Montana Supreme Court: Regents can set gun policy on state’s campuses

State constitution clearly defines powers of legislature, regents

By: - June 29, 2022 4:14 pm

Guns and laws (Photo illustration by Darrell Ehrlick of the Daily Montanan)

The Montana Board of Regents has full authority to oversee the Montana University System, and a bill that tried to take away its power to restrict firearms on campus is unconstitutional where it applies to the regents, according to a unanimous decision Wednesday from the Montana Supreme Court.

“The board, not the Legislature, is constitutionally vested with full authority to determine the priorities of the MUS,” said the opinion written by Justice Laurie McKinnon. “HB 102 sought to undermine this constitutional authority and thus cannot be applied to the board and MUS properties.”

Clerk of Court Bowen Greenwood said the State of Montana may file a petition for a rehearing with the Montana Supreme Court within 14 days. The state, through the Attorney General’s Office, also may file an appeal with the U.S. Supreme Court.

Approved during the 2021 Montana Legislature, House Bill 102 allowed concealed carry anywhere in Montana except for specific locations set by the Montana Legislature, the opinion said.

Montana Constitution Article X, Sect. 9(2)(a)

“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.”

A Board of Regents policy has limited firearms on campus since at least 2012, the opinion said, but a provision in the bill sought to prohibit the Board’s authority to do so. It eliminated the board policy, which generally allows only law enforcement and security to carry firearms on campus.

It also extended open and concealed carry of firearms to campuses, and it created “a cause of action” for any government entity depriving anyone of the rights to carry firearms set in the bill, the opinion said.

A couple of other similar bills had died in the past in Montana, at least once by veto from a Democratic governor. Then in 2020, Republicans won the governor’s office.

In 2021, a Republican-majority Legislature quickly ushered HB 102 through both chambers, arguing Montanans have a sacred and constitutionally protected right to defend themselves, and the right shouldn’t vanish on college campuses. On Feb. 18, partway through the legislative session, Gov. Greg Gianforte held a signing ceremony for the bill.

The Board of Regents challenged the law in May 2021.

In late 2021, a Lewis and Clark County Court judge issued a permanent injunction on the parts of the bill that violated the regent’s constitutional authority. Wednesday, six justices and one judge sitting in for a justice affirmed the lower court’s decision.

The opinion said clearly, the 1972 Constitutional Convention intended to place the responsibility of overseeing campuses in the hands of the Board of Regents, and it also said the board cannot oversee students’ education without also ensuring their safety.

Additionally, the opinion said part of the State of Montana’s argument that other laws governing campuses are evidence the Legislature may regulate the university were “attempts to misdirect from the issue at hand — whether the Legislature may infringe upon the board’s constitutional authority.”

But the opinion said the Board of Regents has broad powers. Quoting from another decision, it said implied in them is “‘the power to do all things necessary and proper to the exercise of its general powers.’

“ … Indeed, the Board ‘has not only the power, but also the constitutional authority and statutory duty to ensure the health and stability of the MUS,’” the ruling said.

The intent of the Montana Constitutional Framers controls the court’s interpretation of the constitutional provision, the opinion said. And it said their intention is clear from the plain language they used and from the debate they held during the Constitutional Convention.

For one thing, they removed language from the 1889 constitution that subjected the board’s powers to legislative control, the opinion said, although it remains subject to some legislative powers, such as appropriation and auditing.

“The debate reveals the framers intended to place the MUS outside the reach of political changes of fortune and instead in the hands of a board which remained directly responsible and accountable to Montanans,” the opinion said. “Indeed, the framers recognized the importance of independent and unfettered academic freedom.”

The opinion also quoted from a transcript of a portion of the constitutional convention: “If a board is created for higher education and given the responsibility for education but not the authority to carry out such responsibility, how can they be held accountable to the people?

“If the real authority for carrying out the policies of higher education is dispersed among the bureaucratic political frameworks of other agencies, who then is accountable to the public? A healthy post-secondary educational system must have freedom from political changes of fortune, while still maintaining its responsibility and accountability to the state.”

The opinion noted the constitution doesn’t mention the regents where it imparts legislative power, along with corresponding limitations, and it doesn’t mention the Legislature where it entrusts the regents with governance of the university system.

“The board and the Legislature derive their respective power from the same authority — the Montana Constitution,” the opinion said. “The Constitution defines the powers of each and imposes limitations upon those powers. Absent language to the contrary, a direct power conferred upon one necessarily excludes the existence of such power in the other.”

The Board of Regents policy that governs firearms on campus reflects its judgment on an issue “undoubtedly within the scope of its constitutional authority,” the opinion said. And it said the Board has determined the presence of firearms on campuses undermines a safe educational environment, and it has the right to do so.

“It is particularly germane and necessary to the regents’ constitutional authority that it can manage MUS campuses by implementing policies it believes will minimize the loss of life and thereby strengthen its educational environment,” the opinion said.

It also noted that Montana has experienced firearm homicides on campus, pointing to the killing of two students at Montana State University in Bozeman in 1990, and that the court has recognized that a college could “breach its duty to provide a reasonably secure and safe place to work.”

“We note that Board Policy 1006 (regulating firearms) recognizes that Montana is not immune from the catastrophic loss that follows the use of firearms on school campuses,” the opinion said.

The opinion said the position does not elevate the regents to a fourth branch of government, as the state had argued. Rather, it said that where legislative action infringes on constitutionally granted powers of the board, legislative power must yield.

The Attorney General’s Office had not responded Wednesday to a question about whether it planned to request a rehearing with the state or appeal with the U.S. Supreme Court at the time this story posted.

District Judge John Parker sat in place of Justice Ingrid Gustafson, who recused herself.

Bill sponsor criticizes opinion

Rep. Seth Berglee, R-Joliet, sponsored House Bill 102, and he shared the following statement :

“This is a dangerous, slippery slope decision from the Montana Supreme Court. The justices have decided that a group of unelected bureaucrats can use their own judgement to determine the scope of your constitutional rights on college campuses, all without oversight by the people or their elected representatives.
Our constitution states that keeping or bearing arms “shall not be called into question.” If the Board of Regents can restrict this right, what’s to stop them from restricting free speech, due process, voting, or executing warrantless searches and seizures on university property? That unelected Board of Regents members can unilaterally limit constitutional rights should concern all Montanans. This is the most pro-government, anti-freedom ruling I’ve seen from the Montana Supreme Court in a long time.

Montana University System thanks court

Helen Thigpen, deputy commissioner and government relations and public affairs for the MUS, said the following in a statement:

The MUS appreciates the clarity provided by the Montana Supreme Court. From the outset, the Board of Regents sought judicial review of HB 102 to determine the appropriate entity for setting policy for the state’s public colleges and universities. The Board of Regents values its strong partnership with the Legislature and will continue to work on shared goals and priorities to strengthen the state’s economy and provide world-class educational opportunities to Montanans. 

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.