In Memoriam: Judge Browning (1918-2012)
On Saturday, May 5th Judge James R. Browning passed away. Judge Browning was raised in Belt, Montana and attended the Montana School of Law. He graduated from the School of Law in 1941 and served as judge on the Ninth Circuit Court of Appeals from 1961 until his death.
In honor of Judge Browning, the Montana Law Review dedicated its most recent issue in his honor. Judge Browning was, of course, a member of the Law Review and its most prestigious alumnus. For the issue, several of Judge Browning’s former clerks wrote short stories reflecting on their time with Judge Browning. These tributes can be read here: Tributes to Judge James R. Browning
2012 Honorable James R. Browning Symposium
The Montana Law Review is excited to announce that on September 27 and 28, 2012, the Law Review will host the 2012 Honorable James R. Browning Symposium on ”The State of the Republican Form of Government in the States.”
The Symposium will be held at the UC Theater.
Professor Lawrence Lessig from Harvard Law School will make the keynote address. Other prominent national and local scholars and practitioners will participate in the discussion.
Topics to be discussed include: campaign finance regulation, election administration, ballot issues, redistricting, judicial elections, voting rights in Indian Country, the intersection of state corporate and campaign laws, political libel, and others depending on participant interest.
U.S. Supreme Court reverses Montana Supreme Court in PPL Montana v. Montana
On February 22nd, the United States Supreme Court reversed the Montana Supreme Court’s PPL Montana v. Montana decision, which awarded the State $41 million in back rent from PPL.
The Montana Supreme Court’s decision affirmed the district court’s grant of summary judgment to the State in regards to the affirmative navigability of the Clark Fork, Madison, and Missouri rivers at the sites of ten hydroelectric dams. Although the Montana Supreme Court determined that certain stretches of the rivers were not navigable, it rejected a segment-by-segment analysis for determining navigability that focused on whether the relevant sections were, in fact, navigable. Instead, the Court held that “navigability for title purposes is very liberally construed,” and declared that “short interruptions” in navigability requiring users to portage overland to circumvent the sections did not defeat navigability. Thus, the equal footing doctrine prohibited the State from transferring title of the riverbeds underneath the dams, and the State was entitled to $41 million in back rent from PPL.
The United States Supreme Court reversed, reasoning that the Montana Supreme Court decision was “based upon an infirm legal understanding of [the Supreme Court’s] rules of navigability for title under the equal footing doctrine.” After a review of the geography and hydrology of the Clark Fork, Madison, and Missouri rivers, the Court turned to the principles underlying the equal footing doctrine—the rule that “the States, in their capacity as sovereigns hold title to the beds under navigable waters….”
The Court acknowledged the English origins of the equal footing doctrine and its expansion by American law. While the English doctrine limited government ownership to waters that were susceptible to the “ebb and flow of the tide,” that rule was “ill suited to the United States with its vast number of major inland rivers upon which navigation could be sustained.” In a series of late 1800 Supreme Court cases, the Court refined the test for navigability to “navigability in fact.” Under this test, the Court reasoned that a river is navigable in fact when it “is used, or susceptible of being used, in [its] ordinary condition, as [a] highway[] for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The equal footing doctrine protects the States as co-equal sovereigns to control the rivers which are used for commerce. It was the misapplication of these principles which the United States Supreme Court to reverse the Montana Supreme Court.
“The primary flaw in the reasoning of the Montana Supreme Court,” the Supreme Court reasoned, “lies in its treatment of the question of river segments and overland portage.” The Court noted that the “segment-by-segment” approach was “well settled, and should not be disregarded.” In support of this proposition, the Court noted that two of its previous decisions, United States v. Utah, 283 U.S. 64 (1931) and Brewer-Elliot Oil & Gas Co. v. United States, 260 U.S. 77 (1922), had analyzed the navigability of the Colorado River and Arkansas, respectively, applying a segment-by-segment approach. The Court also reasoned that “practical considerations” support the segment approach because many American rivers, including the Missouri River, are thousands of miles long and consist of varying topography.
The United States Supreme Court also held that the Montana Supreme court erred by relying on “evidence of present-day, primarily recreational use of the Madison River”—namely, fishing boat use of the river. The Court clarified that modern-day use is not inadmissible, but rather that evidence “must be confined to that which shows the river could sustain the kinds of commercial use that, as a realistic matter, might have occurred at the time of statehood.” Thus, the Court held that that Montana Supreme Court erred by failing to determine whether the watercraft currently used on the Clark Fork are “meaningfully similar to those in customary use for trade and travel at the time of statehood” and by failing to determine whether the Clark Fork’s condition “is not materially different from its physical condition at statehood.”
Applying these principles, the United States Supreme Court reasoned that, given the evidence in the record, the “Great Falls reach” of the Missouri River was not navigable because Meriwether Lewis and William Clark portaged around the section in their 1805 expedition. The Court also alluded that “Thompson Falls” reach of the Clark Fork River was likely non-navigable based on the historical evidence that the falls were “a complete obstruction to navigation.” The Court was careful, however, to aver that “the ultimate decision as to this and the other disputed river stretches is to be determined . . . by the Montana Courts,” informed by the principles discussed in the Supreme Court’s decision.
The case was remanded to the Montana Supreme Court for further proceedings.
New York Times Cites Montana Law Review
Today, was a first for the Montana Law Review: the New York Times cited Professor Howell’s article on Western Tradition Partnership in an editorial piece regarding the Montana Supreme Court’s recent decision.
The New York Time’s editorial can be read here and Professor Howell’s article can be read here.
Montana Supreme Court Hands Down Western Tradition Partnership
Today, the Montana Supreme Court handed down Western Tradition Partnership v. Attorney General, 2011 MT 328. Get the 80-page opinion (including dissents) here.
Question Presented: Does the portion of Montana’s Corrupt Practices Act which prohibits a corporation from making “a contribution or an expenditure in connection with a candidate” survive the United States Supreme Court decision Citizens United v. FEC, 130 S.Ct. 876 (2010)?
Answer: Yes. The Court upheld the State’s ban on corporate expenditures, reasoning that Montana had a compelling interest to have the law in force.
Chief Justice McGrath wrote the majority opinion which Justices Rice, Cotter, Wheat and Morris joined. Justices Nelson and Baker dissented.
Majority Opinion
The Court began with history and noted that Montana had a compelling interest in preventing corporate corruption in state politics when it passed the original act in 1912. ”Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte” Chief Justice Mike McGrath wrote about the famed Copper Kings, “between mining and industrial enterprises controlled by foreign trusts or corporation.” The Court then reasoned that Montana, with its history of small money campaigns, would be particularly affected by the entrance of corporate dollars which would overpower donations made by individual Montanans.
With these compelling interests in mind, the Court framed the dispositive questions as “when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did.” The Court concluded that the State still retained its interest:
Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.
The Court ruled that Montana had a compelling interest to prohibit corporate expenditures. Justices Rice, Morris, Cotter, and Wheat joined the majority.
Justices Baker and Nelson Dissented
Justice Baker began by stating that she believed that Citizen United foreclosed Montana’s law as unconstitutional. ”In my view,” she wrote, “the State of Montana made no more compelling a case than the painstakingly presented 90-page dissenting opinion of Justice Stevens and emphatically rejected by the majority in Citizens United.” Justice Baker went on to say that instead of a “vain attempt” to save Montana’s law, she would interpret the law to make corporate expenditures more transparent by allowing Montana to require heightened disclosure requirements.
Justice Nelson dissented, writing that the Citizens United was the “law of the land” which the Montana Supreme Court was bound to abide by. Justice Nelson made clear, however, that he did not personally agree with the Supreme Court’s reasoning in Citizens United. ”Admittedly,” Justice Nelson wrote, “I have never had to write a more frustrating dissent.” Justice Nelson wrote:
Has the State of Montana identified a compelling state interest, not already rejected by the Supreme Court, that would justify the outright ban on corporate expenditures for political speech effected by § 13-35-227(1), MCA? Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.
Justice Nelson concluded by stating that he would not be surprised if the United States Supreme Court reversed the ruling summarily on appeal.
The Montana Law Review will continue to track the developments of Western Tradition Partnership as it is likely to be appealed to the Supreme Court. Below are a few interesting links.
Read a recent article written by Montana School of Law Professor Howell on Montana’s history of corporate corruption.
Missoulian Article by Charles S. Johnson
On the Horizon: PPL Montana, Inc v. Montana
This Wednesday, December 7, the United States Supreme Court will hear oral argument in PPL Montana, LLC v. Montana. At stake is $41,000,000. The legal issue is what “navigable” means for the purposes of determining who owns certain riverbeds. If the Madison, Clark Fork, and Missouri rivers are “navigable” at the sites of nine hydroelectric dams owned by PPL, the State of Montana owns title to the riverbeds, and PPL owes the State millions in back rent for the use of the riverbeds from 2000 through 2007. But, if the rivers are not “navigable” at the sites of PPL’s dams, PPL legally owns the riverbeds under those dams and, therefore, does not owe back rent.
The case is being argued by Paul Clement (PPL) and Gregory Garre (Montana) both former United States Solicitor Generals. Deputy Solicitor General Edwin Kneedler is arguing on behalf of the United States in support of PPL. University of Montana Assistant Professor of Law Anthony Johnstone will be at counsel table for Montana.
PPL Montana has significant consequences for states, and it is consequently generating quite a bit of buzz going into oral arguments. Here’s a rundown of online resources and discussions of the case.
The basics:
Robert Barnes’ Washington Post article on the case is a great starting point.
The American Bar Association summarizes the questions presented and links to the briefs.
The Montana Supreme Court’s original order and state appellate briefs can be found at its website.
Finally, may we suggest this short from our Fall 2010 Issue?
Analysis:
Columbia University’s Thomas Merrill previews the arguments on SCOTUSblog, splits the issues and predicts a remand.
Professor Robert Adler of the University of Utah looks at the case from an enviromental standpoint at the Center for Progressive Reform’s blog.
Found an interesting/enlightening/infuriating article or discussion on PPL Montana? Let us know.
Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings
By Larry Howell
READ THE FULL ARTICLE ONLINE
PDF VERSION
This article discusses the case, Western Tradition Partnership v. Attorney General, currently before the Montana Supreme Court. Western Tradition concerns the viability of Montana’s century-old ban on independent corporate expenditures in campaigns for elected office, which a lower court held unconstitutional in light of the U.S. Supreme Court decision in Citizens United v. FEC. The Montana Attorney General appealed. This article argues that, while the Montana Supreme Court will have trouble invalidating the statute’s ban on corporate expenditures in political elections, the Court should uphold the ban on expenditures made in judicial elections.
This article first traces the history of Montana’s ban on corporate campaign expenditures by examining the corrupt practices of Montana’s copper kings at the turn of the twentieth century, particularly William A. Clark and F. Augustus Heinze. That corruption directly led to the passage, by citizen initiative, of Montana’s Corrupt Practices Act of 1912.
Within that historical framework, this article next examines the conflict between the U.S. Supreme Court’s recent decisions in Caperton v. A.T. Massey Coal Co. and Citizens United. The article then argues that Court’s decision in Caperton, which concerned independent expenditures in a judicial election, and the Court’s subsequent failure to distinguish between judicial and political elections in Citizens United, provides an opportunity for the Montana Supreme Court to create a judicial exception to Citizens United that would continue to prohibit corporate campaign expenditures to candidates for judicial office.