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WESTERN TRADITION v. ATTORNEY GENERAL
271 P.3d 1 (2011)
2011 MT 328
363 Mont. 220
WESTERN TRADITION PARTNERSHIP, INC., a corporation registered in the State of Montana, and Champion Painting, Inc., a Montana corporation, Montana Shooting Sports Association, Inc., a Montana corporation, Plaintiffs, Appellees and Cross-Appellants,
v.
ATTORNEY GENERAL of the STATE of Montana, and Commissioner of the Commission for Political Practices, Defendants and Appellants.
No. DA 11-0081.
Supreme Court of Montana.
Argued and Submitted September 21, 2011.
Decided December 30, 2011.
For Appellees: Margot E. Barg (argued); Wittich Law Firm, P.C., Bozeman, Montana.
Lawrence A. Anderson, Attorney at Law, Great Falls, Montana (for MTLA, Montana Conservation Voters, Montanans for Corporate Accountability, and Montana League of Rural Voters).
Jonathan Motl; Morrison Motl & Sherwood, Helena, Montana Jeffrey D. Clements, Clements Law Office, LLC, Concord, Massachusetts (for Free Speech for People; American Sustainable Business Council; Novak and Novack, Inc., d/b/a Mike's Thriftway; Home Resource, Inc., and The American Independent Business Alliance).
Mark Mackin, Attorney at Law, Helena, Montana (for Montana Public Interest Research Group and Peoples Power League).
Karl J. Englund, Karl J. Englund, P.C., Missoula, Montana; Karl J. Sandstrom, Perkins Coie LLP, Washington, D.C. Michael T. Liburdi, James A. Ahlers, Jerica L. Peters, Perkins Coie LLP, Phoenix, Arizona (for Domini Social Investments LLC; Trillium Asset Management Corporation; Newground Social Investment; Interfaith Center On Corporate Responsibility; Harrington Investments, Inc.; The Sustainability Group of Loring, Wolcott & Coolidge; Calvert Asset Management Company, Inc.; The Christopher Reynolds Foundation, Inc.; and Walden Asset Management, a Division of Boston Trust & Investment Management Company).
Chief Justice MIKE McGRATH delivered the Opinion of the Court. ¶ 1 The Attorney General of Montana and the Commissioner of Political Practices appeal from the District Court's Order on Cross-Motions for Summary Judgment filed October 18, 2010. We reverse. PROCEDURAL AND FACTUAL BACKGROUND¶ 2 Western Tradition Partnership (WTP), Champion Painting and Montana Shooting Sports Foundation (MSSF) sued the Montana Attorney General and the Commissioner of Political Practices seeking a declaration that § 13-35-227(1), MCA, violated their freedom of speech protected by the United States and Montana Constitutions by prohibiting political expenditures by corporations on behalf of or opposing candidates for public office. The parties filed cross-motions for summary judgment along with briefs and supporting materials. The District Court declared the statute unconstitutional, granted summary judgment for the plaintiffs and denied summary judgment to the State defendants. The District Court enjoined enforcement of the statute and denied the motion of Champion and MSSF for an award of attorney fees. The State appeals the order of summary judgment in favor of the plaintiffs, and Champion and MSSF cross-appeal from the denial of their request for attorney fees. STANDARDS OF REVIEW¶ 3 This Court reviews a district court's decision on summary judgment using the same standards as the district court under M.R. Civ. P. 56. Where there are cross-motions for summary judgment and the district court is not called upon to resolve factual issues, but only to draw conclusions of law, we review to determine whether those conclusions are correct. Bud-Kal v. City of Kalispell, 2009 MT 93, ¶ 15, 350 Mont. 25, 204 P.3d 738. Accordingly, a moving party is entitled to summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Town & Country Foods v. City of Bozeman, 2009 MT 72, ¶ 12, 349 Mont. 453, 203 P.3d 1283. Statutes enjoy a presumption of constitutionality, and a decision on the constitutionality of a statute is subject to plenary review. City of Billings v. Albert, 2009 MT 63, ¶ 11, 349 Mont. 400, 203 P.3d 828. DISCUSSION
1. Under Montana law corporations are allowed to make independent expenditures on ballot issues. Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9th Cir.2000).
2. In a decision in October, 2010, the Montana Commissioner of Political Practices found that WTP had created a sham organization through which to channel campaign funds, and that its arguments to the contrary were deceptive. The Commissioner further concluded that WTP's failure to register as a political committee and to disclose the true source and disposition of the funds it raised "frustrates the purpose of Montana's Campaign Finance and Practices Act [and] raises the specter of corruption of the electoral process. . . ."
3. The Court noted, for example, the "scant evidence" of the effects of independent expenditures. Citizens United, 130 S.Ct. at 910.
4. Montana is the fourth largest state in size, covering over 145,000 square miles, and has a population less than one million people.
5. The State has additionally argued that it has a compelling interest in protecting the rights of dissenting shareholders who disagree with the political stance of corporate spending. We do not reach that issue because it has not been presented in the factual framework of this case.
1. I refer to the United States Supreme Court as "the Supreme Court." References to the Montana Supreme Court include "the Court," "this Court," "we," and "our."
2. As the Court notes, direct contributions are not at issue here. Opinion, ¶ 8.
3. The task is all the more distasteful in light of Western Tradition Partnership's questionable tactics and blatant hypocrisy. See Opinion, ¶¶ 7, 9, 19; Br. of Appellants 10-11, 22-23 (Apr. 15, 2011).
4. See Robert Barnes, Citizens United Decision Reverberates in Courts across Country, Washington Post (May 22, 2011) ("The [Supreme Court's] January 2010 decision freeing corporations and unions to spend whatever they like for and against candidates wiped out laws in 24 states banning such spending. Only Montana still wages a lonely court battle to maintain the ban."); Natl. Conf. of State Legislatures, Citizens United and the States, http://www.ncsl.org/ default.aspx?tabid=19607 (updated Jan. 4, 2011) (noting that "[i]n 17 of the 24 states with laws affected by the Citizens United decision, legislation has been introduced to amend the law," and listing the bills).
5. Unfortunately, remaking cases is not a phenomenon exclusive to the Supreme Court. See e.g., Western Sec. Bank and Glacier Bancorp, Inc. v. Eide Bailly LLP, 2010 MT 291, ¶¶ 71-82, 359 Mont. 34, 249 P.3d 35 (Nelson, J., concurring in part and dissenting in part); PacifiCorp v. State, 2011 MT 93, ¶¶ 65-67, 360 Mont. 259, 253 P.3d 847 (Rice & Nelson, JJ., concurring).
6. In addition to the foregoing criticisms by the dissent, I note that the Citizens United majority's approach has also been criticized for flouting the very rhetoric that conservatives have espoused for decades against so-called "judicial activism." See e.g. Erwin Chemerinsky, Op., Conservatives Embrace Judicial Activism in Campaign Finance Ruling, L.A. Times (Jan. 22, 2010); see also Reza Dibadj, Citizens United as Corporate Law Narrative, 16 Nexus 39, 40-48 (2010-2011) (noting "technical concerns" and "constitutional problems" with the majority's approach); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L.Rev. 253 (2009) (criticizing the same five-Justice majority for not adhering to a conservative judicial methodology in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)).
7. I occasionally refer to § 13-35-227, MCA, hereafter as "Section 227" or "§ 227."
8. An exemption for "voluntary associations" is not codified in the statute. Rather, it is the Commissioner's "policy" to except such associations from § 227(1). Prior to 2003, a narrow category of nonprofit corporations was statutorily permitted to make contributions to or expenditures in connection with ballot issues, notwithstanding the general prohibition on corporate contributions and expenditures. See § 13-35-227(1), (4), MCA (2001). But in light of Mont. Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9th Cir.2000), which held that corporations cannot be prohibited from making direct corporate expenditures in ballot initiative campaigns, the 2003 Legislature amended the statute accordingly. See Laws of Montana, 2003, ch. 59.
9. It is somewhat ironic that the Court would cite Justice O'Connor in the context of discussing Montana's "interest in protecting and preserving its system of elected judges," given that she has been openly critical of this form of selecting judges. See Republican Party of Minn. v. White, 536 U.S. 765, 788-92, 122 S.Ct. 2528, 2542-44, 153 L.Ed.2d 694 (2002) (O'Connor, J., concurring).
10. See James C. Nelson, Keeping Faith with the Vision: Interpreting a Constitution for This and Future Generations, 71 Mont. L.Rev. 299, 311 (2010).
11. Notably, the Supreme Court eight years earlier rejected as "not a true picture of the American system" the notion that an elected judiciary is completely separate from the enterprise of "representative government." White, 536 U.S. at 784, 122 S.Ct. at 2539.
12. As reflected in the discussion of White (¶¶ 116-118, supra), and as I have previously noted (Nelson, 71 Mont. L.Rev. at 310), the system of electing judges and justices presently finds little support or esteem from the appointed federal judiciary.
13. Perhaps, ironically, it will come to pass that the best way to insure that a judge or justice does not sit on a case involving a particular corporation is for the corporation to run a vigorous and expensive campaign supporting the judge's election.
14. Cf. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L.Rev. 253, 255-56 (2009) ("It is the solemn duty of judges on the inferior federal courts to follow, both in letter and in spirit, rules and decisions with which we may not agree. Our oath demands it, and our respect for the Supreme Court as an institution and for the able and dedicated individuals who serve on it requires no less. But esteem can likewise be manifest in the respectful expression of difference—that too is the essence of the judicial craft.").
15. Milton Friedman: the guru, popularizer, and propagandist for unrestrained free-market economics. See Naomi Klein, Shock Doctrine: The Rise of Disaster Capitalism (Henry Holt & Co. 2007).
16. For example, the Los Angeles Times recently reported that Crossroads GPS, the conservative group co-founded by Karl Rove, released an ad slamming Montana Senator Jon Tester for supporting an Environmental Protection Agency regulation on farm dust. However, one Montana cable show pulled the ad "because the network determined that it was false; the regulation was actually never proposed, and the vote cited in the ad was a procedural measure." Tom Hamburger & Melanie Mason, Chamber of Commerce Getting Early Start with Attack Ads, L.A. Times (Nov. 16, 2011).
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