The Montana Supreme Court ruled Wednesday that state legislators infringed on authority granted to higher education officials by the state Constitution by passing a law last year allowing individuals to carry open or concealed firearms on university and college campuses.
The unanimous decision struck down specific provisions of House Bill 102, which supporters had dubbed Montana’s “constitutional carry” law, on the basis that the law violated the Montana Board of Regents’ exclusive power to manage and control the Montana University System (MUS). Those provisions were already blocked by an injunction from a Lewis and Clark County District Court judge, whose ruling in the regents’ favor last November prompted Attorney General Austin Knudsen to appeal the case to the supreme court.
“The MUS appreciates the clarity provided by the Montana Supreme Court,” Helen Thigpen, deputy commissioner of government relations and public affairs for the MUS, said in an emailed statement Wednesday. “From the outset, the Board of Regents sought judicial review of HB 102 to determine the appropriate entity for setting policy for the state’s public colleges and universities. The Board of Regents values its strong partnership with the Legislature and will continue to work on shared goals and priorities to strengthen the state’s economy and provide world-class educational opportunities to Montanans.”
Cascade County District Court Judge John W. Parker sat in for Supreme Court Justice Ingrid Gustafson, who recused herself from the case in April.
Debate over HB 102 was a key feature of the 2021 Legislature. The bill was introduced early in the session, and passed quickly out of committee and between chambers even as higher education officials and other critics sought to see their concerns over the legislation addressed. Lawmakers eventually agreed to earmark $1 million for the university system to aid with implementation of the law, but made the funding contingent on the regents not taking the issue to court. HB 102 passed the House and Senate with exclusively Republican support, and Gov. Greg Gianforte signed it into law Feb. 18. The Board of Regents voted unanimously to file a legal challenge on May 19.
In its decision, authored by Justice Laurie McKinnon, the court leaned heavily on arguments made during Montana’s 1972 Constitutional Convention to establish its position that the Board of Regents enjoys considerable autonomy in matters affecting higher education in the state. According to the decision, that autonomy for the higher education system was intended to protect “independent and unfettered academic freedom” from “the growing power of the centralized, bureaucratic state.”
Though the decision acknowledged the Legislature does have limited financial and term-setting powers over the board and its members, McKinnon wrote that the Montana Constitution clearly entrusts the board with “full governance and control” over the university system. Forcing the regents to comply with HB 102, the justices agreed, would render the board “ministerial officers with no true authority other than to effectuate the Legislature’s will,” in direct contradiction to the constitution’s intent.
“By expressly proscribing the board from regulating firearms on MUS campuses, HB 102 functions as a legislative directive of MUS policy and undermines the management and control exercised by the board to set its own policies and determine its own priorities,” the decision reads. “The board, not the Legislature, is constitutionally vested with full authority to determine the priorities of the MUS.”
Rep. Seth Berglee, the Republican from Joliet who sponsored HB 102, took particular issue with that court interpretation Wednesday. Berglee said in a phone interview that the law actually gave the Board of Regents authority to regulate or prohibit firearms in certain areas, such as athletic facilities and on-campus sports or entertainment events. He added that those exceptions were included as a direct result of consultation with the regents.
“Essentially they got everything they asked for, with the exception of, ‘Hey, we don’t want you to allow them in any dorm rooms,’” Berglee said. “For the Supreme Court to come back and say I was tying their hands and they had no say in it, that’s just very intellectually dishonest.”
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Judge strikes down gun law on campuses
Lewis and Clark County District Court Judge Michael McMahon ruled Tuesday that Montana’s new constitutional carry law infringes on the authority of the Board of Regents, and barred the state from enforcing the law on college campuses. Attorney General Austin Knudsen is taking the case to the state Supreme Court.
The court also stated that minimizing loss of life by implementing campus-specific security and safety policies is “germane and necessary” to the board exercising constitutional authority. As McKinnon wrote, “while the mission of the Board is education, the reality is that campus safety and security is an integral responsibility of the Board and its mission.”
Kyler Nerison, a spokesperson for Knudsen’s office, criticized the supreme court’s decision in an emailed statement Wednesday.
“House Bill 102 was an historic expansion of Montanans’ rights and their ability to defend themselves,” Nerison wrote. “As the court notes in its opinion, being sheltered within a ‘gun-free zone’ hasn’t prevented students from being murdered on university campuses in Montana. The Montana Supreme Court’s decision today relegates university students and employees to second-class citizens, putting their rights and safety at the whims of an unelected governmental body that now has veto power over state laws it disagrees with.”
The court’s opinion cited two previous cases involving on-campus gun deaths in Montana: the 1990 killing of two students in a Montana State University dorm and a 1990 shooting at Helena’s private Carroll College that resulted in the death of one campus employee.
Asked whether Knudsen intends to appeal Wednesday’s ruling to the U.S. Supreme Court, Nerison wrote that his office is “considering our options.” As for the legislative branch, Berglee said he doesn’t see that the court “left any open area for the Legislature to be involved in this conversation.”
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