LETTER: Compact required only a majority vote

In reply to letter by Jerry Laskody (DIL 7/28/2016):

Following the ratification of the CSKT Water Compact by a majority vote of the 2015 Montana legislature, the Flathead Joint Board of Control filed a lawsuit over two immunity clauses in the Compact.

Judge Jim Manley found the FJBC was correct on one immunity clause. On this clause Manley ruled: “Therefore, the immunity provision is void for failure of passage as required by Article II, Section 18.”

Section 18 requires a two-thirds vote of the legislature to override the Constitution.

Judge Manley referred to Section 1-1-113(1) of the Compact’s Administration Ordinance which reads: “The provisions of this Ordinance are severable, and a finding of invalidity of one or more provisions hereof shall not affect the validity of the remaining provisions.”

Therefore, Manley ruled: “The Court … declares that the unconstitutional immunity provision can be voided without voiding the entire statute.”

Manley commented: “This immunity provision does not appear to be central or pivotal in the overall compact scheme.”

In summary, the premise to Manley’s argument is: Because the court found a clause in the Compact required a two-thirds vote but the legislature approved the Compact with a majority vote …

Judge Manley ruled: Therefore, the clause is invalid but the rest of the Compact is valid.

Compact opponents argue: Therefore, the whole Compact is invalid.

Judge Manley is correct. Opponents are incorrect.

The Compact required only a majority vote to pass the legislature because the Compact allows courts to invalidate any parts the court finds required a two-thirds vote.

—Ed Berry, Bigfork