Judge Manley is correct on CSKT Compact

by Dr. Ed Berry

Following the ratification of the CSKT Water Compact by the 2015 Montana legislature, the Flathead Joint Board of Control filed a lawsuit over two immunity clauses in the Compact. The FJBC claimed the clauses created a new sovereign immunity for the state and its agencies and employees.

The FJBC also claimed these immunity clauses should have required a two-thirds majority vote of the Montana legislature. Since the legislature passed the Compact with only a majority vote, the FJBC claimed the passage of the Compact was invalid.

Judge Jim Manley ruled the FJBC was correct on one of its stated immunity clauses. On this clause Manley ruled the unconstitutional wording should be stricken from the Compact text.

Manley ruled the Compact contains language that allows removal of parts of the Compact without invalidating the Compact. Therefore, his removal of the unconstitutional words does not invalidate the Compact.

Compact opponents are not happy. They claim because the court later found a small part of the Compact unconstitutional, therefore the Compact required a two-thirds vote to pass. If opponents wish, they can take their case to the Montana Supreme Court, where they will lose very quickly.

Truth be told, Compact opponents are not interested in fixing the Compact. They seek any reason they can to invalidate the Compact.

Here’s why Compact opponents are wrong again.

First, the legislature did not pass the Compact unconstitutionally because the Compact contains wording that allows courts to delete unconstitutional wording without invalidating the rest of the Compact.

Second, the legislature does not have the authority to make legal decisions on negotiated agreements like the Compact. It’s above their pay grade. Only the courts have the authority to make legal decisions.

Third, the legislature is supposed to accept the legal advice of state attorneys and the Attorney General. The courts can later overrule such legal advice but the legislature does not have the legal expertise or authority to do so.

The state attorneys advised the legislature that the Compact wording was constitutional. Therefore, legislators who voted against the Compact based upon their personal legal interpretations that conflicted with the advice of state attorneys were out of order.

Legislators do not have the right to play attorney in the legislature even if they are attorneys. As all attorneys should know, the court, not the legislature, is the place to resolve legal issues.

The legislature passed the Compact subject to it being constitutional and subject to allowing the courts to remove any parts of it a court finds unconstitutional. On this basis, the Compact required only a majority vote of the legislature for its passage.

Indeed, Rep. Jeff Essmann proposed an amendment to fix the part of the Compact that Judge Manley found unconstitutional. Essmann was correct in his recognition of the legal problem. However, legislators were also correct to reject his proposed amendment because the legislature is not the proper place to make changes to the Compact.

Some legislators, most notably House Speaker Keith Regier, claimed they did not have time to read the Compact. Some used this as their invalid excuse to vote against the Compact. It should be obvious that legislators who claim they did not have time to read the Compact do not have the legal qualifications to modify the Compact.

Many farmers, ranchers, water managers and others testified to the benefits of the Compact. Therefore, the legislators needed to consider the benefits to the Compact to those people. The legislators job was to best answer this key question to the best of their ability:

Will Montana be better served with or without the Compact?

Some legislators thought if they found any seeming imperfection in the Compact this gave them the right to vote against the Compact. Such reasoning is invalid. With or without imperfections, the question remains:

Will Montana be better served with or without the Compact?

If your horse is not perfect, do you shoot your horse? Of course not.

The Compact presented a fork in the road for the legislators that not all legislators recognized.

  • If they approved the Compact, the courts can later decide legal issues. If the Compact survives the courts then it can serve the people of Montana.
  • If they rejected the Compact, the courts could never decide whether the legislators’ legal issues are valid or invalid. If the legislators’ reasons to reject the Compact were invalid (as they are in this case) then they would have immorally deprived the people of Montana of the benefits of the Compact.

In summary, the job of the legislature was to judge whether Montana would be best served with or without the Compact.

The job of the legislature was not to reject the Compact for perceived legal imperfections. Legislators who voted that way were out of order.

The Compact required only a majority vote to pass the legislature because the Compact allows courts to fix any part the courts find unconstitutional.

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