Guest Post: No Taxpayer Remedy

Jim NelsonJim Nelson, Montana Supreme Court Justice, (Ret.)

High-profile Montana Supreme Court cases usually get reported in the press. Often, however, important decisions are handed down without fanfare. Those opinions are the law of the State, nevertheless, and the Constitutional rights of Montanans are affected for better or worse.  

Case in point: Mitchell v. Glacier County, 2017 MT 258, handed down on October 25, 2017—a decision that has important consequences for taxpayers. Here’s why.

Article VIII, Section 12 of Montana’s Constitution requires that the legislature adopt laws so as to “insure strict accountability of all revenue received and money spent by the state and counties, cities, towns and all other local government entities.” In fulfillment of this Constitutional mandate the legislature adopted the “Montana Single Audit Act,” codified at § 2-7-501, et. seq. of the Montana Code.

This Act is complicated, but among other things it requires that local governments submit annual audit reports to the Department of Administration so as to ensure that the responsible local officials, properly manage the government’s monies and finances in accordance with state and federal requirements—to “ensure that the stewardship of local government entities is conducted in a manner to preserve and protect the public trust.”

One would think that if the responsible local government officials failed to properly discharge their fiscal responsibilities, the Department of Administration would be quick to require that the local government come into compliance with the law and do something about it if they didn’t.  One would also think that if the State chose to let the fiscal mismanagement slide, then the people being taxed by the local government could sue the local government and the State for failing to discharge their respective statutory and constitutional duties.  After all, it is those taxpayers’ dollars that are being protested, mismanaged and misspent.

Well, if that’s what you think, you’d be wrong.

In Mitchell, the Court held that in these circumstances, aggrieved taxpayers do not have “standing” to sue.  To simplify that legalese, the taxpayers are not injured; they have no dog in the fight.  And that is because the legislature gave the State officers who are supposed to “insure strict accountability of all revenue received and money spent by the state and counties, cities, towns and all other local government entities” discretion about how to enforce the Single Audit Act.  So if the State officers want to enforce the Constitutional mandate, they can; if they want to give County X or City Y a pass, they can do that too.

If that result strikes a sour note with taxpayers, it should.

The only way to fix this is for the legislature to take away the discretion granted under the Single Audit Act.  That is, to require the State officials responsible for enforcing the Act, to take action against miscreant local government officials.

Taxpayers should not be deprived of a remedy.  They should not have to watch their tax dollars misspent and mismanaged without any ability to have their day in court.

Call your legislator.

Jim Nelson

Montana Supreme Court Justice (Ret.)



10 Comments on "Guest Post: No Taxpayer Remedy"

  1. Sounds reasonable, except I’m concerned that the definition of “failure to properly discharge their fiscal responsibilities” might wind up being a bit subjective; that is, it might allow the state to bully municipalities on the basis of trumped-up accusations made by someone with a political agenda, much as the COPP uses its authority to harass Republican politicians. No?

    • Margerie is Art Wittich.

      • Is this the same Wittich found guilty of three counts of breaking campaign finance laws?

        • Yes, in a kangaroo court with rigged charges. My point.

          • … and in sharp contrast with the slap on the limp wrist that Bullock received for his far more egregious, blatantly illegal misuse of assets. COPP is the Attack Dog / Protection Agency for the Left.

            • Art, do you often dress up as a woman? NTTAWWI.

              I guess when you are a washed up political has been you have lots of time to post bullshit on an obscure website.

          • C’mon, Art. You lost on every count by a unanimous vote of the Supreme Court. You were guilty as a weasel leaving a chicken coop with a mouthful of feathers. Fortunately for you, there’s no charge available in campaign law for arrogant stupidity or you’d probably have ended up with hard time – years and years of it.

      • E.S. Herman could also be Marj.

    • @Margerie (Wittich?? Really??) The current specifics of the law allow the state to exercise its authority to enforce local compliance; it just doesn’t require the state to do so. That seems to me to be a situation that would allow the virulently partisan GOP majority in the Legislature to turn a blind eye to fiscal malfeasance by a Republican, while pursuing “trumped-up accusations made by someone with a political agenda” against a Democratic office-holder. How did the incredible misbehavior of the Ravalli Cnty Treasurer go unchecked for so long a couple of years ago? Justice Nelson’s proposal would reduce the chances of that, not exacerbate them.

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