Regents can set gun policy on state campuses – Daily Montanan
The Montana Board of Regents has full authority to oversee Montana’s university system, and a bill that attempted to strip it of its power to restrict firearms on campus is unconstitutional when applied to regents, according to a unanimous decision Wednesday of the Supreme Court of Montana. .
“The council, not the Legislative Assembly, is constitutionally vested with full authority to determine MUS priorities,” said the opinion written by Justice Laurie McKinnon. “HB 102 sought to undermine this constitutional authority and therefore cannot be applied to the board and properties of MUS.”
Court clerk Bowen Greenwood said the state of Montana could file a motion for a rehearing with the Montana Supreme Court within 14 days. The state, through the Attorney General’s office, can also file an appeal with the United States Supreme Court.
Approved in the 2021 Montana Legislature, House Bill 102 authorized concealed transport anywhere in Montana except for specific locations defined by the Montana Legislature, the opinion said.
A Board of Regents policy has restricted firearms on campus since at least 2012, the opinion says, but a provision in the bill sought to prohibit the board’s power to do so. He eliminated council policy, which generally only allows law enforcement and security to carry firearms on campus.
He also extended open and concealed carrying of firearms to campuses, and he created “a cause of action” for any government entity denying anyone the right to carry firearms under the bill, according to opinion.
A few other similar bills had died in the past in Montana, at least once by a Democratic governor’s veto. Then in 2020, Republicans won the governorship.
In 2021, a Republican-dominated legislature quickly introduced HB 102 in both houses, arguing that Montanans have a sacred and constitutionally protected right to defend themselves, and that right should not disappear on college campuses. On February 18, halfway through the legislative session, Governor Greg Gianforte hosted 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 over the parts of the bill that violated the regent’s constitutional authority. On Wednesday, six judges and a judge sitting for a judge upheld the lower court’s decision.
The opinion made it clear that the 1972 Constitutional Convention intended to place responsibility for oversight of campuses in the Board of Regents, and it also stated that the board could not oversee the education of students without also ensuring their safety. .
Additionally, the opinion said that part of the State of Montana’s argument that other laws governing campuses are proof that the legislature can regulate the university were “attempts to misuse the pending issue – whether the legislature can infringe the constitutional authority of the council”.
But the notice says the Board of Regents has broad powers. Citing another ruling, she said they involve “the power to do whatever is necessary and proper for the exercise of its general powers”.
“…Indeed, the Council ‘has not only the power, but also the constitutional authority and the statutory duty to ensure the health and stability of MUS,'” the ruling said.
The intent of Montana’s constitutional drafters controls the court’s interpretation of the constitutional provision, according to the opinion. And he said their intent is clear from the clear language they used and the debate they held at the Constitutional Convention.
On the one hand, they removed language from the 1889 constitution that submitted the council’s powers to legislative control, according to the opinion, although it remained subject to certain legislative powers, such as appropriation and audit. .
“The debate reveals that the framers intended to place the MUS beyond the reach of makeshift political changes and instead in the hands of a board of directors that remained directly responsible and accountable to the Montanese,” the statement said. opinion. “Indeed, the editors recognized the importance of independent and unfettered academic freedom.”
The opinion also quoted a transcript of part of the constitutional convention: “If a council is established for higher education and is given the responsibility for education but not the authority to assume that responsibility, how can be held accountable to the people?
“If the real authority to carry out higher education policies is dispersed among the bureaucratic policy frameworks of other agencies, then who is accountable to the public? A healthy post-secondary education system must be insulated from changing political fortunes, while maintaining its responsibility and accountability to the state.
The opinion noted that the constitution does not mention the regents where it confers the legislative power, as well as the corresponding limitations, and it does not mention the legislature where it entrusts the regents with the governance of the university system.
“The board of directors and the legislature derive their respective power from the same authority – the Constitution of Montana,” the opinion stated. “The Constitution defines the powers of each and imposes limits on these powers. Unless otherwise stated, a direct power conferred on one necessarily excludes the existence of such a power on the other.
The Board of Regents’ policy that governs firearms on campus reflects its judgment on a matter “undoubtedly within its constitutional authority”, according to the opinion. And he said the Council has determined that the presence of firearms on campus compromises a safe educational environment, and that he has the right to do so.
“It is particularly relevant and necessary for the constitutional authority of the regents that it can manage the MUS campuses by implementing policies which it believes will minimize the loss of life and thereby strengthen its educational environment,” said the opinion.
He also noted that Montana has experienced gun homicides on campus, noting the murder of two Montana State University students at Bozeman in 1990, and that the court recognized that a college could “failing in its duty to provide a reasonably safe and secure place to work.”
“We note that council policy 1006 (regulating firearms) recognizes that Montana is not immune to the catastrophic loss that follows the use of firearms on school campuses,” the statement reads. ‘opinion.
The opinion said the position does not elevate the regents to a fourth branch of government, as the state had argued. Rather, she said that when legislative action infringes upon the powers constitutionally vested in the council, the legislative power must yield.
The Attorney General’s office had not responded Wednesday to questions about whether it plans to seek a rehearing with the state or appeal to the U.S. Supreme Court as of this story. .
District Judge John Parker replaced Judge Ingrid Gustafson, who recused herself.
The sponsor of the bill criticizes the opinion
Rep. Seth Berglee, R-Joliet, sponsored House Bill 102, and he shared the following statement:
“This is a dangerous and slippery decision by the Supreme Court of Montana. The justices ruled that a group of unelected bureaucrats can use their own judgment to determine the extent of your constitutional rights on college campuses, all without control by the people or their elected representatives.
Our constitution states that the possession or carrying of weapons “shall not be questioned”. If the Board of Regents can restrict this right, what will prevent it from restricting free speech, due process, voting, or the execution of warrantless searches and seizures on university property? That unelected members of the Board of Regents can unilaterally limit constitutional rights should be of concern to all Montananese. This is the most pro-government, anti-freedom decision 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 MUS, said the following in a statement:
MUS appreciates the clarity provided by the Montana Supreme Court. Early on, the Board of Regents sought judicial review of HB 102 to determine the appropriate entity to set policy for the state’s public colleges and universities. The Board of Regents appreciates its strong partnership with the Legislative Assembly and will continue to work toward common goals and priorities to strengthen the state’s economy and provide world-class educational opportunities for Montananese.