of any changes to the budget. Montana’s Constitution allows lawmakers to set the amount of funding, but it cannot be conditioned. In other words, no strings attached.

The Regents fought the move, saying the Legislature didn’t have the right to mandate money be spent in certain ways, nor were the Regents beholden to the Legislature to have to get permission for budget changes.

In a lengthy discussion about state’s Constitution, the court held that when Montana first became a state in 1889, the original constitution had the university falling under the control of the state board of education. But in 1972, a new Constitution was approved and the power was placed in the Regents without the connection to the state board of education.

“The principle of regent independence was definitely intended by the drafters of the 1972 Montana Constitution,” the court concluded.

The high court also reasoned that if the lawmakers couldn’t condition money based on the Regents’ compliance, it certainly couldn’t try to control the university system in a line-by-line manner.

“The legislature cannot do indirectly through the means of line item appropriations and conditions what is impermissible for it to do directly,” said Justice Wesley Castles in the opinion he authored for the court. “Inherent in the constitutional provision granting the Regents their power is the realization that the Board of Regents is the competent body for determining priorities in higher education.”

Name: Martha Sheehy vs. The Commissioner of Political Practices
Year: 2020

Details: Regent Martha Sheehy of Billings objected to a finding by the Commissioner of Political Practices that she and the other Regents had violated the state’s ethics codes by discussing a statewide mill levy for higher education during a board meeting. The state’s high court and the district court found that she was not a state employee as a regent, but a “public employee” – a different classification and not subject to the commissioner’s sanctions.

However, during the discussion of the case, the state’s Supreme Court looked at the nature of the Regents and their place in the Montana Constitution. Justice Laurie McKinnon delivered a concurring opinion in which she sided with the majority, arguing the framers of the 1972 state Constitution intentionally give the Regents exclusive authority over campuses which can only in very limited cases be checked by outside agencies, including the Legislature. For example, the Regents could not declare that university employees were exempt from income tax just because they work for the university and the Regents govern the university.

“The 1972 constitutional convention debate on Article X, Section 9, reveals the delegates’ intention to place the Montana University System beyond the political influence of the legislature, entrusting it instead to a Board which should be directly responsible and answerable to the people,” McKinnon wrote last year.

The constitution notes and conversation were captured in her opinion: “Higher learning and research is a sensitive area which requires a particular kind of protection not matched in other administrative functions of the state.”

The state’s Supreme Court last year acknowledged there are limits to the Regents’ power. For example, they must comply with health laws, accounting standards and subject to other restrictions.

“The Board cannot abridge rights protected by the federal or state constitutions, and is subject to state legislation enforcing state-wide standards for public welfare, health and safety,” McKinnon wrote. “Constitutional provisions are conclusive upon the Legislature and prevent the enactment of any law which extinguishes or limits the powers conferred by the Constitution.”

When the court analyzed if the Commissioner of Political Practices could control Sheehy and her fellow Regents, it concluded the Regents were beyond the reach.

“(The Constitution) contains no provision allowing for another entity or power to control the Board. To the contrary, it reposes all powers in the Board,” the court ruled.

The Montana Supreme Court also waded into how rules get made on university campuses. A review of case law, the Constitution and transcripts showed that Regents are given their power by the state’s Constitution, not “statutory authority delegated by the Legislature.”

“Adopting rules for its own government or government of the MUS system is qualitatively different from adopting rules by a quasi-judicial board or board with rulemaking authority,” the court said in its decision.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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