Professor Rob Natelson’s critique and criticism of the Montana Supreme Court’s decision striking down CI-116, Marsy’s Law, on November 1, 2017, is simply wrong-headed. The Court, very conservatively and very narrowly correctly applied Montana Constitution’s Article XIV, Section 11, which clearly provides that “if more than one amendment is submitted [to the Constitution] at the same election, each shall be so prepared and distinguished that it can be voted upon separately.” (Italics added).
The Court did not rule that Marsy’s Law was a good idea or a bad idea. Rather, the Constitution mandates in no uncertain terms how the Constitution can be amended, and requiring voters to decide on each amendment separately is part of that process. The Court held that CI-116 — by including a number of amendments to the Constitution within the Marsy’s Law initiative — violated the process of amendment. Nothing more; nothing less.
With all of his purported expertise in constitutional law, one would think that Professor Natelson would have understood Article XIV, Section 11, by now inasmuch as he was the driving force behind CI-75 which was declared unconstitutional a number of years ago for violating the same provision.
However, rather than demonizing the Montana Supreme Court for doing its job and protecting the integrity of Montana’s Constitutional amendment process, it would be more intellectually honest if Professor Natelson had simply stepped down from his political soap box and correctly described the Court’s actual decision.
The Court very carefully analyzed the language of CI-116 and the applicable Constitutional law. After doing so, the Court held that the initiative, besides enacting the various victim’s rights under new Section 36 to Article II, of the Constitution, also amended Article II, Section 17, (right to due process); Article VII, Section (2)(3), (power of Supreme Court to regulate attorney conduct); Article II, Section 21, (right to bail); Article II, Section 20, (criminal procedure rules); Article II, Section 24, (rights of accused persons); Article II, Section 9, (public’s right to know); and Article II, Section 10, (right of individual privacy).
But then, don’t take my word for it — or his, for that matter. Here is the link to the decision. https://www.leagle.com/decision/inmtco20171101531. Read it yourself, it is very clear and understandable.
Finally, if Professor Natelson wants to pontificate against someone or some organization for various citizens initiatives that are declared unconstitutional or otherwise fail, he ought to take on the politicians, special interests, think tanks and academics that don’t know squat about Montana law or Montana’s Constitution, but, nonetheless, feel qualified foist upon voters feel-good, discriminatory, partisan-biased or similar proposals.
The moral to the story here is simple. If you want to amend the Constitution, follow the process that We the People enacted when we adopted the Constitution. And, hire a qualified Montana lawyer to assist you in getting it right.
Jim Nelson of Helena is a retired Montana Supreme Court Justice.