Category Archives: Judicial

Montana is at the Forefront of National Fight Against Election Corruption

A Montana case is the next battle in the fight to keep elections from being for sale to the highest bidder by keeping campaign finance limits in place.

Now, a group of leading national legal non-profit advocacy groups including Free Speech for People, former Montana Supreme Court Justice James Nelson, the American Independent Business Alliance,  the American Sustainable Business Council.the Campaign Legal Center, Common Cause, Justice at Stake and the League of Women Voters are joining Montanans in the fight to keep Montana’s campaign finance limits in place.

The groups joined the defense of Montana’s campaign finance limits with an amicus brief and and amici brief in Lair v. Motl.  They are urging the U.S. Court of Appeals for the Ninth Circuit to overturn a District Court ruling that struck down Montana’s political campaign contribution limits.  Earlier, a District Court disregarded both Ninth Circuit and Supreme Court precedent to overturn Montana’s limits on contributions to state candidates, including judges, from individuals and political parties.

In Lair v. Motl, American Traditions Partnership board member Doug Lair wants campaign finance limits abolished.  Several prominent Republican office holders and candidates in Montana caught up in the infamous Meth House Scandal, in which documents belonging to the infamous American Tradition Partnership (ATP), were found in a Colorado meth house.  The documents incriminated TEA Party Senate leader Art Wittich, Mike Miller, Derek Skees, Pat Wagman, Jerry O’Neil, Bob Wagner, Dan Kennedy, Scott Mendenhall, Wendy Warburton, Ed Butcher, and Tom Burnett to name a few.  Wager, Burnett, Miller, O’Neil and Wittich are currently running for office.

Here’s how Ron Fein, Legal Director of Free Speech For People, explains it:  “Campaign contribution limits are justified by an interest in ensuring political equality for all, regardless of access to wealth. When political equality is jeopardized, democracy itself is at risk.”

Justice James Nelson, a former Justice of the Montana Supreme Court, and on of the court’s most respected justices, said, “Candidates for political office and elections should not be for sale to the biggest spenders. The Supreme Court has decreed that money equals speech; and contribution limits help to level a playing field tipped in favor of the big spenders by Citizens United.”  I could not agree more.

The District Court overturned the Montana’s candidate contribution limits applicable to individuals and PACs, even though the limits have already been upheld by the Ninth Circuit.

In addition to the limits on candidate contributions from individuals and PACs, the lower court struck down Montana’s limits as they apply to contributions from political party committees. Montana does not limit the amount that any individual or PAC may give to political parties, but instead restricts the “aggregate” amount a candidate can receive from his or her political party.

Surprisingly, the issue hasn’t been covered by Montana news outlets, even though its the next step in a nationwide battle to protect America’s and Montana’s elections from corruption.

After all, this case comes on the heels of the Supreme Court’s recent decision in McCutcheon v. FEC, which struck down longstanding limits on the total amount of money wealthy individuals could contribute to federal candidates in an election cycle. As with the Citizens United ruling which now allows unlimited corporate dollars into our elections, the high court’s McCutcheon decision is unleashing further money into the political process from wealthy interests.

We’ll see if it gets more attention by Montana reporters after the op-ed by Justice Jim Nelson and Ron Fein appeared in yesterday’s Billings Gazette.

Four Reasons the Affordable Care Act Is Not Going Anywhere

TEA Partiers briefly went nuts this morning.  That’s because a D.C. circuit court’s three-judge panel ruled that Congress did not intend for anybody in states that use the federal healthcare.gov marketplace to get the insurance subsidies available to people in other states.

But the frenzied celebratory consumption of snack cakes was short lived.  Just hours later a three-judge panel in the Fourth Circuit Court of Appeals found that Congress did intend people receiving coverage through the federal government to get subsidies.

The issue at stake here is of particular interest to Montanans because we’re one of the 27 states that uses the federal healthcare.gov marketplace.

But the Affordable Care Act subsidies aren’t going anywhere.  Here’s why:

1. The DC appeals court decision was made only by a three judge panel, not the full DC court of appeals.  The federal government says it will appeal to the full DC court of appeals. This means that all eleven judges would review the ruling.  The D.C. Circuit as a whole is much more liberal than the panel of three judges who heard the case.  It has seven judges appointed by Democrats and only four appointed by Republicans.  This means that the full court is likely to reverse the earlier decision.

2. The Fourth Circuit also liberal-leaning, so even if the Affordable Care Act’s opponents requested a full review to the Fourth Circuit, their ruling upholding the Affordable Care Act would still stand.

3.  As Vox reported earlier today, this means full panels of both circuit courts are likely to uphold the Affordable Care Act subsiies.  This means the Supreme Court is actually less likely to weigh in.  They are more likely to get involved with cases when  two lower courts with inconsistent rulings.  Of course they can choose whether to weigh in or not.

4. Finally, its pretty ludicrous to try to argue that Congress intended that the subsidies would only apply in states that run their own health insurance marketplaces.  “It is…clear that widely available tax credits are essential to fulfilling the Act’s primary goals and that Congress was aware of their importance when drafting the bill,” the Fourth Circuit Court ruled. Experts up and down the line agree that they couldn’t possibly have meant anything else.

The impact to tens of thousands of Montanans and millions of Americans who would no longer get a price break on insurance would be devastating.

Commissioner of Securities and Insurance Monica Lindeen reported recently that there are 30,000 people who were previously uninsured who gained coverage in Montana under the Affordable Care Act.  If the subsides were stripped from these middle class and low-income people, their premiums would have been an average of 76 percent higher in price than what they are paying now. Many of these people would no longer be able to afford health coverage.

If the DC panel’s ruling were upheld it would be one of the most devastating blows to middle class America in the nation’s history. It puts into perspective just how devastating a blow a faction of TEA Party legislators dealt Montanans last session.  That’s when they voted to bar Montana from accepting the money to pay for 100% of the health care coverage costs for 70,000 working poor Montanans.

Montana uses the federal healthcare.gov marketplace because the Montana legislature rejected two bills in 2011 to create a state-based marketplace: HB 124 and HB 620 .

You can read the DC Circuit Court of Appeals anti-Affordable Care Act 2-1ruling here: Halbig v. Burwell,No. 14-5018 (D.C. Cir. July 22, 2014)

The Fourth Circuit ruling upholding the Affordable Care Act 3-0 is here: King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014).

 

Barry Beach Tries for Clemency, Again

Barry Beach, serving a 100 year prison sentence with no possibility of parole, has applied to the Montana Board of Pardons for clemency.  If he gets what he wants then the Board will recommend to Governor Bullock that Beach be made eligible for release, having now served 30 years in prison for a 1983 crime he says he did not commit. Bullock could then accept or reject the recommendation.

An all-star lineup of politicians has written letters on Beach’s behalf including Conrad Burns, John Tester, Brian Schweitzer and John Bohlinger.  Bullock’s duty as Attorney General was to argue in support of Beach’s conviction, but that doesn’t preclude him from now allowing Beach to be paroled.  But this is all assuming that the Board gives Beach a favorable ruling.  If the Board turns Beach down then it’s the end of the line for Barry.  He will live out the rest of his life in prison unless he lives to the age of 118.

In 2011, a district Judge in Lewistown ordered Beach released after a hearing was held in which new doubt about his conviction was raised.  Six months later the Supreme Court overturned the order and sent him back to jail.  Beach took advantage of his freedom and started his own business, and otherwise lived out his brief respite without incident.

The doubts surrounding Beach’s conviction are well known to anyone who has followed the sizable amount of journalism on the case.   The short story is that his conviction was based entirely on a confession, which he says was coerced by the policemen who had him in custody.  There was no forensic evidence of any kind that tied Beach to the crime.

The Missoula Independent did a very thorough write-up a few years ago, which I encourage you to read.  To summarize, in 1983 Beach was convicted of the murder of Kim Nees, a high school classmate.  Beach was 17 at the time of the murder.  There were many fingerprints and footprints found at the crime scene, which was a muddy river bank where Kim Nees’s body was found face down in shallow water not far from her truck.   None of these prints matched Beach.  There were eyewitnesses who told police investigators that they had seen a gang of women in the truck with Nees shortly before she was murdered.

Beach was arrested in Louisiana three years later, for a misdemeanor.   While in custody, the police took his confession to four murders, three local murders and the Nees murder, which they learned about after calling up to Poplar Montana to ask local police about Beach.  The three local Louisiana murders which Beach confessed to were later determined to have nothing to do with him because he hadn’t even been in the state at the time of their occurrence.

Beach has always claimed that his confession to the Nees murder, in which he admits to beating Nees with a wrench for rebuffing his sexual overtures, was coerced with deprivation, intimidation, threats of torture and the electric chair, and many deceptive promises made to him by the four officers who were present when they took the confession.   The confession was taken in a notoriously corrupt Louisiana sheriff’s office. There was a tape recording of Beach’s confessions including his confession to the Kim Nees murder, but it vanished, as did all of the physical evidence collected at the crime scene, including items such as cigarette butts with unidentified fingerprints on them.

And then there was the prosecutor, the future Governor Marc Racicot who tried the case. In his opening statement to the jury, Racicot announced that he would soon be showing the jury a single pubic hair that had been discovered on the sweater of the victim and which had similarities to Beach’s hair.  But Racicot never produced any such piece of evidence.  Worse, he referenced the hair a second time, in his closing statement.

Racicot also called to the stand one of the the Louisiana cops who took Beach’s confession, an officer named Jay Via.  Via testified that Beach’s Louisiana attorney was in the interrogation room when Beach confessed. But Beach’s attorney, upon hearing this (he was in Louisiana during the trial), denied it vehemently in a sworn affidavit, essentially accusing Racicot and Via of perpetrating a blatant lie into evidence.

Three local girls (two of whom had immediate relatives who were working in the Poplar police department at the time of the murder, including one who broke into the evidence room during the trial) were among the initial suspects, in part because they were known to hold a strong animus against the victim.  In the years since, a number of locals in Poplar have come forward to say that they have heard first hand admissions of guilt by at least two of these women.  These locals testified at the 2011 hearing that led to the release of Beach by district judge E. Wayne Phillips who presides in Lewistown.

Judge Phillips, you will appreciate, used to work for Tea Party wingnut Art Wittich  when Wittich was counsel to GOP governor Stan Stevens.  So Phillips is no bleeding heart, apparently, and might even be a Tea Partier.

Montana Attorney General Tim Fox has stated that Beach should remain in prison for the next 70 years because he confessed and was convicted, and thus is guilty.  This has been the line out of the AG’s office since the early 2000s.

Nobody will ever know what took place on the night that Kim Nees was murdered, nor has Beach proved his innocence despite what his advocates might say.  Innocence cannot be proven here, I suppose, unless one of the other suspects admits under oath or on video tape to having committed the murder.

But given the history of this case and the facts surrounding the trial, it’s hard to imagine that the Board of Pardons would not at least make a recommendation to the Governor that Beach’s sentence be restructured so that he can apply for parole.  We should all be concerned with a case in which a 17 year old kid gets sent away for life with no possibility of parole, in which an a prosecutor with political ambitions presents lies to a jury to substantiate his case, in which a questionable confession is the sole piece of evidence, and in which much evidence was destroyed or simply disappeared.

This is Beach’s third try at clemency.  The first time he represented himself.  On his second try he was represented by pro bono attorneys from Centurion Ministries, an outfit which has freed over 100 wrongly convicted individuals, usually on DNA evidence but sometimes on false confessions.  That was in 2006, and he sought a full pardon and a declaration of innocence.  He lost.  This time, he is simply seeking a commutation of his sentence to time served.   We will see how he does.

Even if he had been proved guilty with overwhelming evidence, I might still support an opportunity for parole after 30 years of prison given his age at the time of the crime.  In fact, the U.S. Supreme Court no longer allows life without parole to be meted out to a minor, even in cases in which guilt is overwhelmingly obvious.  But with the amount of doubt surrounding his conviction, justice probably requires Beach to be free now.

Fox apparently disagrees.  I’d be interested to know how Racicot feels.  All Racicot has ever said to the press is that he has “no doubt that Barry Beach is guilty as charged.”   That was in 2007.  He has not specifically ever addressed the size of the sentence, and whether it might be a tad too heavy given the case history.  My guess is that we won’t hear from Racicot on this issue.  Because he probably knows, in his heart, that parole eligibility would be proper; and yet to express support for it would be to admit that he has doubts in his head about what he did in the courtroom in 1983.

Billings Judge Tries Various Apologies; Demonstrations Planned

A few more points on the Billings verdict.

First, Judge Baugh today apologized for saying that a fourteen year old statutory rape victim was “older than her chronological age” and “was as much in control of the situation” as her 54-year-old assailant.  He stands by the sentence (30 days in prison), which is less a slap on the wrist than a high five. And said he will soon be issuing an addendum to bis decision, an explanation of why he ruled as he did.

It did take him two tries to apologize.  His first was a non-apology apology–saying,  “It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”  He was then forced to issue a second apology later the same day.

There has been much speculation as to Baugh’s politics.  I’ve been contacted by numerous Billings persons who say he is very conservative, a chummy old boy in the Yellowstone county club of crusty old right-wingers.   Baugh has also run unopposed three times since 1984, and is up for election again in 2014.  He is originally from Texas and, for all of you NFL bluffs, is the son of hall-of-fame quarterback Sammy Baugh of the Washington professional football team some refer to as the Pigskins.

As for the ruling, realize that the sentence was for a violation of the terms of a deferred prosecution agreement.  The original sentence was for no jail time whatsoever–just treatment.

You see, amid the original prosecution for statutory rape, Cherice Moralez, the 14-year-old victim, killed herself.   According to today’s press, the prosecution felt that they would not be able to get a conviction without her live testimony.   They made Rambold a deal–go to treatment for three years, but sign a confession first.  Rambold went to treatment but violated the terms (for example, he failed to report to his counselor that he had sex with another adult), and these violations, minor though they were, effectively re-empowered prosecutors, who held a signed confession of his crimes, to get the judge to issue a stiffer sentence commensurate with the original crime.

But, Judge Baugh decided that 30 days in prison is enough.  One question which I raised yesterday is whether the race or ethnic origin of the victim, who appears to be a Latina girl, played a factor in the lenient sentence.  That was speculation on my part, but it remains an open question, which will likely not be answered.  Neither the context of the 30 day sentence, the original “no jail time” sentence, nor the girl’s ethnicity was reported by the initial Gazette “30 days” story, which was a big mistake.

Demonstrations are being planned by women’s groups in Billings for tomorrow, and petitions are being circulated for the judge’s removal.  The judge, technically, could be recalled, impeached, or disciplined within the court system.

Corruption Defines Montana’s 2012 Elections

Montana’s 2012 elections will go down in history–but not in a good way. Rather, this cycle will be remembered for corruption, lies, deceptive ads, illegal donations, apparent illegal coordination with third-party groups, and secret corporate money.

The season was kicked off with TEA Party Republican legislator Jason Priest secretive “Montana Growth Network” buying the Supreme Court race for TEA Party judge Laurie McKinnon. Priest’s shadow group spent more on one saturation mailing then the conservative candidate he was backing had raised for her entire campaign.

McKinnon, who dog whistled at Lincoln Reagan dinners across Montana about “judicial activism,” “strict constructionist” and other conservative buzzwords, was able to defeat the leading candidate Elizabeth Best in the primary–in spite of reports of alleged Judicial Code of Ethics violations reported in Montana papers across the state.   Priest’s  “Montana Growth Network” is thought to be one of the American Traditions Partnership’s many spinoffs.

Indeed no group has been more insidious than American Traditions Partnership in corrupting Montana’s elections.  ATP’s launched it’s biggest attack on Steve Bullock.  It mailed a fake newspaper to hundreds of thousands of Montanans depicting Bullock in a line-up of sex offenders.

In a brilliant piece of investigative journalism, the PBS show Frontline has revealed the seedy underbelly of secret money in Montana’s elections, with a full-hour expose of Montana politics and this secretive right-wing group.  Under state law, third party groups, the ones like American Tradition Partnership which spend masses of unregulated, unreported money, are legally barred from coordinating with candidates.  But several legislative candidates and the ATP have been caught red handed, working together, in apparent violation of the law, the Associated Press reports today.

ATP even sent mailers impersonating unions– using the unions’ logos–to attack local candidates that the unions have actually endorsed.

ATP wasn’t alone, unknown corporate groups dumped half a million dollars in illegal into Rick Hill’s campaign coffers, forcing a  judge to issue a restraining order against Hill to stop him from spending the illegal cash.  The Montana GOP claims the donation came from the Republican Governor’s Association, but shortly before the RGA sent the dough to the Montana GOP, that an entity calling itself the  ”Montana Law Foundation” sent $200,000 the the RGA. There’s only one reason that a fake Montana group would donate to the RGA instead of the Montana Republican Party and that’s to hide the donation’s source.

Tim Fox, the Montana Republican lunatic who is running for attorney general despite having never done anything other than defend drunk drivers and call for rape victims to have the rapists’ babies, got some national Republican donors to buy $700,000 of TV advertising on his behalf.  Fox Fox refused to reveal his true extremists beliefs.   Instead, he hid behind the hundreds of thousands of dollars in advertising that his corporate bosses– including the Koch brothers, the insurance industry and the cigarette companies put up to hide the truth.

Montana’s U.S. Senate race has also drawn a deluge of dark money aimed at defeating Jon Tester and replacing him with scandal-plagued extremist Dennis Rehberg.

Tonight, Montana citizens will find out whether ATP and groups like it will completely own our state and federal governments–using lies, deception, illegal activity and corporate money to install their candidates into office, from a P.O. Box, without ever revealing who their donors really are.

Watch FRONTLINE Expose: Big Sky Big Money Online Here

Tonight, the PBS investigative series FRONTLINE takes a look at the out-of-state groups working to buy our local elections.

The show looks into the files on 23 right-wing Montana candidates were found in a meth house in Colorado in a box labeled “Montana $ bomb.” The files contained information about how the American Tradition Partnership is manipulating Montana campaigns and elections.

Here’s the video:

Watch Big Sky, Big Money on PBS. See more from FRONTLINE.

Federal Judge Strikes Down All Montana Donation Limits

Leaving an entire state with mouths agape, a right-wing federal judge in Montana today ruled that all campaign contribution limits for political candidates are—unconstitutional.

Like every other state in America, Montana sets rules on how much cash you can give to a campaign. A Gubernatorial campaign may take $630 from an individual, Attorney General candidates $310, state legislators $160, and so on down the line.

But Judge Charles Lovell, a Reagan appointee who hails from a family of right-wing operatives (more on that later), has decided that these laws–which have been on our books (and every other state’s books, and the federal government’s books) for most of our history–violate the First Amendment.

This has nothing to do, mind you, with the Supreme Court’s Citizens United decision protecting corporate money in politics.  This is about limits on individual donations.  Because of this ruling, the Koch brothers may now write a personal check for an unlimited quantity to any Montana candidate of their choice.

The basis of the Judge’s ruling?  “Campaign contribution limits prevent candidates from amassing campaign resources,” he wrote.

Huh? Yes, Your Honor, that’s the point of having such laws.  They limit the amount of resources that a candidate can amass, a byproduct of restricting the amount of resources that one individual (like the Koch brothers or George Soros) may give a candidate, which prevents the buying of influence.

This is a truly bizarre ruling, and I am sorry to say this, but I believe that Judge Lovell must either be drunk, demented, stupid or simply corrupt.  My guess is the latter.  Lovell knows that if you get rid of contribution limits, you give an edge to the GOP, because the GOP has more wealthy donors than Democrats.  For this reason, I believe, Lovell has waited until the day that voting has begun (overseas ballots started coming in this week), so that by the time a higher federal court can overturn this idiotic ruling, it will be so late in the game that it will be moot.

And the most insidious part is that the judge issued the order, and said in the order that he would not issue an actual written decision until some future date.  So he provided no reasoning at all except for the single quote I provided above.  You see, he was in a huge rush to protect everybody’s First Amendment rights.

So for now, Montana apparently has no campaign donation limits at all.  With the stroke of a pen, a federal judge has invalidated them.  Intelligent Discontenthas a post up on the ruling that you’ll want to read too.  UPDATE: James Conner at the Flathead Memo also has a post up entitled “Let’s not let Judge Lovell’s campaign contributions crisis go to waste.

This follows on the heels of other right-wing lunacy from the federal Montana bench. A while back, a federal judge was caught sending racist emails to his friends about Obama.

In the instant case, by the way, the Judge’s son, Lance Lovell is also a lawyer, spends much of his time getting his name in the newspaper by bringing suit against the Democratic Governor, Brian Schweitzer.  So using the courts for purposes of advancing Republican Politics is all in the family with the Lovells.