Constitution convention a quiet measure on the ballot

 

By CHARLES S. JOHNSON Missoulian State Bureau | Posted: Monday, October 4, 2010 11:55 pm
HELENA – It may be the most far-reaching and important issue on the November ballot, but Constitutional Convention Call No. 2 is flying so far under the political radar that no one is even talking about it.
If a majority of Montanans vote for CCC No. 2, it will call a state constitutional convention to revise or rewrite the state’s 1972 constitution. The revised constitution would be subject to a later ratification vote.
The 1972 constitution provided for an automatic vote every 20 years on whether to convene a constitutional convention. In 1990, the last time it was on the ballot, Montanans rejected calling a convention, 82 percent to 18 percent.
No political committees have formed yet this year to raise money for or against the call.
That was also the case in 1990.
“My guess is that there probably won’t be anything organized for it, unless there’s something organized against it,” said Sen. Joe Balyeat, R-Bozeman, lead author of the arguments in the voter information pamphlet for calling a constitutional convention. Helping him were former Sen. Ken Miller, R-Laurel, and Rep. Cary Smith, R-Billings.
Former Constitutional Convention delegate Jean Bowman of Missoula said she’s unaware of any organized effort by opponents of CC No. 2.
“The Constitutional Convention delegates are not in favor of calling a convention, but have not organized anything,” she said.
Supreme Court Justice James Nelson, who has written a law review article about the state constitution, urged Montanans to take this issue “very, very seriously” and “vote from a position of knowledge and understanding, not ignorance.”
“When the people go to the ballot box and decide whether to call a new constitutional convention, they have to keep in mind what sorts of rights and guarantees they may be giving up if a new constitutional convention is called and the constitution is changed,” Nelson said.
For example, he said the Montana Constitution’s Declaration of Rights protects Montanans far more than do the U.S. Constitution’s Bill of Rights. He said Montanans have the right to a clean and healthful environment, right to individual dignity, right to participate in government and more gun rights than under the Second Amendment.
He said Montanans should be wary that a new convention could be “hijacked on the basis of people’s ideology, sectarian principles or greed.”
Bowman said the current constitution isn’t perfect, but “I think the chances that we’ll do anything better than we have are slim.” The 1972 convention cost $600,000 or $700,000, meaning it would cost $3 million or $4 million in today’s dollars to convene one. She called that “an expensive risk that I’m not willing to take.”

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Balyeat said he favors calling a constitutional convention to fix numerous problems with the current state charter.
“The reason a lot of lawyers think the Montana Constitution is great is because it’s a lawyer’s dream,” said Balyeat, a certified public accountant. “It’s ambiguous, it’s got internal self-contradictions. It ventures into entitlement rights. All of these are fodder for lawsuits.”
Throughout his arguments in the voter information pamphlet, Balyeat quotes an unnamed law professor critical of the current document. It is Rob Natelson, former University of Montana law professor and a former candidate for governor, who left Montana this summer to take a job at Colorado think tank.
In the pamphlet, the professor (Natelson) concluded that “… in recent court decisions, there is an unprecedented power grab … that threatens every Montanan’s basic rights, If not reversed, these decisions will drive jobs and investment out of Montana.”
Balyeat said many experts believe the constitution needs to be amended to add limits on taxation and spending, to require supermajority legislative votes to raise taxes and to impose term limits on judges.
But Sen. Larry Jent, D-Bozeman, a lawyer who wrote the argument against CCC No. 2, disagreed, saying: “It ain’t broke, don’t fix it. People like their constitution.”
Taking a shot at Natelson, Jent said, “The only people who don’t like their constitution are law professors who can’t win a case and can’t win an election.”
Most voters understand that Montana has a constitution unique to their state and that it works, he said.
“It protects the ordinary Montanans from too much power either in the political or the corporate sense,” Jent said. “It guarantees people that don’t have a vote like school children and it protects the unique parts of Montana through a right to a clean and healthful environment.”
State Sen. Jeff Essmann, R-Billings, said he supports calling a constitutional convention to fix four or five items, not to completely rewrite the document.

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He believes deciding what constitutes a clean and healthful environment, which is in two parts of the constitution, should be left to the Legislature, not the courts, to decide.
“All of the other rights in the Bill of Rights limit the government actions on people,” he said. “Arguably, the language in Article 2, Section 3 (the right to a clean and healthful environment), has been used by people to limit other people.”
He also called for changing the current constitution’s provision that allows the Supreme Court to break a deadlock and appoint the fifth member and chairman of the commission that sets legislative boundaries after each census. Republican and Democratic political leaders in the House and Senate now each appoint one member. If those four members can’t agree on a fifth person as chairman, the Supreme Court picks the fifth member.
“That panel needs to be composed of four people, not five, and keep the Supreme Court out of Montana politics,” Essmann said.
Essmann also favors making it easier for the Legislature to provide local governments with immunity from lawsuits and requiring the state Board of Public Education run for office instead of be appointed