The Montana Constitution’s state university quagmire

One reason Montanans should opt for a new state constitutional convention in 2030 is that the 1972 constitution is plagued by poorly written language. The ensuing lawsuits give lawyers and judges power that belongs to the people and their elected representatives.

Illustrative are the provisions governing the Montana University System (MUS).

The document says, “The government and control of the Montana university system is vested in a board of regents . . . which shall have full power, responsibility, and authority to supervise, coordinate, manage and control the . . . system.” - Article X, Section 9(2)(a).

This language seems to mean that the board is a fourth branch of government, with legislative, executive, and judicial power over the campuses.

But the constitution also says that there are only three branches of government: legislative, executive, and judicial (Article III, Section 1). Further, it vests the legislative power only in “a legislature consisting of a senate and a house of representatives” (Article V, Section 1) and vests judicial power only in the courts (Article VI, Section 1).

Still another section reads, “The executive branch includes a governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction, and auditor” (Article VI, Section 1). It does not mention the regents.

By this time, you might be wondering how the board can have “full power”—or any power at all—if it has no legislative, executive, or judicial authority?

But it gets worse: The “full power” language is contradicted by the section that immediately precedes it. It gives the state board of education, not the regents, responsibility for educational long-range planning, program evaluation, and budget requests.

Obviously, in the Montana Constitution, “full power” really doesn’t mean “full power.”

Is There a Way Out?

From the standpoint of a competent constitutional lawyer, there is no perfect path out of this quagmire. The least-bad way is to interpret the constitution to mean: “The list of executive agencies (Article VI, Section 1) says it 'includes' certain offices. But there can be others as well. The board of regents is an additional executive agency.”

This interpretation gives the regents a constitutionally protected position. But its “full power” is executive only. Like other executive agencies, the board is subject to policies adopted by the people and their elected representatives and must enforce them.

Unfortunately, instead of adopting the least-bad way out, the Montana Supreme Court has wandered deeper into the swamp.

Confusion on Confusion

In 1975, the court ruled that the legislature may not control university administrators’ salaries. The justices went on to say that sometimes the legislature may use the appropriation process to limit the regents and sometimes the legislature may not. We, the justices, will decide when.

The court did add that the board should govern “academic, administrative and financial matters of substantial importance to [MUS].” This suggests that the legislature still controls issues of general public policy.

But in 2022, the court exempted the regents from a state law protecting the right to keep and bear arms. Then, in 2024, the court allowed the regents to opt out of state laws on free speech and transgender sports.

The effect of these decisions is to give an appointed board unreviewable legislative authority over MUS campuses. This not only violates the best reading of the state constitution, but also may infringe the U.S. Constitution’s requirement that each state have a “republican form of government.”

The drafters of the 1972 constitution created a problem that other state constitutions have managed to avoid. But because of the Montana Supreme Court’s restrictive rules on constitutional amendments, only a new convention can fix it.