The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
BOB BROWN, HAILEY SINOFF, and CV 21–92–H–PJW–DWM–BMM
DONALD SEIFERT,
Plaintiffs,
OPINION &
vs. ORDER
CHRISTI JACOBSEN, in her official
capacity as Montana Secretary of State,
Defendant.
This case derives from a challenge to the apportionment of electoral districts
for Montana’s Public Service Commission (“the Commission”). The current
electoral map for the Commission was adopted in 2003 and has not been updated
since. Plaintiffs Bob Brown, Hailey Sinoff, and Donald Seifert (collectively
“Plaintiffs”)1 sued Secretary of State Christi Jacobsen in her official capacity,
seeking to enjoin her from certifying candidates for Districts 1 and 5 for the
upcoming 2022 elections, a declaration that the current districts under Mont. Code
Ann. § 69–1–104 violate the Fourteenth Amendment, and relief in the form of a
new electoral map. Following the grant of a preliminary injunction prohibiting the
1 Brown is a resident of District 5 based on the current map, while Sinoff and
Seifert are residents of District 3. (Doc. 1 at ¶¶ 13–15.)
certification of candidates for Districts 1 and 5, the parties simultaneously moved
for summary judgment. Those motions were taken under submission, and a bench
trial was conducted on March 4, 2022. Both the parties chose not to call witnesses
but were afforded the opportunity to do so; instead, they stipulated to the evidence
each offered. Based on the exhibits presented in conjunction with the summary
judgment briefing and the stipulated evidence presented at the trial, the current
district map is unconstitutional, and Jacobsen is permanently enjoined from
certifying candidates under it. Accordingly, a new map is imposed, under which
Jacobsen will certify candidates for the Commission for the 2022 election cycle
and the court-ordered adoption of the state’s proposed redistricting will control the
establishment of the district map until the Montana legislature acts differently.
BACKGROUND
I. Factual Background
The Commission is organized as an entity under the executive branch. See
Mont. Code Ann. § 2–15–2602. It “adopt[s] such rules of practice and procedure
for the filing, investigation, and hearing of petitions or applications to increase or
decrease rates and charges of railroads, motor carriers, and public utilities as the
commission finds necessary or appropriate to enable it to reach a final decision in
an orderly manner.” Id. § 69–2–101. It is empowered to “(a) adopt reasonable and
proper rules relative to all inspections, tests, audits, and investigations; (b) adopt
and publish reasonable and proper rules to govern its proceedings; and (c) regulate
the mode and manner of all investigations and hearings of public utilities and other
parties before it.” Jd. § 69—3—103(2). It consists of five members, “who shall be
qualified electors of the district from which they are elected, with each such
member elected from a separate district of the state.” Jd. § 69-1103.
As depicted below, the current districts were drawn in 2003:
Disi rict4.
District 1: 186,616 (-30,229, -13.94%)
District 2: 216,532 (-313, -0.14)
District 3: 239,748 (+22,903, +10.56%)
District 4: 208,963 (-7,882, -3.36%)
District 5: 232,366 (+15,521, +7.16%)=see2
(Doc. 43-1); Mont. Code Ann. § 69—1—104. Districts for the Commission, unlike
those for the legislature, are not required to be redistricted on any definite timeline.
See Mont. Const. art. V, § 14. Even so, failed efforts were made between 2003 and
the present to alter the existing map. At least some of these efforts attempted to
satisfy the constitutional mandate of voter parity to the extent feasible. In 2013,
Montana Senate Bill 153 proposed a map with reapportioned Commission districts
based on the 2010 Census data. S.B. 153, 63rd Leg., Reg. Sess. (Mont. 2013).
The bill failed. In 2017, Senate Bill 210 was introduced, which sought to amend
§§ 69–1–104 and 69–1–104 so that commissioners for the Commission would be
appointed, rather than popularly elected. S.B. 210, 65th Leg. Reg. Sess. (Mont.
2017). Senate Bill 210 did not, however, make any changes to the current districts.
See id. It also failed. In 2019, Senate Bill 246 and Senate Bill 309 both proposed
redistricting of the Commission’s districts, specifically providing that the energy
and telecommunications interim committee would “recommend changes to the
legislature to revise the commission from five districts to three districts” and
identifying specific “redistricting criteria.” S.B. 246, S.B. 309, 66th Leg., Reg.
Sess. (Mont. 2019). Both bills failed. In 2021, Senate Bill 160 was introduced to
change the method of selection of commissioners from one of election to one of
appointment. S.B. 160, 67th Leg. Reg. Sess. (Mont. 2021). That bill also failed.
The record includes evidence from the 2020 Census,2 which is relevant to
the calculation of the current Commission district’s respective deviation from the
ideal population utilizing the formula from Evenwel v. Abbott, 578 U.S. 54, 59–60
(2016). Based on that calculation, the ideal population for each district in Montana
would be 216,845 persons. (Doc. 41 at 6.) This figure is achieved by dividing
Montana’s total 2020 population of 1,084,225, (id. at 5), by the number of districts,
2 The parties have stipulated to the accuracy of the 2020 Census data. (Doc. 41 at
5–6.)
or five. See Evenwel, 578 U.S. at 59. Relying on the 2020 Census data, the
population of the smallest district, District 1, downwardly deviates approximately
14% from the ideal population while the population of the largest district, District
3, upwardly deviates approximately 10%. (Doc. 41 at 6.) Under the Evenwel
formula, the maximum population deviation based on the current districts is
roughly 24%. See 578 U.S. at 60; (see also Doc. 41 at 6). These figures mean the
current district map violates the requirement of one person, one vote under the
Fourteenth Amendment to the federal constitution.
II. Procedural Background
In December 2021, Plaintiffs brought the present suit, alleging that the
Commission districts are malapportioned. (Doc. 1.) Plaintiffs invoked
appointment of a three-judge panel pursuant to 28 U.S.C. § 2284(a) to resolve their
claims. (See generally id.) The Chief Judge of the Ninth Circuit accordingly
appointed the current panel. (Doc. 3.)
Plaintiffs then filed a motion for a temporary restraining order and/or a
preliminary injunction, seeking to enjoin the candidate certification process in
Districts 1 and 5, which are scheduled to hold elections in 2022. (Doc. 5 at 2.)
Plaintiffs’ request for a temporary restraining order was granted, and Jacobsen was
temporarily restrained from implementing the candidate certification process in
Districts 1 and 5. (Doc. 7 at 9.) Following a January 7, 2022 hearing, Plaintiffs’
request for a preliminary injunction was granted, and Jacobsen was enjoined from
certifying candidates for commissioner in Districts 1 and 5. The case was then set
on an expedited trial schedule given the March 14, 2022 candidate filing deadline.
(See Doc. 16.)
Plaintiffs and Jacobsen filed simultaneous motions for summary judgment.
(Docs. 21, 24.) During the summary judgment briefing stage, Plaintiffs filed a
“Notice of Nonobjection Regarding [the] Applicability of 22 [sic] U.S.C. § 2284.”
(Doc. 30.) In response to an argument from Jacobsen that the three-judge panel
was improvidently appointed, Plaintiffs “affirmatively consent[ed] to further
adjudication by a single district court judge” without conceding the Commission
was not a “statewide legislative body” so as to remove this case from the purview
of § 2284. (Doc. 30 at 2.) The motions for summary judgment, in addition to
Plaintiffs’ notice, were taken under submission for the March 4, 2022 bench trial.
While the March 4 bench trial presented the parties with the opportunity to
call witnesses and introduce evidence beyond the summary judgment record,
neither party called any witnesses. The parties stipulated to the admission of
Plaintiffs’ Proposed Map 1 (“Map 1”), Plaintiffs’ Proposed Map 2 (“Map 2”),
Plaintiffs’ Proposed Map 3 (“Map 3”), and Jacobsen’s Proposed Map (“Map 4”).
(Docs. 43-2, 43-3, 43-4, 43-9.) The trial consisted of argument about the
significance and meaning of the stipulated evidence.
LEGAL STANDARDS
Summary judgement is proper if no genuine issues of material fact exist and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
On cross-motions for summary judgment, it is the court’s “independent duty to
review each cross-motion and its supporting evidence . . . to determine whether the
evidence demonstrates a genuine issue of material fact.” Fair Housing Council of
Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1137 (9th Cir. 2001). Each
motion is therefore evaluated separately, “giving the nonmoving party in each
instance the benefit of all reasonable inferences.” Lenz v. Universal Music Corp.,
815 F.3d 1145, 1150 (9th Cir. 2016) (quotation marks omitted).
However, at the summary judgment stage, courts must determine only
“whether there is a genuine dispute for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). On motions for summary judgment, the court “does not
engage in credibility determinations or weigh evidence.” Munden v. Stewart Title
Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021). Accordingly, because both parties
submitted expert reports that necessarily required us to make a credibility
determination, (see Docs. 43-6, 43-12), a bench trial was necessary to permit us to
weigh the credibility of the parties’ respective experts—a task made more difficult
in the absence of witness testimony to clarify the significance of the reports and
evidence.
ANALYSIS
Jacobsen advances numerous procedural arguments that she alleges bar us
from reaching the merits of this case. According to Jacobsen, the three-judge panel
was improvidently appointed under 28 U.S.C. § 2284(a), Plaintiffs’ claims are not
justiciable because they are either untimely or unripe, and Plaintiffs lack standing.
None of these arguments is persuasive.
On the merits, both parties agree that the current Commission districts
deviate beyond the presumptively constitutional threshold of a 10% maximum
deviation based on the 2020 Census data. What the parties disagree on is the
nature of the injury and its proper remedy. According to Plaintiffs, the injury is a
violation of the electorate’s constitutional rights, and the proper remedy is the
imposition of a court-ordered map identifying new districts in anticipation of the
2022 elections. According to Jacobsen—if we reach the merits—the electorate’s
alleged constitutional injury is comparably less severe than the injury to separation
of powers principles that would result from any judicial remedy, and the proper
result is to allow the 2022 elections to proceed on the current unconstitutional map
to allow the Montana legislature to address the problem at the upcoming 2023
legislative session. The tension between a constitutional violation and the
principles of federalism and the doctrine of separation of powers presents a
Hobson’s choice for the court.
Reluctantly, the answer here is to narrowly impose a federal court order to
reapportion state electoral districts until the Montana legislature acts. Because the
current Commission districts impermissibly violate the one person, one vote
principle of the Fourteenth Amendment, the districts are unconstitutional.
Recognizing the narrow time constraints posed by the March 14, 2022 candidate
filing deadline and seeking to avoid the disenfranchisement of all voters presently
expecting to vote in the 2022 elections, imposition of a new Commission map is
appropriate. This remedy is not permanent, however, and remains subject to the
Montana legislature’s power to draw and implement its own constitutional map.
I. 28 U.S.C. § 2284(a)
Jacobsen represented at the March 4 trial that she would not seek an appeal
based on the propriety, or alleged lack thereof, of the three-judge panel. The
Supreme Court’s decision in Shapiro v. McManus, 577 U.S. 39, 43–44 (2015),
strongly suggests that § 2284(a) is jurisdictional; thus, regardless of Jacobsen’s
intentions for appeal, because jurisdiction is a prerequisite to adjudication, we must
consider whether the three-judge panel was properly appointed in this case.
Under 28 U.S.C. § 2284(a):
A district court of three judges shall be convened when otherwise required
by Act of Congress, or when an action is filed challenging the
constitutionality of the apportionment of congressional districts or the
apportionment of any statewide legislative body.
The statute was amended in 1975, and this amendment “eliminate[d] the three-
judge courts in cases seeking to enjoin the enforcement of State or Federal laws on
the grounds that they are unconstitutional, except in reapportionment cases.” S.
Rep. No. 94-204, at 1–2 (1975). The legislative history from the amendment
emphasizes that the three-judge panel requirement was specifically and
intentionally retained for cases involving the reapportionment of any statewide
legislative body. Id. This requirement was preserved for such cases because
“these issues are of such importance that they ought to be heard by a three-judge
court and, in any event, they have never constituted a large number of cases.” Id.
at 9. The legislative history of § 2284 and federal case law reveal that there are
two distinct, conjunctive elements to “statewide legislative body”: (1) the impacts
of the body’s decisions must be statewide, and (2) the body must be “legislative” in
function.
As to the first element, the legislative history of the 1975 amendment to
§ 2284(a) clarifies that “[w]here such a body exercises its powers over the entire
State, this section requires that three judges hear cases challenging apportionment
of its membership.” S. Rep. No. 94-204, at 9. By contrast, “[a]pportionment of a
body that deals only with matters of local concern and [is] representative of a
county, district, or city, would not require three judges, even though the body
derives its power from a State statute.” Id. A state legislature is the textbook
definition of “a body [that] exercises its powers over the entire State,” and so it
follows that cases challenging the apportionment of districts to that body initially
be heard by a three-judge panel. See S. Rep. No. 94-204, at 9. On the other hand,
a three-judge panel would not be convened to hear the sort of constitutional
challenge raised in Hadley v. Junior College District of Metropolitan Kansas City,
Missouri, 397 U.S. 50 (1970). S. Rep. 94-204, at 9. In Hadley, the Board of
Trustees of a school district was the governmental body at issue, and its
jurisdiction extended only to the district in which the Board sat. See 397 U.S. at
51–52. The governmental body at issue in Hadley was not “statewide,” and
therefore the challenge to its apportionment did not require a three-judge panel.
See S. Rep. No. 94-204, at 9.
On the second element, the legislative history indicates that Congress
specifically intended to incorporate and react to federal case law. The history of
the 1975 amendment to § 2284(a) states that the use of the term “statewide
legislative body” arose out of an intent to apply the constitutional principles
outlined in Reynolds v. Sims, 377 U.S. 533 (1964), to “elected bodies which
exercise ‘general governmental powers over the entire area served by the body.’”
S. Rep. No. 94-204, at 9. In Reynolds, a three-judge panel was convened based on
the plaintiffs’ challenge to Alabama’s state legislative electoral districts under the
Fourteenth Amendment. 377 U.S. at 541. Ultimately, the Supreme Court applied
the one person, one vote principle of the Equal Protection Clause to the
apportionment of state legislatures. Id. at 568. Following Reynolds, the Court
clarified that the Fourteenth Amendment’s one person, one vote principle also
applied to the electoral districts for local government officers that served entire
geographical areas, including districts for county commissioner, Avery v. Midland
Cnty., 390 U.S. 474, 485–86 (1968), and districts for the election of trustees to a
school district board, Hadley, 397 U.S. at 58.
Avery is a helpful foil for this case. There, a Texas taxpayer challenged the
election of the Midland County Commissioners Court from single-member
districts, alleging that the unequal population of the districts contravened the one
person, one vote principle of the Fourteenth Amendment. Avery, 390 U.S. at 476.
The defendants in Avery argued that the Commissioners Court’s functions were not
“sufficiently legislative” to implicate the one person, one vote principle. Id. at 482.
The Supreme Court rejected that argument. The Court determined that the
Commissioners Court’s legislative functions had the power to “make a large
number of decisions having a broad range of impacts on all citizens of the county,”
including, inter alia, setting tax rates, equalizing assessments, issuing bonds, and
preparing and adopting a budget to allocate the county’s funds. Id. at 483. The
Court determined that even though the Commissioners Court served executive,
administrative, and judicial functions, that did not remove the Commissioners
Court from the purview of the one person, one vote principle because the
Commissioners Court performed fundamentally “legislative” functions. Id.
Notably, like the Commission, the Commissioners Court is not organized under the
“legislative” branch, but rather is classified under Article V of the Texas
Constitution, which is titled “Judicial Department.” Tex. Const. Art. 5, § 18. It is
the state body’s function, as opposed to its denomination, that impacts the
invocation of § 2284.
Similarly, in Hadley, the Court held that the one person, one vote principle
encompassed by the Fourteenth Amendment extended to the appointment of
trustees of a junior college district. 397 U.S. at 52. In Hadley, the Court rejected
the idea that it should “distinguish for apportionment purposes between elections
for ‘legislative’ officials and those for ‘administrative’ officials[.]” Id. at 55.
Consequently, the Court held, “as a general rule, whenever a state or local
government decides to select persons by popular election to perform governmental
functions, the Equal Protection Clause of the Fourteenth Amendment requires that
each qualified voter must be given an equal opportunity to participate in that
election.” Id. at 56.
The legislative history of the 1975 amendment to § 2284 is heavily informed
by Reynolds, Avery, and Hadley. That history cites Avery and Hadley as examples
of cases where elected bodies exercised general governmental powers over the area
in which those bodies served, suggesting at first blush that the bodies at issue in
those cases would meet the definition of “any statewide legislative body.” But, as
discussed above, the legislative history of the amendment to § 2284 clarifies that
such a body must exercise its powers over the entire State to invoke the
jurisdiction of a three-judge panel. S. Rep. 94–204, at 6. Thus, the history clarifies
that it is because the bodies at issue in Avery and Hadley were not statewide, not
because they were not “legislative,” that jurisdiction would fail to vest in a three-
judge panel.
Because the Commission satisfies both elements of a “statewide legislative
body,” the three-judge panel in this case was properly appointed. On the first
element, the Commission has the authority to exercise its powers over the entire
state of Montana. See Mont. Code Ann. § 69–1–102. The Commission’s authority
is not limited to the local matters of a county, district, or city. Cf. Avery, 390 U.S.
at 476. Indeed, even Jacobsen does not seem to contest the “statewide” reach of
the Commission. (See Doc. 24 at 4–8.)
On the second element, the State argues the Commission is an executive, not
legislative, body under Montana law. But despite its organization under the
executive branch, the Commission is a “legislative body” as that term was intended
by the 1975 amendment to § 2284. Units of government frequently “cannot be
classified in the neat categories favored by civics texts,” Avery, 390 U.S. at 482,
and so the mere categorization of the Commission as “executive” under Montana
law does not automatically render it outside the definition of a “legislative body”
for purposes of § 2284(a). In the context of local government, the Court in Avery
emphasized that a body, such as the Commissioners Court, may be “assigned some
tasks which would normally be thought of as ‘legislative,’ others typically assigned
to ‘executive’ or ‘administrative’ departments, and still others which are judicial.”
390 U.S. at 482. Consequently, Avery indicates that the legislative function of a
body need not be its sole purpose to implicate the necessity a three-judge panel
under § 2284(a). This is consistent with the broad intent espoused in the legislative
history of the amendment to § 2284 that, whatever the body is called, it must
“exercise ‘general governmental powers over the entire area served by the body.’”
S. Rep. 94-204, at 9. This understanding is also consistent with the commonplace
definition of “legislative power” that Jacobsen proffers in her summary judgment
brief: “the power to make laws and to alter them; . . . [a] legislative body may
delegate a portion of its lawmaking authority to agencies within the executive
branch for purposes of rulemaking and regulation.” (Doc. 24 at 5 (quoting
BLACK’S LAW DICTIONARY 449 (4th Pocket ed. 2011).) Even though a
governmental unit may be statutorily classified under the executive or judicial
branch, where the legislature has delegated its “lawmaking authority” to that unit,
the unit is acting as a legislative body as that term is contemplated in § 2284. See
Avery, 390 U.S. at 482.
Here, the Commission “adopt[s] such rules of practice and procedure for the
filing, investigation, and hearing of petitions or applications to increase or decrease
rates and charges of railroads, motor carriers, and public utilities as the
commission finds necessary or appropriate to enable it to reach a final decision in
an orderly manner.” Id. § 69–2–101. It is empowered to “adopt reasonable and
proper rules relative to all inspections, tests, audits, and investigations; adopt and
publish reasonable and proper rules to govern its proceedings; and regulate the
mode and manner of all investigations and hearings of public utilities and other
parties before it.” Id. § 69–3–103(2). Given these functions, the Commission is
embodied by the term “statewide legislative body” under § 2284(a), thereby
triggering the mandatory three-judge panel upon Plaintiffs’ initial request. See
§ 2284(a), (b)(1). Many of these functions overlap with the functions carried out
by the Commissioners Court, see Avery, 390 U.S. at 483, and the legislative
history’s emphasis that the term “statewide legislative body” is meant to reflect
“elected bodies which exercise ‘general governmental powers’” further supports
the conclusion that the Montana Public Service Commission is a “legislative body”
for purposes of § 2284. Accordingly, the three-judge panel has jurisdiction over
this case.
II. Justiciability: Timing
Jacobsen reiterates two objections that were raised at the preliminary
injunction stage and in her motion to dismiss: Plaintiffs’ challenges are not
justiciable because they are both too late—based on 2010 Census data—and too
early—based on 2020 Census data. These objections are rejected for the reasons
previously stated. (See Doc. 16 at 3–5.)
III. Standing
Standing is “an essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). To establish standing, a plaintiff must demonstrate three things: (1) the
plaintiff suffered an injury in fact that is (2) causally connected and fairly traceable
to the challenged conduct and (3) likely to be redressed by a favorable decision in
court. Id. Under the first prong, a plaintiff must demonstrate an injury that is both
“concrete and particularized” as well as “actual or imminent.” Id. at 560. Under
the second prong, a plaintiff must show that the injury is “fairly traceable to the
challenged action of the defendant, and not the result of the independent action of
some third party not before the court.” Id. (alterations omitted). Finally, under the
third prong, a plaintiff must show that it is likely, not merely “speculative,” that the
injury will be redressed by a favorable decision from the court. Id. at 561.
Here, the first prong of standing is satisfied because the current map for the
Commission’s districts creates a greater than 10% deviation from the ideal
population, which is presumptively unconstitutional. See Evenwel, 578 U.S. at 60;
(Doc. 41 at 6.). But Jacobsen disputes that Plaintiffs satisfy the second and third
prongs of the standing inquiry. Jacobsen argues that Plaintiffs fail to demonstrate
traceability because the Montana legislature, not Jacobsen, is the root of Plaintiffs’
alleged injuries. (See Doc. 25 at 9, 11–14.) Jacobsen also argues that Plaintiffs fail
to demonstrate that their injury is redressable because their requested relief exceeds
the scope of Jacobsen’s authority. (Id. at 14–16.) These arguments are
unpersuasive.
A. Traceability
“The secretary of state is the chief election officer of [Montana], and it is the
secretary of state’s responsibility to obtain and maintain uniformity in the
application, operation, and interpretation of the election laws . . . .” Mont. Code
Ann. § 13–1–201.3 The Supreme Court’s decision in Baker v. Carr shows that the
secretary of state is a proper defendant in actions brought by voters seeking to
vindicate their Fourteenth Amendment rights. 369 U.S. 186, 204–06 (1962). In
Baker, the plaintiffs were voters of various Tennessee counties who sued
3 The statute excludes Chapters 35, 36, and 37 of the Montana Code Annotated,
which do not bear on the issues in this case.
Tennessee state officials under the theory that the current electoral districts
unconstitutionally diluted their votes in violation of one person, one vote. Id. at
204–05. The defendants included “the Tennessee Secretary of State, Attorney
General, Coordinator of Elections, and members of the State Board of Elections.”
Id. at 205. The Court concluded that the Baker plaintiffs had standing. Id. at 206.
Old Person v. Cooney, 230 F.3d 1113 (9th Cir. 2000), is also instructive. The
plaintiffs in Old Person—Native American voters in Montana—sued the Montana
Governor and Secretary of State, alleging that the redistricting plan for electoral
districts for the State House of Representative and Senate violated the Fourteenth
Amendment and the Voting Rights Act. Id. at 1117. Defendants there did not
argue that the Secretary of State—or the Governor—was an improper party.
Here, Jacobsen argues that she is not the proper party because Plaintiffs’
claim “imputes the conduct of a non-party, the Montana Legislature, onto the
Secretary. . . But none of the alleged unlawful conduct resulting in a purported
Fourteenth Amendment violation concerns the actions or omissions of the
Secretary.” (Doc. 25 at 12.) Jacobsen argues that the proper defendants are the
State of Montana, the Montana legislature, (Doc. 32 at 10), or the Governor. But
those parties are either immune from suit or likewise would be unable to
implement Plaintiffs’ requested relief.
The Secretary of State administers elections, which includes certifying
candidate names for inclusion on ballots and certifying election results. See § 13–
1–201. These activities overlap with the activities of the Secretary of State named
as a defendant in Baker, against whom the Supreme Court determined those
plaintiffs had standing to bring their Fourteenth Amendment claim. See 369 U.S.
at 205 n.25. Thus, here, where Plaintiffs’ prayer for relief specifically requests that
Jacobsen be enjoined from implementing and administering candidate filings for
elections upon the current Commission district map, (Doc. 1 at 16), that request
directly aligns with Jacobsen’s duties as the Secretary of State. It provides the
necessary “causal link” to satisfy the second prong of the standing inquiry.
Additionally, the other defendants named in Baker were so named because of
Tennessee state statutes that are inapplicable here. See 369 U.S. at 205 n.25
(noting that the Attorney General is required to be named as a defendant by state
statute and explaining that the remaining defendants are affiliated with the state
board of elections). Moreover, despite Jacobsen’s arguments to the contrary at the
March 4 trial, there is not a meaningful distinction between the apparently
acceptable naming of the Secretary of State as a defendant in Old Person and the
naming of the Secretary of State as a defendant here. At the March 4 trial,
Jacobsen emphasized that the Governor was also named as a defendant in Old
Person, but he had not been named here; the omission of the Governor as a
defendant in the present case, however, does not sever the necessary causal link for
standing purposes because it is the Secretary of State—not the Governor—who
administers candidate filings based on electoral maps and administers elections
based upon those maps.
Moreover, the Montana legislature could not be a party to this case because
it is specifically immunized from suit by statute. See Mont. Code Ann. § 2–9–
111(2) (“A governmental entity is immune from suit for a legislative act or
omission by its legislative body. . . .”). Attempting to name the Montana
legislature as a defendant for an alleged failure to act to redistrict the
Commission’s districts would have been futile. And, Jacobsen’s allusion to the
State of Montana as a party is problematic for several other reasons. First, the
Eleventh Amendment generally bars suits against the state. Second, as Plaintiffs
point out, a state officer may be sued for injunctive relief if the “office sufficiently
connect[s] him with the duty of enforcement,” Ex parte Young, 209 U.S. 123, 161
(1908). Jacobsen administers the filings by prospective candidates and enforces
elections through her role as the Secretary of State, and so she may be sued in her
official capacity.
Plaintiffs have shown that the alleged injury is “fairly traceable to the
challenged action of [Jacobsen], and not the result of the independent action of
some third party not before the court.” Lujan, 504 U.S. at 560.
B. Redressability
Jacobsen’s argument on redressability is somewhat merged with her
traceability argument and her arguments on the merits. In her brief in support of
summary judgment, Jacobsen argued that the alleged injury cannot be redressed by
a favorable decision for Plaintiffs because Jacobsen lacks the authority to
implement a new map. (Doc. 25 at 14–16.) In her response to Plaintiffs’ summary
judgment brief, Jacobsen raised an additional argument related to redressability:
that Plaintiffs’ requested relief cannot be granted because it goes “beyond
pronouncing a constitutional judgment and extends into amending Montana law.”
(Doc. 32 at 12.) According to Jacobsen, “What Plaintiffs really ask this Court to
do [] is amend MCA § 69–1–104,” as it is the statute that currently identifies which
counties fall within each district. (Id. at 14.) Jacobsen’s first argument fails for the
reasons explained above. Her second argument is unpersuasive because it
conflates judicial remedy with judicial legislation.
It is plain that a court may not rewrite a statute. See United States v. Stevens,
559 U.S. 460, 481 (2010). But courts are empowered to strike down
unconstitutional laws, and that action does not constitute judicial lawmaking. See
Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 556 (2013). Thus, we have the
authority to declare unconstitutional § 69–1–104, which names the counties in each
of the Commission’s current districts, without resurrecting the specter of judicial
legislation that Jacobsen fears. Additionally, as a practical matter, striking § 69–1–
104 as unconstitutional and implementing a new Commission map cannot be
rewriting the statute because there will be nothing to “rewrite.” The statute ceases
to exist. Consequently, because we may declare § 69–1–104 unconstitutional and
implement a new Commission map—upon which the 2022 elections will be
administered by Jacobsen in her role as Secretary of State—Plaintiffs satisfy the
redressability prong of the standing inquiry.
IV. Fourteenth Amendment Violation
The Fourteenth Amendment guarantees every voter his “constitutional right
to have his vote counted with substantially the same weight as that of any other
voter.” Hadley, 397 U.S. at 53. The guarantee is aspirational to the extent that
“[s]tates must draw congressional districts with populations as close to perfect
equality as possible.” Evenwel, 578 U.S. at 59. “But, when drawing state and
local legislative districts, jurisdictions are permitted to deviate somewhat from
perfect population equality to accommodate traditional districting objectives.” Id.
Such traditional districting objectives include preservation of “the integrity of
political subdivisions, maintaining communities of interest, and creating
geographic compactness.” Id. Again, “[w]here the maximum population deviation
between the largest and smallest district is less than 10% . . . a state or local
legislative map presumptively complies with the one-person, one-vote rule.” Id. at
60.
Here, as noted above, under the Evenwel formula, the maximum population
deviation of the Commission districts is roughly 24%, which exceeds the
presumptively reasonable 10% deviation. See 578 U.S. at 60. Jacobsen does not
dispute that the deviation exceeds that floor, but instead argues that Plaintiffs’
challenge is not ripe because it is based on the 2020 Census data, and we should
therefore abstain from declaring the Commission’s districts unconstitutional until
after the 2023 legislative session. But Jacobsen’s timeliness argument ultimately
goes to the question of remedy, and no evidence in the summary judgment record
or introduced at trial rebuts the presumption of unconstitutionality. In the absence
of evidence to rebut that presumption, the current Commission districts are
unconstitutional, and the map as it is expressed in § 69–1–104 is unconstitutional.
V. Remedy
The Supreme Court has “repeatedly emphasized that legislative
reapportionment is primarily a matter for legislative consideration and
determination.” Connor v. Finch, 431 U.S. 407, 414 (1977) (quotation marks
omitted). The Supreme Court has also continued to emphasize that “redistricting
and reapportioning legislative bodies is a legislative task which the federal courts
should make every effort not to pre-empt.” Wise v. Lipscomb, 437 U.S. 535, 539
(1978) (collecting cases). But where a state legislature has failed to “reconcile
traditional state policies within the constitutionally mandated framework of
substantial population equality . . . a federal court is left with the unwelcome
obligation of performing in the legislature’s stead.” Connor, 431 U.S. at 415.
“When a federal court declares an existing apportionment scheme
unconstitutional, it is therefore, appropriate, whenever practicable, to afford a
reasonable opportunity for the legislature to meet constitutional requirements by
adopting a substitute measure rather than for the federal court to devise and order
into effect its own plan.” Wise, 437 U.S. at 540. “[B]ut when those with
legislative responsibilities do not respond, or the imminence of a statewide election
makes it impracticable to do so, it becomes the ‘unwelcome obligation’ of the
federal court to devise and impose a reapportionment plan pending later legislative
action.” Id. (citation omitted).
When courts undertake the task of reapportionment, the result of their efforts
is held to a higher standard than the standard applied to legislative plans. See
Connor, 431 U.S. at 414. Such three-judge federal district courts engaging in
reapportionment are held to a higher standard “in two important respects: Unless
there are persuasive justifications, a court-ordered reapportionment plan of a state
legislature must avoid use of multimember districts, and, as well, must ordinarily
achieve the goal of population equality with little more than de minimis
variation.”4 Id. at 414 (alterations and quotation marks omitted). Thus, three-
judge courts engaged in reapportionment must grapple with the “hard remedial
problems in minimizing friction between their remedies and legitimate state
policies.” Id. In addition, while any reapportioned plan must comply with the
Voting Rights Act, see, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986); Abrams v.
Johnson, 521 U.S. 74 (1997), the vote dilution and vote deprivation concerns
typically implicated by the Voting Rights Act are not implicated in this case. (See
Doc. 22 at 31–32; id. at 32 n.5; see also Doc. 32 at 24.)
Because this case neither implicates concerns associated with multimember
districts nor generates issues related to the Voting Rights Act, the main challenge
here is adhering to the stricter standard imposed on federal district courts engaged
in redistricting while simultaneously adhering to recognized and legitimate state
policies. That challenge is somewhat exacerbated by the parties’ slightly different
accounts of what the relevant Montana state policy is—and how much deference is
owed to such policy—and the challenge is made greater still by the absence of
4 While “de minimis” is not defined in Connor, it is commonly defined as “trifling;
negligible,” or “so insignificant that a court may overlook it in deciding an issue or
case.” De minimis, BLACK’S LAW DICTIONARY (11th ed. 2019). But Connor
pointed to values over 10% maximum population deviation as not “de minimis,”
albeit in the context of redistricting by a legislature. 431 U.S. at 418.
Accordingly, because we are held to a higher standard in redistricting than the
legislature would be, “de minimis” must mean something below 10%, and the
closer the value comes to zero the better, but the exact value is unclear.
witnesses who may have testified to legislative standards or state policy and the
reasons for such guidelines. Nevertheless, for the reasons explained below, we
implement a version of Jacobsen’s submitted Map 4 that is consistent with the
heightened standard for redistricting by a federal court and faithful to legitimate
state policy as reflected in her proposed redistricting map with a single minor
alteration to preserve the integrity of the Blackfeet Reservation. In doing so, we
recognize that Map 1, proposed by Plaintiffs, represents another viable option for
redistricting; however, principles of federalism, comity, and the separation of
powers compel us to implement a modified version of Map 4 despite that Map 1
also comports with the requirements of the Constitution and substantially adheres
to the state’s policies and preferences.
A. Relevant State Policy
Courts should adhere to “the policies and preferences of the State, as
expressed in statutory and constitutional provisions or in the reapportionment plans
proposed by the state legislature, whenever adherence to state policy does not
detract from the requirements of the Federal Constitution.” White v. Weiser, 412
U.S. 783, 795 (1973). On this point, Jacobsen argues that § 69–1–104 includes the
following requirements to which we must adhere: each district must (1) be
compact and contiguous, (2) represent a community of interest, and (3) use county
lines as the district boundary. (Doc. 32 at 23.) In support of the final criterion,
Jacobsen notes that “[e]ach subsequent redistricting attempt likewise adhered to
the existing policy of following county lines.” (Id.) Related to the second
criterion, “communities of interest,” is defined by the Legislative Redistricting
Criteria Considerations (2021): “This could be an urban neighborhood or a rural
area. It might be an area where people have similar jobs or lifestyles. It might be
an Indian reservation.” (Doc. 33-1 at 10.) In her summary judgment materials,
Jacobsen defines a “community of interest” as “a community with shared
geography, socioeconomic status, and economic activity.” (Doc. 32 at 27.)
Plaintiffs’ articulation of the relevant state policies is largely consistent with
Jacobsen’s criteria. The point on which Plaintiffs disagree, however, is the
required adherence to county lines. Rather, Plaintiffs argue that we must “preserve
political boundaries,” which may mean keeping counties intact, but which may
also mean “preserv[ing] cities, towns, counties, and federal reservations.” (Doc.
22 at 33 (citing 2020 Mont. Districting & Apportionment Comm’n, Criteria &
Goals for State Leg. Districts).)
The parties’ differences compel the resolution of two issues: first, whether it
is state policy that Commission district boundaries be drawn along county lines,
and second, whether the agreed-upon criterion that communities of interest be kept
intact requires the preservation of Indian reservations. On the first question,
Jacobsen argues that the historic practice of drawing Commission districts along
county lines indicates that such a practice is state policy. But, as Plaintiffs point
out, the Commission’s districts have been redrawn only once in their nearly 50-
year history. Consequently, it is difficult to say that defining the Commission’s
districts by county is a “state policy.” Jacobsen also argues that § 69–1–104,
which lists the districts by county, further demonstrates a state policy of drawing
Commission districts atop county lines. While there is no evidence in the
summary judgment record, nor any evidence from the trial, that indicates that
county lines were intended to reflect the boundaries for commission districts rather
than stand-in as mere proxies for such boundaries, Plaintiffs agreed at the March 4
trial that county boundaries could be adhered to without compromising the
constitutional integrity of a new Commission map.
On the second question, Plaintiffs recognize that any prospective map could
not simultaneously adhere to county lines and keep the Flathead Reservation intact.
(Doc. 34 at 16.) This poses a dilemma given that county lines are currently
consistent with the Commission district boundaries and, at the same time, federal
reservations are “communities of interest” and state policy seeks to keep such
communities intact. At the March 4 trial, Jacobsen represented that the State
prioritized county lines over maintaining Indian reservations. Given that federal
district courts engaged in redistricting must adhere to the “policies and
preferences” of the State so long as they are consistent with the court’s
constitutional obligations, White, 412 U.S. at 795 (emphasis added), a map that
follows county lines should be implemented over a map that deviates from such
lines to maintain the Flathead Reservation. But, at the same time, it is possible
here to implement a map that follows county lines and maintains nearly all Indian
reservations. Because this approach strikes the best balance between adhering to
state policy and preferences while complying with the requirements of the
Constitution, this map is implemented. While Plaintiffs’ proposed Maps 1, 2, and
3 provide a significantly lower maximum population deviation than Map 4, that
factor alone does not overcome state policy and preference so long as Map 4 is
presumptively constitutional.
B. Deference
The Supreme Court’s emphasis on the “friction” inherent in reapportionment
recognizes the tension created by the pull of the separation of powers and
federalism and the push to comport with federal equal protection principles. To
alleviate some of the strain on the separation of powers, Jacobsen argues that we
must totally defer to state policies, which means adopting Jacobsen’s proposed
map because it disrupts the current Commission map “as minimally as possible.”
Jacobsen relies on Upham v. Seamon, 456 U.S. 37, 42 (1982) (per curiam), for this
argument, pointing to the policy that we must not “intrude upon state policy any
more than necessary.” But Jacobsen’s reading takes Upham a bridge too far;
faithfully read, Upham does indeed require a federal district court engaging in
reapportionment to adhere to state policy, but Jacobsen conflates the prohibition of
intruding on state policy as little as possible with a requirement to change existing
state maps as little as possible. That approach is not what Upham requires.
Upham stated in full, “In fashioning a reapportionment plan or in choosing
among plans, a district court should not pre-empt the legislative task nor ‘intrude
upon state policy any more than necessary.’” 456 U.S. at 41–42 (quoting White,
412 U.S. at 794–95). In White, the Supreme Court held that the three-judge district
court panel erred in choosing one proposed plan when a different proposed plan
“adhered to the desires of the state legislature while attempting to achieve
population equality among districts.” 412 U.S. at 795. The rejected plan
“achieved the goal of population equality to a greater extent” than the adopted
plan, and the Court noted that the district court failed to state any reason for
adopting one plan over the rejected plan. Id. at 796–97.
With this context, Upham stands for precisely what it says:
Whenever a district court is faced with entering an interim
reapportionment order that will allow elections to go forward it is faced
with the problem of reconciling the requirements of the Constitution
with the goals of state political policy. An appropriate reconciliation of
these two goals can only be reached if the district court’s modifications
of a state plan are limited to those necessary to cure any constitutional
or statutory defect.
456 U.S. at 43 (citation and quotation marks omitted). Thus, consistent with
Jacobsen’s position, established state policies and preferences are owed deference.
However, contrary to her position, we may modify a “state plan” to bring it into
compliance with the Constitution, but the modification should be tempered by the
goals of state policy and preference. Applied here, we defer to the state’s
suggested redistricting criteria—which are consistent with the traditional
districting criteria recognized in federal case law—but make one modification to
the remedy proposed by Jacobsen to satisfy the heightened standard imposed upon
federal courts in the redistricting context. The heightened standard requires no
more than de minimis variation in population equality, and our modification to
Map 4 adheres to state policy while simultaneously reducing the maximum
population deviation among districts.
C. Comparison of Proposed Maps
As a preliminary matter, Maps 2 and 3 are rejected because they do not
maintain communities of interest, do not maintain county lines, and do not
maintain total consistency among voters who would otherwise expect to vote in the
2022 elections for the Commission. Consequently, we are left to choose between
Map 1, which Plaintiffs submitted, and Map 4, which Jacobsen submitted. In
redistricting cases, the Supreme Court has indicated that one task of a federal
district court engaged in such redistricting is to adequately explain its choice of one
proposed map over an alternative proposed map. See White, 412 U.S. at 796–97.
Accordingly, we consider Maps 1 and 4 in turn.
Map 1 has a maximum population deviation of 1.8%. (Doc. 32-4 at 6.)
According to Defendant’s expert, Map 1 would divide two of Montana’s 56
counties. (Id. at 5.) It would separate the Evaro Precinct, which is home to 1,183
people, (id.) from the rest of Missoula County, which has a population of 117,922,
(Doc. 23-1 at 9). Map 1 also would separate the Dixon Precinct, which has a
population of 514, and the Hot Spring Precinct, which has a population 1,146,
(Doc. 32-4 at 5), from the rest of Sanders County, which has a population of
12,400, (Doc. 23-1 at 9). The division of 2 of Montana’s 56 counties into separate
Commission districts certainly considers the adherence to county boundaries, and it
fails to follow county boundaries only in the two instances noted above. All told,
Map 1 removes roughly 2,843 of Montana’s more than 1,000,000 people from their
home county, or about three-tenths of one-tenth of Montana’s population. Map 1
also maintains all Indian reservations.
By comparison, Map 4, as proposed, results in a maximum population
deviation of 9.44%. (Doc. 43-11 at 7.) So, by a hair’s breadth, the map Jacobsen
proposes comes under the presumptively constitutional 10% threshold. Map 4
“makes three changes relative to the current Commission districts”: Glacier County
moves from District 5 to 1, Musselshell County moves from District 3 to 1, and
Deer Lodge County moves from District 3 to 4. (Id. at 6.) All district boundaries
adhere to county lines, but the Flathead Reservation and the Blackfeet Reservation
are divided. The Blackfeet Reservation—a community of interest—is divided to
preserve Glacier County and Pondera County. A review of the population of the
Blackfeet Reservation and the counties that overlap it provides some evidence of
the accompanying communities of interest. Glacier County has a population of
13,778, where most of the residents of the Blackfeet Reservation live. (Doc. 23-1
at 9.) In other words, more than three-fourths of Glacier County’s residents live on
the Blackfeet Reservation. Map 4 also splits the Flathead Reservation—a
community of interest—to preserve Flathead County, Missoula County and
Sanders County. Arguably, the community encompassed by the Flathead
Reservation boundaries shares more in common in terms of economic,
environmental, and social bonds than the comparable communities encompassed in
the surrounding county boundaries.
Comparing Map 1 against Map 4, it is the better map by many metrics: it has
a “no more than de minimis” variation from perfect equality, the districts are
relatively compact and congruous, and all currently eligible 2022 voters maintain
their ability to vote in the upcoming election for the Commission. And, while Map
1 does not perfectly adhere to county lines, it adheres to those lines in all but two
instances, as described above. The deviations away from the county lines are
based in an effort to maintain the significant community of interest on the Flathead
Reservation. If we were to draw an electoral map in the first instance, independent
of relevant state policies and preferences, Map 1 arguably represents the best
option. But that is not the inquiry facing federal district courts tasked with
reapportionment.
Map 4 checks many of the same boxes as Map 1: its districts are relatively
compact and congruent, it largely maintains communities of interest, and all
currently eligible 2022 voters maintain their ability to vote in the upcoming
election for the Commission. But, unlike Map 1, Map 4 completely adheres to
county boundaries. At the same time, however, Map 4 divides two communities of
interest and results in a significantly higher maximum population deviation. But
the former defect can be remedied by making one small modification to Map 4,
without disenfranchising any voter who currently expects to vote in the 2022
Commission elections, and this change also remedies the latter defect, as explained
below. Moreover, our modification of Map 4 strikes the best balance of the
concerns articulated in Upham: recognizing state policies and preferences,
upholding constitutional rights, and respecting principles of federalism.
D. Remedy
Seeking to defer to legitimate state policies and recognizing the heightened
burden of “achiev[ing] the goal of population equality with little more than de
minimis variation,” Map 4 is adopted almost in its entirety, save for one change.
Pondera County is moved from District 5 to District 1. This results in a maximum
population deviation of 6.72%5 and maintains the Blackfeet Reservation as a
community of interest. As Plaintiffs note, “the Flathead Indian Reservation
extends into two high-population counties, Flathead County and Missoula County,
making it impossible to avoid splitting either the Reservation or at least one
county.” (Doc. 34 at 16.) Thus, the modification to Map 4 reconciles the
requirements of the Fourteenth Amendment’s one person, one vote principle with
the goals of Montana state policy. See Upham, 456 U.S. at 43. Understanding “de
minimis” in this context to mean something below the presumptively reasonable
10% threshold imposed on legislative redistricting, see Connor, 431 U.S. at 418,
our modification is consistent with the instruction for federal courts to incur no
more than de minimis population variance and incorporate legitimate state policy.
Moreover, all voters who planned to vote in the 2022 elections remain eligible to
do so. Accordingly, in the absence of legislative action, the map for the 2022
Public Service Commission elections is set forth below:
5 This figure comes from davesredistricting.org, which the parties agree generates
accurate numeric values. (Doc. 41 at 9.)
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4 bo ce a “NM | le ioe eer
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a
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It bears repeating that this map remains in effect only in the absence of
legislative action. The map does not interfere with the Governor or the Montana
legislature’s ability to call a special session and implement a different map, nor
does it prevent the Montana legislature from creating a different constitutional map
during the 2023 legislative session.
CONCLUSION
For the reasons set forth above, Plaintiffs’ requested relief is granted.
Accordingly,
IT IS ORDERED that Montana Code Annotated § 69—1—104 1s
DECLARED unconstitutional.
IT IS FURTHER ORDERED that Secretary Jacobsen is permanently
enjoined from certifying candidates under the 2003 Commission map.
37
IT IS FURTHER ORDERED that Secretary Jacobsen will implement the
above map, absent action by the Montana legislature, to certify candidates for
Districts 1 and 5 for the 2022 elections.
IT IS FURTHER ORDERED the Clerk is directed to enter judgment
consistent with this Order and close the case. All pending motions are DENIED as
moot.
DATED this 8th day of March, 2022. 11:55 a.m.
i W. lloy, Sie Judge /
United States District Court
/s/ Paul J. Watford
Paul J. Watford, Circuit Judge
Ninth Circuit Court of Appeals
ar
Z 3 ~ /, /, ‘
Brian M. Morris, Chief Judge
United States District Court
38
Morris, Chief Judge, CONCURRING,
I join in the entirety of the Court’s Opinion and Order with one exception.
I would have adopted Plaintiffs’ Map 1 as the preferred remedy, as it better
reflects state policy as expressed in the actions and statements of the Montana
Districting and Apportionment Commission and the Montana Legislature. See
White v. Weiser, 412 U.S. 783, 795 (1973) (stating that courts should apply “the
policies and preferences of the State, as expressed in statutory and constitutional
provisions or in the reapportionment plans proposed by the state legislature,
whenever adherence to state policy does not detract from the requirements of the
Federal Constitution.”). First, the 1.8% population deviation provided by
Plaintiffs’ Map 1 better complies with the state policy of minimizing population
deviation. (See Doc. 23-3 at 3 (2020 Districting and Apportionment Commission’s
mandatory criteria that maximum population deviation not exceed +/- 1%);
Doc. 23-2 at 3 (2010 Montana Districting and Apportionment Commission’s
mandatory criteria that maximum population deviation not exceed +/- 3%);
Doc. 32-5 at 3 (statement of Senator Fred Thomas, sponsor of Montana Senate Bill
153 to adopt a new Commission map and Defendant’s expert in this case,
explaining in a hearing on the failed bill that the proposed preferred option “has the
smallest deviation by population.”).) Second, Plaintiffs’ Map 1 comports with the
requirement to consider communities of interest as it keeps intact the boundaries of
Montana’s seven Indian reservations. (See Doc. 23-3 at 4 (2020 Montana
Districting and Apportionment Commission’s statement that in its discretionary
criteria that it will consider Indian reservations as communities of interest);
Doc. 23-2 at 4 (2010 Montana Districting and Apportionment Commission’s
statement that it will seek to preserve, where possible, Indian reservations as
communities of interest).) Third, Plaintiffs’ Map | considers the importance of
county boundaries as it keeps intact 53 of Montana’s 56 counties, encompassing
99.74% of Montana’s 1,084,225 residents. (See Doc. 23-3 at 4 (2020 Montana
Districting and Apportionment Commission’s statement in its discretionary criteria
that it “will consider” political boundaries, including cities, counties, and Indian
reservations as communities of interest); Doc. 23-2 at 4 (2010 Montana Districting
and Apportionment Commission’s statement that it will attempt, where possible, to
follow lines of political units including counties, cities, school districts, and Indian
reservations).) Finally, Plaintiffs’ Map 1 presents five compact and contiguous
districts. (See Doc. 32-4 at 4.) I would be willing, pursuant to Upham, 456 U.S. 37
(1982), to defer to Defendant’s Map 4 if it had been a product of the deliberations
of the Montana Legislature rather than a product of Defendant’s expert witness
obtained for this litigation. C ke . ted, ;
Ne f “4
Brian Morris, Chief District Judge SS
United States District Court