JACK B. GEHRING, Plаintiff and Appellant, v. ALL MEMBERS OF THE STATE OF MONTANA 1993 LEGISLATURE, ALL MEMBERS OF THE MONTANA SUPREME COURT, Chief Justice J. A. Turnage, John C. Harrison, William E. Hunt, Sr., Fred Weber, R. C. McDonough, Karla Gray, Terry N. Trieweiler; GOVERNOR MARC RACICOT and ATTORNEY GENERAL JOSEPH P. MAZUREK, Defendants and Respondents.
No. 94-166.
SUPREME COURT OF THE STATE OF MONTANA
Submitted on Briefs November 16, 1994. Decided February 6, 1995.
269 Mont. 373 | 889 P.2d 1164 | 52 St.Rep. 34
For Respondent: Honorable Joseph P. Mazurek, Attorney General; Deanne L. Sandholm, Assistant Attorney General, Helena; Mike McGrath, County Attorney, Helena.
HONORABLE JAMES E. PURCELL, District Judge, delivered the Opinion of the Court.
We find the following issues to be dispositive:
- Did the District Court err in determining that the members of Montana‘s Fifty-third Legislature did not violate the 1972 Montana Constitution by fixing their own compensation?
- Did the District Court err in determining that Gehring‘s right to peaсeably assemble and petition the government for redress was not violated?
On December 16, 1993, Gehring filed a complaint in the First Judicial District Court, Lewis аnd Clark County, Montana. He asserted two substantive claims. First, he claims that the 1993 Montana Legislature violated
Second, Gehring alleges he deliverеd “Notice and Petitions” to Montana‘s Governor, House of Representatives, Senate, Clerk of the Supreme Court and Attorney General. Gеhring claims that he did not receive any responses from his Notice and Petitions. He therefore argues that all the above named defendаnts violated his right to peaceably assemble and petition for redress of governmental action as guaranteed by the
On March 10, 1994, the District Cоurt dismissed Gehring‘s complaint, finding that he had failed to state a claim upon which relief could be granted. On March 28, 1994, Gehring filed a notice of apрeal with the Clerk of the Montana Supreme Court. Accompanying his notice of appeal was a request that the sitting Justices of the Montаna Supreme Court be disqualified, as they were parties to the subject litigation. On August 25, 1994, Chief Justice Turnage, on behalf of the Montana Supreme Court, issued an order requesting Gehring to show cause why his case should not be dismissed for failure to file an appellate brief. On August 31, 1994, Gehring responded that the rules of appellate procedure were unduly complicated and conflicted with the United States and Montana Constitutions and asked that his appeal go forward on the merits of his district court complaint. Gehring also reasserted his request that the sitting Justices of the Montana Supreme Court disqualify themselves.
On September 14, 1994, the Montana Supreme Court issued an order recusing itself and appointing five district court judges: James
We also concluded that Gehring‘s оriginal petition was insufficient and did not constitute an Appellant‘s Brief as required by the Montana Rules of Appellate Procedure. Gehring subsequently filed an Appellant‘s Brief on October 19, 1994.
Issue 1
Did the District Court err in determining that the 1993 Montana Legislature did not violate the 1972 Montana Constitution by fixing its own compensation?
Gehring claims that the 1993 legislature established its own compensation in violation of the Montana Constitution.
Each member of the legislature shall receive compensation for his services and allowances provided by law. No legislature may fix its own compensation.
This section provides that while legislators are to be compensated for their services, no given legislature can establish the amount of its оwn compensation.
[L]egislators are entitled to a salary commensurate to that of the daily rate of an entry grade 8 classified state employee in effect when the regular session of the legislature in which they serve is convened under
5-2-103 for those days during which the legislature is in session....Legislators are entitled to $50 a day, 7 days a week, during a lеgislative session, as reimbursement for expenses incurred in attending a session. Expense payments shall stop when the legislature recesses for more than 3 days and shall resume when the legislature reconvenes.
Each legislative assembly is a distinct and separate entity. Construing a similar clause restricting the power of the legislature to fix its own compensation found in the 1889 Montana Constitution, this Court stated:
We think it is evident that the Constitution fixed the compensation of the members of the first legislative assembly of the State, and conferred upon that body the power to enact appropriate laws for the payment of its successors. Such legislation can be аmended at any time, subject to the restrictions that no legislative assembly can pass a law which defines its own compensation.
State ex rel. Harrington v. Kinney (1891), 10 Mont. 410, 412, 25 P. 1022, 1023.
The compensation and expense reimbursement for the Fifty-third Legislature was established by the Fifty-second Legislature. The Fifty-third Legislature did pass laws approрriating money necessary to pay for the cost of the legislative sessions. However, these laws merely made the funds available. The amount of compensation was already fixed. We conclude that the District Court did not err in determining that the Fifty-third Legislature did not fix its own compensation in violation of
Issue 2
Did the District Court err in determining that Gehring‘s right to peaceably assemble and petition the government for redress was not violated?
Gehring alleges he sent “Notice and Petitions” to various members of the state government, all of which went unanswered. He claims that since his petitions аllegedly fell on deaf ears, his right to petition the government for redress has been violated.
We also find the substance of Gehring‘s petitions to be without merit. Gehring demanded that the resрondents “cease and desist any transaction concerning money ....” He claims the use of paper money is void under
We conclude that the District Court did not err in determining that Gehring‘s right to peaceably assemble and petition the government for redress was not violated. We affirm the decision of the District Court.
DISTRICT JUSTICES MIZNER, RODEGHIERO, LARSON and LYMPUS concur.