Regents will take constitutional carry to court
May 26, 2021
The Montana Board of Regents announced last week it will push for a judicial review of the state's new "constitutional carry" law, which is poised to allow students and university staff to carry concealed weapons on campuses across Montana beginning June 1.
The regents were expected next week to review an implementation strategy for House Bill 102 developed by the Office of the Commissioner of Higher Education. But after a weeks-long effort to gather public feedback, the regents met virtually Wednesday to discuss potential litigation. All seven regents voted in favor of directing OCHE to file a lawsuit seeking clarity about whether the law encroaches on the regents' constitutional authority over the university system.
"The Board recognizes that members of our communities have many diverse viewpoints, and, in particular, on whether firearms should be allowed on campus," the regents said in a joint statement released Wednesday. "It was this feedback from Montanans that helped inform the Board decision to pursue this judicial review. We look forward to a resolution of this issue and will continue to focus on ensuring the safety of students, faculty, and staff, and all those who visit our campuses."
OCHE spokesperson Karen Ogden told Montana Free Press that no complaint has yet been filed, and that the next step is for OCHE to establish a legal team to handle the regents' directive.
Rep. Seth Berglee, R-Joliet, told MTFP Wednesday that he is "disappointed" by the regents' decision to litigate the issue. Berglee sponsored HB 102, and said he worked closely with OCHE to address various concerns about the bill's impacts on Montana campuses. Those discussions resulted in changes to HB 102 that pushed the effective date for campuses back to June 1 and allowed the university system to restrict concealed carry in certain facilities. Berglee also established a $1 million fund to help OCHE implement the law. That funding was contingent on higher education officials not pursuing litigation over HB 102. Now that they have, Berglee said, the funding is "off the table."
The question of whether HB 102 violates the regents' constitutional authority was initially raised in a legal review note, and became a point of debate among lawmakers early in the session. As noted in the legal review, regents have challenged legislation on similar grounds before, specifically in a 1975 lawsuit involving legislative limits on salary increases for university officials. In that case, the Montana Supreme Court ruled in the regents' favor.
During a virtual hearing session held last week, the regents were routinely encouraged by members of the public to challenge HB 102 in court. As in legislative testimony, many individuals expressed concern for the health and safety of students and staff across Montana's university system under the new law. Mae Nan Robinson Ellingson echoed those concerns in public comment before the regents Wednesday, noting that she was a delegate to the 1972 Montana Constitutional Convention that established the regents' authority.
"This constitutional grant of power to the Board of Regents in 1972 was hard-fought and considered a very significant victory for the independent governance of the Montana system of higher education," Ellingson said. "It heralded the end of legislative or attempted legislative interference in matters of academic freedom that were well documented through the state's history up to 1972. You have the obligation, in my opinion, to preserve this hard-fought and important grant of power."
Berglee characterized the constitutional circumstances around HB 102 as markedly different from the regents' previous lawsuit, noting that the bill cuts straight to an individual right protected under the Second Amendment.
"The university system is still under the constraints of the Constitution, I would assume," Berglee said. "So, I don't think they have the ability to ignore other areas of the Constitution because the Constitution gives them the power to do that. No branch of government has the ability to supersede the Constitution."
Editor's Note: This article was originally published by Montana Free Press. For more information, visit http://www.montanafreepress.org.