WASHINGTON, D.C. (PRWEB) June 22, 2012
Montana Attorney General Steve Bullock’s office issued contradictory and confusing statements to a reporter on Thursday that indicate he doesn’t understand his own litigation strategy in Montana’s current Supreme Court battle against Citizens United, the Court’s controversial 2010 election finance law ruling, says The Eleventh Amendment Movement (TEAM), a non-partisan advocacy group.
The attorney general's statements, which then appeared Friday in a Great Falls (MT) Tribune newspaper article, also seemed to confirm an earlier message from the attorney general’s office that winning the case is a secondary “distraction” from some other, possibly political objectives, says TEAM.
TEAM (http://www.11thAmendment.org) had filed a brief in support of Montana in the case, American Tradition Partnership v. Bullock, and says that reporter John Adams asked them for comments about statements made by the attorney general’s office criticizing TEAM’s brief. TEAM’s attorneys responded that the attorney general’s statements showed a “distinct and troubling lack of understanding about the fundamental nature of the case and Montana’s own defense, as well as some factual misrepresentations of law and the U.S. Constitution.”
TEAM’s brief argues that the Constitution’s 11th Amendment forbids a private corporation from suing a sovereign state in federal court, as in this Montana case, and the Court must refuse jurisdiction, allowing Montana to win immediately and continue to enforce the state’s anti-corruption election finance laws in defiance of Citizens United.
Also troubling, TEAM says, is Montana’s obstinate refusal to raise any basic jurisdictional challenge that could help win the case for Montana with no legal downside risk, as is reflected in the attorney general office’s Thursday statements: “[Montana’s] briefs focus on what this case is actually about: money in state politics and whether the court opened the floodgates of corruption in the states when it decided Citizens United” and “Attorney General Bullock will not be distracted from the real issues presented in this case.”
Attorney Carl Mayer, counsel for TEAM, responded, “The attorney general seems oddly confused. Preventing the Supreme Court from unconstitutionally dictating to Montana about their election laws is actually what this case is primarily about. Corrupting money in politics is important, but Montana’s own brief asked, first and foremost, for the Court to stay out of Montana’s business and not hear the case at all, in which event Montana wins immediately. To now say that is not a ‘real issue’ of importance, a ‘distraction,’ and is not their objective is counterproductive, especially when the winning 11th Amendment jurisdictional argument is available to help win the case, but is being ignored. What could be a more important ‘real issue’ than winning the case?”
“Fortunately,” Mayer added, “Montana can still file a simple one page motion anytime before the Court may rule on Monday morning. We provided this document to them weeks ago and it can assuredly help raise the winning jurisdictional challenge. There is no legal downside to filing this motion right away. It’s basic litigation strategy that any law professor would teach and advise, to challenge jurisdiction whenever possible.”
Adam Furgatch, co-founder of TEAM, said that “every sentence of Montana’s statement had some misrepresentation or factual error about it. It was bizarre.” He specifically pointed to one “weird statement” from the attorney general that showed “a basic misunderstanding of not only the Constitution but also of the 11th Amendment briefs, which they have purported to have read and now are qualified to criticize.”
The “weird” statement Mr. Furgatch referred to was this: “The briefs filed by the 11th Amendment folks do not directly address Citizens United, but instead rely on a questionable legal theory that would basically allow states to avoid application of the federal Constitution.”
Mr. Furgatch commented, “Do they think the 11th Amendment is somehow not part of the Constitution? Contrary to the idea that the 11th Amendment would 'allow states to avoid application of the federal Constitution,’ it's actually quite the opposite...TEAM’s argument allows the precise application of the Constitution's 11th Amendment limitations to the federal court’s jurisdiction to WIN THE CASE.”
He added, “All arguments put before the Court are, by definition, ‘questionable legal theories’ until the Court rules. Our briefs cite previous Court opinions from all five conservative pro-Citizens United justices as supporting 11th Amendment principles in similar cases. Is the Montana attorney general calling the justices’ own opinions and Court precedent ‘questionable theory?’”
Mr. Furgatch noted finally, “In this case, where four justices are already opposed to Citizens United on the merits, only one justice needs to be persuaded by our side of the question to make this the winning argument. Perhaps, it’s more questionable as to why Mr. Bullock is not doing ‘all he can to defend this (case)’ as he has publicly claimed. Why is Montana not putting forth all reasonable and legal claims to their constitutional, sovereign rights to help them in this case, as their politicians are claiming to do?”
In Friday's Great Falls Tribune article, Assistant Attorney General James Molloy was reported as saying that “the justices are free to consider those [11th Amendment] arguments without the state having to make them.” TEAM says it has repeatedly advised Mr. Molloy that it is a formal technical requirement that Montana actually indicate that it has not waived its sovereign immunity for the Court to take up the defense.
“Even after it has been explained to Mr. Molloy in detail,” said Mr. Mayer, “he apparently still does not or pretends not to understand that the Supreme Court is highly unlikely to address the 11th Amendment bar to its jurisdiction over this case unless the state of Montana formally asserts its sovereign immunity defense. The one page motion Montana can file anytime before the Court rules takes care of that. Attorney General Bullock should file it immediately to give Montana that extra chance to win the case.”
The two 11th Amendment amicus briefs and a Summary may be viewed at TEAM’s website, LINK:http://www.11thamendment.org/2012/05/08/11th-amendment-supreme-court-briefs/
Case Citations from this story:
1. Citizens United v. FEC, 130 S.Ct. 876 (2010)
2. Petition for a Writ of Certiorari: American Tradition Partnership, Inc., fka Western Tradition Partnership, Inc., et al., Petitioners v. Steve Bullock, Attorney General of Montana, et al. – U.S. Supreme Court Docket # 11-1179
Quote Source -- Attorney General Steve Bullock, 1/20/12: “I owe it to a century of Montanans going forward to do all I can to defend this (case) irrespective of what might happen in my next campaign.” http://ivn.us/2012/01/20/montana-supreme-court-decision-opposes-citizens-united/
Contact: Adam Furgatch: 310-967-5854
adam at 11thAmendment dot org