A lawsuit concerning a bridge on a county road could lead to major impacts on Montana’s stream access law in a case pitting private property advocates against prominent public access groups.
The state Supreme Court is considering the lawsuit over easements now. Atlanta-based media mogul James Kennedy owns a sizable piece of property on the Ruby River. Several county bridges cross the river on his land and a district court judge found it legal for Kennedy to fence off access to the river on one of those bridges—because of the type of ‘prescriptive easement’ on the bridge.
Public lands access advocates appealed that ruling to the Montana Supreme Court. Now, before the high court, Landowner James Kennedy is arguing a U.S. Supreme Court Decision on a case between Montana and PPL Montana from last year means the state’s stream access law should be thrown out or limited.
President of the United Property Owners of Montana Marc Robbins, said the U.S. court decided the state only owns the banks and beds of rivers if the river was commercially navigable at the time of statehood.
The Ruby River and other small streams like it to not meet that criteria.
“We feel that the state erred in its taking of the stream beds years ago,” Robbins said, “and this PPL ruling definitely turned the tides of the basis for what stream access was founded on.”
Montana Trout Unlimited Executive Director Bruce Farling believes these issues were hashed out by the State Supreme Court before the Stream Access law was established in the 80s.
He said the court decided the state constitution says the public owns the state’s water and they should be able to use it.
“They told the legislature at that time, they said ‘look, the public should have access on these streams to be able to recreate on them, irrespective of whom owns the bed and bank,’” Farling said.
The state supreme court has not made any decision on the case.
Abortion opponents are supporting a bill which would require parental consent before a minor can get an abortion. The bill follows up on a ballot measure passed overwhelmingly by voters last fall. Legislative Referendum 120 requires parental notification prior to abortion for a minor under the age of 16. 70 percent of voters voted in favor of it and it is now state law.
The bill before the House Judiciary Committee takes the idea from LR 120 one step further. Under the new bill, HB 391, a girl under the age of 18 would need a parent’s notarized written permission before seeking an abortion. A similar measure was passed by the Legislature in 1995, but was struck down by the Montana Supreme Court in ‘99.
Montana ACLU Public Policy Director Niki Zupanic says the court pointed to the state Constitution’s strong right to privacy, which can only be overridden by a compelling state interest. The court says minors have these rights too, unless the law in question is found to enhance their safety.
“It’s that…part that is really being challenged by the law that is before you today,” Zupanic told the committee, “Does a consent requirement help minors or hurt minors?”
She says it was found to hurt minors more “by making them delay care or driving them into dangerous situations where they may harm themselves or seek an illegal abortion.”
Opponents to the new consent bill say over 90 percent of teens seeking an abortion now do consult with their parents. They say those who don’t may be afraid of parental abuse or may be pregnant due to the sexual abuse of a family member.
State Director of Montana Right to Life Greg Trude supports the consent bill. He says doctors need permission before performing other medical procedures.
“Suturs , a wart removed, a physical, a checkup, a Tylenol, they have to have parental permission,” he said.
Opponents say abortion falls under a different category.
“How many young women do you know that harm themselves because they took a tylenol, how many young women run away because of a wart, how many young women are thrown out of their homes, verbally abused or worse because of braces?” Asked Lindsey Love, speaking on behalf of Planned Parenthood Advocates of Montana.
The nonpartisan Legislative Services Division has submitted a legal note on the bill, saying the Supreme Court’s striking down of the similar 1995 bill brings up constitutional concerns about this bill too.
Montana Family Foundation President Jeff Lazloffy disagrees.He says the heavy majority voting in favor of last fall’s ballot initiative shows the public believes the Montana Supreme Court made a mistake.
“We had the vote on LR 120, the notification initiative, the will of the people was clearly articulated, and I believe that needs to be taken into account and I believe that proves the court went way beyond what the people wanted when they were interpreting the constitution,” he said.
The House Judiciary committee did not take a vote on the bill.
Sticker worn by an opponent of SB 220 during the bill’s hearing on Monday
A bill which would clarify the state’s position on physician assisted suicide is being considered by a committee of state lawmakers. Sponsor Senator Dick Barrett (D-Missoula) says his legislation clarifies a Montana Supreme Court Decision which says citizens have a right to ask for ‘aid in dying’.
Barrett says the Montana Supreme Court’s 2009 ‘Baxter Decision’ makes his bill necessary, due to it’s vague and broadly written nature. Helena attorney Ron Waterman supports Barrett’s bill on that note, saying it “avoids…doctors having to drag out the Baxter Decision, it’s almost 70-some pages, read through it and try to figure out what it means to them.”
Senator Barrett’s bill has three primary aims.
Provide protections to terminally ill patients seeking to end their own lives if they’re mentally competent.
Provide legal immunity to the physician or friends or family who help with the assisted suicide—provided it’s in good faith.
Make sure no one is required to provide ‘aid in dying’ services if it is contrary to their conscience or religion.
“It would have been extremely rare for this bill to be needed, when it was needed it was needed critically,” said primary care physician Kenneth Eden. He says hundreds of his patients have died under his care—but a small number of them were suffering greatly and pleaded for a way to die. Supporters say this bill would give people more freedom, to make that final choice about the end of their lives.
Opponents of the bill believe it’s taking away freedom.
“I am 64-years old and I do not want a doctor or a nurse telling me or my wife that we should murder ourselves,” said President of the group Montanans Against Assisted Suicide Bradley Williams. “We have the right to be left alone.”
The bill does not in any way mandate the use of assisted suicide, it would be voluntary.
Those against the bill do say it allows for elder abuse—especially when inheritance is involved. Also, Kalispell physician Annie Bukacek says doctors are often wrong when predicting things like life expectancy. She brought up a friend with breast cancer that moved to her lungs. Doctors told her she had 6 months to live, “and that was 15 years ago, she still has a medical practice and she’s still playing tennis. If assisted suicide becomes legal in this state there will be Montanans who kill themselves who could have had many quality years.”
Sidney Republican Representative David Halvorson brings up a theological argument against the bill. He points to the Declaration of Independence, which provides the inalienable rights given by God—rights like the right to life.
“And therefore to attempt to bargain away your right to life through assisted suicide is a bargaining away of the grant of the almighty,” he said.
No action was taken on the bill. Both Oregon and Washington have similar laws which allow physician assisted suicide.
The race for Supreme Court Justice is developing into a contest over who can be the most impartial. Voters will decide between District Judge and Choteau resident Laurie McKinnon and Missoula Public Defender Ed Sheehy.
Each candidate puts forth a slightly different view on what best demonstrates impartiality.
Public Defender Ed Sheehy says he’s showing his neutral stance through refusing endorsements.
His website does not list any, even from politically neutral figures like judges. It’s not that he hasn’t been receiving endorsements, he has.
“But I don’t want any endorsements from any judges, lawyers, whatever because I want to be able to say I’m gonna be fair and impartial,” Sheehy said.
He says the recent decision of the 9th US Circuit Court of Appeals to throw out Montana’s prohibition on partisan endorsements of judicial candidates is not a wise decision.
His opponent in this race for State Supreme Court, District Judge Laurie McKinnon, does have endorsements on her website. They are not political endorsements but some of the groups that have endorsed her are generally seen as conservative, like the Montana Chamber of Commerce and the Montana Farm Bureau.
Also the right-wing Montana Growth Network has put out fliers supporting McKinnon and has run ads against opponent Ed Sheehy. Judge McKinnon has not accepted an endorsement from this group.
She says she has demonstrated impartiality through her six years serving as a Judge, experience her opponent does not have.
As for the 9th circuit decision on partisan judicial endorsements, she says she will not give an opinion on that ruling, because the issue will likely come before the state Supreme Court.
“I think it’s very dangerous when a candidate for judicial office, particularly the highest court of our state indicates a position one way or another on something that will come before the Supreme Court,” McKinnon said.
McKinnon notes she does not list opinions on issues on her website, where Sheehy does.
McKinnon says she will bring her perspectives as both a lawyer and a judge to bear on the Supreme Court.
Sheehy faults her for saying that.
“You have to set aside all of your perspectives. I can’t say and will never say that I would present the criminal defense lawyer perspective to the Montana Supreme court,” Sheehy said.
He says his 34 year career as a lawyer taught him the law from many sides. But he says you have to make decisions on the court based on the letter of the law and nothing else.
His opponent Judge McKinnon agrees with that, although she stresses she has already been doing that. She says her current job is a very different one than Sheehy’s as a Public Defender, one who has to be an advocate for the client.
“And a judge cannot be an advocate and has to personally be neutral in their home and in their community but most importantly has to maintain that neutrality from the bench it’s a completely different role,” she said.
While the two of them fight to be seen as more neutral, it’s voters that will have to take a side on November 6th.
Proponents of medical marijuana reform passed by the state legislature are regrouping. This after the Montana Supreme Court reversed a lower court injunction blocking part of the reform this week. The reform bill still will go before voters this November.
The 2011 medical marijuana reform bill was passed by state Legislators as Senate Bill 423. It dramatically restricted use of the substance from the rules in the medical marijuana initiative passed by voters in 2004. Lawmakers were seeking to reign-in the number of people registering to use marijuana and shut down the burgeoning industry that accompanied it.
But, the Montana Cannabis Industry Association was quick to file suit against the law and District Judge Jim Reynolds last year blocked several parts of it from taking effect, saying it violated patients’ and providers’ constitutional rights to privacy and to pursue employment and health.
The Supreme Court reversed Reynolds injunctions this week. Billings Republican State Senator Jeff Essman Sponsored the reform bill in the legislature. He’s glad to see Judge Reynolds decisions struck down.
“Which, basically, as the Supreme Court found would have elevated access to medical marijuana to constitutional status,” Essman said.
The Supreme court does say an individual has a fundamental right to obtain and reject medical treatment. But, they also say, this right does not extend to give a patient a fundamental right to use any drug, regardless of its legality. Marijuana is still illegal federally.
Former marijuana lobbyist Tom Daubert just received five years probation for his role in a medical marijuana growing operation. He still describes the marijuana reform bill as repeal in disguise. He largely dismisses the high court’s ruling.
“The Supreme Court didn’t judge the merits of the current law except regards constitutionality. They didn’t say it was a good law,” Daubert said.
Enough signatures were gathered to put the marijuana reform bill up to a public vote in November as IR-124. Daubert says more or less what the Supreme Court has done is put the issue squarely back in the laps of voters.
“Which I think is where it belongs, it was voters who made a compassionate decision, a smart decision 8 years ago,” Daubert said.
Voters will have the option to reject the law, but State Senator Jeff Essman predicts they won’t.
“We took important first steps to get a situation that was widely regarded as out of control under control,” he said.
However the vote for IR-124 comes out, Essman predicts the legislature will be taking up the issue again next session.
Meanwhile, Supreme Court Justices sent the case back to District Judge Reynolds with orders to review it under a less-strict standard.
The Montana Supreme Court today decided the status of two ballot measures slated for the 2012 election. The court dismissed a petition seeking to remove Initiative 166 from the ballot. That initiative establishes a state policy that corporations are not people.
Another measure submitted to the voters by the State Legislature, has been stricken from the ballot.
A political committee called ‘Montanans Opposed to I-166’ filed the petition to get that initiative removed from the ballot. That committee includes Helena Republican State Senator Dave Lewis. The petition argues the initiative is unconstitutional and the State Attorney General’s Office should have thrown it out in their legal review of all the ballot measures. Attorney for the committee Chris Gallus says he’s disappointed the state’s high court dismissed the petition.
“I think the Attorney General does or should have the authority to look at a proposed measure and just on it’s face determine if it violates Constitutional mandates to appear on the ballot,” he said.
State Law Librarian Judy Meadows says the Court threw out the petition because while yes, the Initiative may not line up with parts of the Constitution—that’s the point. The initiative would change the Constitution.
“The Attorney Generals responsibility does not include consideration of the substantive legality of the issue if it has been approved by the voters,” Meadows said. “So it’s basically up to the voters to decide whether they think this will be Constitutional or not.”
She adds the Montana Supreme Court cannot add or subtract items from the Constitution or block new material. Neither can the Attorney General.
“The only people who can change that and do something about it are the voters themselves,” she said.
Initiative 166 Campaign Treasurer C.B. Pearson is happy with the court’s ruling.
“We thought this was a frivolous lawsuit from the beginning, by a bunch of corporate hired guns. It’s never a good thing when people try to prevent Montanans from voting for issues,” Pearson said.
Attorney for ‘Montanans Opposed to I-166’ Chris Gallus, says he is filing a different complaint with District Court. But for now, the initiative will make the ballot.
That will not be the case for LR-123. This was submitted to the voters by the legislature. It would require state budget surpluses be returned to tax payers. The Supreme Court agreed with a District Court Ruling saying the measure is unconstitutional.
But the court did not file opinions, yet. State Law Librarian Judy Meadows says the court knew some ruling was needed as soon as possible so ballots and voter information packets can be printed.
“They had the votes, they knew exactly what was going to happen, that they were going to uphold what the District Court did. But they’re not ready to write anything, it’s August. They’re on vacation,” she said.
The court says analysis and rationale for this decision will follow in due course.
The Montana Supreme Court has sent a divorce case back down to the District Court level for more clarification in what could be a precedent-setting decision on the state’s definition of when life begins.
At issue are fertilized frozen embryos the couple made while married. After the divorce, the ex-husband wants them donated to science.
The ex-wife, however, still wants to use them to have a child.
To start out, this embryo issue is part of a larger divorce settlement between two Great Falls-area residents, David Johnson and Mary Black. It’s a pretty complicated divorce involving undisclosed property and assets. The Supreme Court agreed with the ruling of District Judge Katherine Irigoin on those things.
But the court specifically pulled out the ruling on the couple’s nine frozen embryos and is sending that back. District Judge Irigoin ruled in favor of David Johnson, saying the embryos should be donated to science. In the Justice’s Memorandum opinion they say Judge Irigoin’s ruling was not explained—saying “The court’s order consisted of a single sentence with no analysis.”
“And the court felt this was a much more complicated area and wants the District Court to explain if she’s going to decide this under contract law, under property law, under family law, what is she going to base her decision on,” said Montana Law Librarian, Judy Meadows.
Now, let’s go back to how this situation starts.
It’s the mid to late-90s and David Johnson and his wife Mary were trying to conceive a child with no success. David has two children from a previous marriage so the couple went to specialists to test Mary’s fertility, and found a problem.
“They ran all the tests why I couldn’t have children and they determined my best course was in-vitro fertilization,” Mary Black said.
At that time there was no fertility clinic in Montana that could perform in-vitro fertilization—so the couple went to a clinic in Indianapolis—Midwest Reproductive Medicine.
Then there was a several-month-long process involving hormone treatment to get the collection of Mary’s eggs. They were then combined with David’s sperm and nine fertilized embryos were created (clinics wantmultiple embryos because they’re not all going to take in the womb.)
Mary wanted to have them implanted right then, but the clinic determined the treatment she had undergone had thrown her hormones out of whack for awhile. So to wait for the right time, the nine embryos were cryogenically frozen at the clinic.
Then, months go by. Then, years go by.
Mary says David kept giving reasons why a particular time wasn’t a good time to have a child. David Johnson declined our calls seeking comment for this story, saying it’s a private matter.
Eventually, the couple divorces in 2003 with the embryos still frozen. Mary has since remarried, but she says this is the only way she can get pregnant. She says the process to extract the eggs is long and expensive and painful—she doesn’t want to go through it again. Perhaps more importantly, those embryos were made when she was in her 20s.
She’s 42 now. Her eggs won’t be as healthy. She feels she’s running out of time—so she wants all nine.
“With nine embryos it doesn’t mean they’re going to put in a couple embryos and it’s gonna produce a child. Not all embryos are going to result in a child because they’ve been frozen and in the process of that maybe not all are going to survive the thaw process,” Black said.
So if she were given the embryos she would immediately try to get pregnant retroactively with her ex-husband’s child.
“This is definitely a case of first impression,” State Law Librarian Judy Meadows said.”It’s the first time it’s been heard in Montana.”
Meadows says the ruling made at the District Court level, to donate the embryos to science, seems to suggest they are property.
It’s not how Mary Black feels.
“I don’t know why you would want to discard something that represents human life,” Black said.
Judy Meadows says that’s why this divorce case could have big implications. Should frozen, fertilized, embryos constitute life?
“We’re not giving away the Chevy,” Meadows said. “These are potential human beings and there has to be very careful consideration of what would happen to them.”
Meadows says whatever decision District Court makes will almost surely be appealed back to the Montana Supreme Court.