Petition for Writ of Certiorari — Single Moms, Inc. v. Montana Power Co.

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FILED

-{! No.

03 827 016 2003

In The

Supreme Court of the United States

SINGLE MOMS, INC., a non-profit

corporation; DERILYN DoRSCHER, CHRISTINE

McCrea, and Mary Kay McGratu, individually

and on behalf of their minor children,

Petitioners,

Montana Power Company, a Montana corpora-

tion; PENNSYLVANIA PowER & LIGHT, a Pennsylva- -

nia corporation; NORTHWESTERN CORPORATION, a

South Dakota corporation; PAN CANADIAN ENERGY,

an Alberta corporation, MONTANA STATE HOUSE OF

REPRESENTATIVES, AND MONTANA STATE SENATE,

The 55th Legislative Session Members;

ENCANA ENERGY RESOURCES, Inc.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Robert C. Kelleher, Sr. Robert L. Kelleher, Jr.

Counsel of Record, Petitioners 230 Grand Ave

PO Box 397 Billings, MT 59101

Butte, MT 59703 (406) 252-8521

(406) 782-7408 FAX 252-8641

Fax 782-5566

QUESTIONS PRESENTED

I. Were Fourteenth Amendment rights of

Plaintiff Single Moms, 94.2% of whom live below

federal poverty line, infringed where eiectric

utility laundered funds through its PAC to lobby

deregulation through legislature meeting

biennially for 89 days for sole, professed purpose

of selling off generating and distribution assets

to be invested in fiber optic company controlled

by utility's CEO and directors and since forced to

file bankruptcy?

II. Did 1972 constitutional abolition of

sovereign immunity leave legislators with only

qualified immunity? ;

III. If deregulation statutes were

unconstitutional, was sale of assets by defendant

utility to named defendants void, and is

defendant Pennsylvania Power & Light Global

[GLOBAL] chargeable with unjust enrichment?

IV. To guarantee Plaintiffs a republican form of

government, and given Court’s current Guaranty

Clause justiciability jurisprudence, is court

required to (i) declare state’s “separation of

powers’ government quasi-monarchical and (ii)

are there “judicially manageable standards”

- Circuit can draft to enable District Court to

enforce Court’s decision?

V. If Court is now unprepared to require

legislature to elect state’s chief executive and

department heads, because both chambers are

elected one-person, one-vote, and well-financed

lobbyists use bicameralism to thwart efforts of

single moms to enact pro-children legislation,

should Court outlaw bicameralism?

TABLE OF CONTENTS

Page

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Appendix A - Amended Complaint

Appendix B - Ninth Circuit Decision

Appendix C - US District Court Order & Opinion

Appendix D - Constitutional Provisions

Gee Ga gee ee

TABLE OF AUTHORITIES

Cases Page

Austin v. Michigan Chamber of Commerce,

494 US 652, 110 S Ct 1391, 108 L ed 2d 652

NEESER a AER ee RN ee a 5

Baker v. Carr,

369 US 186, 82 S Ct 691, 7 Led 2d 663 .. 7,8

Puncan, In re,

No. 1174, Argued 12/17/1890; Decided 3/30/

a chenbadibennasae 6

Evans v. Newton,

382 US 296, 86 S Ct 486, 488, 15 L ed 2d,

eas canis sdanciasoabancbabasedoaaen 4

Forsyth v. Hammond,

Te i cosisssacesdnavasnascannens 5

Gregory v. Ashcroft,

501 U.S. 452, 111 Sup Ct 2395, 115 Led 2d

alias 5

Institute of Governmental Advocates v. Fair Pol.

Practices Comm.,

164 F.Supp. 2d 1183, 1195 (2001) ............... 3

Krieg v. Massey ,

239 Mont. 469, 781 P. 2d 277 (1989)......... 16

Minor v. Happersett,

Zi Wall (68 US) 162 (1876) ......:0..0ccececcovse00e 5

Morton v. M-W-M, Inc.,

263 Mont. 245, 868 P. 2d 576 (1994)......... 16

lVew York v. United States,

112 S Ct 2408, 506 US 144, 120 Led 2d 120,

eI iach voorseesve akan ssnconsaineess iah aucinadas 5

Reynolds v. Sims,

377 US 533, 12 L ed 2d 506, 84S Ct 1362

PINT 5c octidecsuieickucdhes's picevaicitaasmaeatceaseece agai anette 8

Tenney v. Brandhove,

341 US G67, 7 SCE TSS GG) ovcvsecescesicssecee 6

Vannatta v. Keisling,

Ek Fe 8 CI bikiecenticcmcniiens 5

Statutes

Be SR EE srighiceesakcasicradantmnmesnenennics i cuivuacdeseasa as 1

ET EE Sisco pciactaeeatunasniaesahasanaeveekmaenie 1

Be EE FN ernie net tice nermuincdanamauael ae

Ee SI TE eacces ids cane ncaancedbenas teases tied alanine 1

Treatises

16A Am Jur 2d,

Consisislional 1000. F. OO 00.0. 0ccevescsessvseseevess 11

FE ONE LO TET 7,9

Secret Proceedings and Debates of the Convention

Assembled at Philadelphia, 1787 ...ccccccceevee 9

Re ee Eg aN OTT 7

“Table DP-1, Montana”, U.S. Census, 2000...... 15

NORTHWEST JOB GAP STUDY, Searching for

Work That Pays, 2001, Montana ................00000 15

lv |

DECISIONS BELOW & BASIS FOR JURISDICTION

The ruling of the United States Court of

Appeals for the Ninth Circuit in Single Moms,

Inc. a non-profit corp. et al. v. Montana Power Co.

et al, No. 02-35361 entered June 10, 2003 is

reproduced in Appendix B. An extension was

granted by Circuit Justice O'Connor until October

7, 2003. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254 and Rule 10 of the

Supreme Court Rules.

The Order and Opinion of the United States

District Court for Montana, CV 01-46-BU-DWM,

Single Moms, Inc. a non-profit corp. et al. v.

Montana Power Co. et al, February 6, 2002 is

reproduced in Appendix C.

STATEMENT ON JURISDICTION

After defendants filed Rule 12(b)(6) Motions to

dismiss Amended Complaint, plaintiffs filed Motion

for Summary Judgment. District Court granted

defendants’ Motions and, finding plaintiffs’ SJM

moot, dismissed Complaint. Plaintiffs appealed.

Circuit Court affirmed.

Single mother plaintiffs with minor children

residing in Montana claim denial of federal due

process and equal protection rights under the

Fourteenth Amendment and 42 USC § 1983

because of loss of property rights (marked

increase in utility rates) resulting from CEO of

Montana Power Company (MPC) aggressively

lobbying legislature to enact deregulation

legislation of which MPC was sole beneficiary

allowing it to sell off its assets to fund its wholly

owned fiber-optic telecommunications company

regardless of the impact on plaintiffs and the

elderly. District Court has original jurisdiction

under 28 USC § 1331 and 42 USC § 1983.

The Circuit Court has jurisdiction under 28

USC § 1292 and § 1651.

Rule 29.6 Corporate Disclosure Statement

Single Moms, Inc., a non-profit corporation,

issued no stock, had no assets and no

subsidiaries.

CONSTITUTIONAL PROVISIONS

Petitioners rely on Section One of the

Fourteenth Amendment and Section Four of

Article IV of the United States Constitution, set

out in full at Appendix D.

STATEMENT OF THE CASE

Where power company moves funds through

its PAC to induce 3 month biennial session of

legislators devoid of staff to deregulate electricity

and gas; where utility CEO in press releases

admits utility seeks deregulation for sole purpose

of spinning off assets to put the cash into its

wholly-owned fiber-optic telecommunications

subsidiary, “Touch America”, and Public Service

Commission rate expert testifies in District Court

hearing that in 1996 state produced 5,000

megawatts of electricity but used only 1,600, and

plaintiffs submit evidence single mothers and

elderly on fixed incomes are unable to pay higher

power and gas bills caused by fictitious

“customer choice” legislation, and 40 states in

1996 had higher power rates than Montana

including Massachusetts whose rates are twice

as high, plaintiffs allege deregulation legislation

was unconstitutional because funding Touch

America was not a “compelling state interest”

under strict scrutiny review but passed (1) for a

special purpose and (2) denied plaintiffs and ~

elderly the necessities of life protected by

Fourteenth Amendment and Guaranty Clause.

REASONS FOR GRANTING THE WRIT

Issue I. Can contributions of its officials

laundered by corporation’s PAC be used to lobby

legislature?

Where state produces native load of 5,000

megawatts, selling 1,600 instate at one of lowest

residential and commercial rates in the nation,

and Amended Complaint alleges in 1997

Montana Power Co. [MPC], its CEO, Bob

Gannon [GANNON], and officers despite

constitutional prohibition against legislative

“special privileges . . . or immunities” [Art. IT, §

31] and absent a “compelling state interest”,

report paying through MPC’s PAC, “Committee

Jor Responsible Government’, $17,962' to 1995

1 Insignificant compared to $1.45 billion lobbyists

paid to members of Congress in 1999, but more than

Single Moms’nothing.

and 1997 legislators or 87% of the 55

Legislature who voted for deregulation and

$70,615.37 to 18 lobbyists [Complaint, p. 12]

hired to induce 83 term-limited biennial-session

89 day “citizen” legislators devoid of paid staff

other than the 18 lobbyists? to pass deregulation

legislation drafted a year earlier by MPC and

Goldman Sachs for professed purpose of selling

off MPC’s assets worth $3 billion to be invested

in fiber optic company, Touch America (of which

GANNON is CEO and which in September, 2003

filed bankruptcy notifying Butte and Denver

employees by Email they were fired after

GANNON and a few associates pocketed $3 to $5

million in “silver parachutes”), and

Where deregulation resulted in substantial

price increases for power and gas for state’s Single

Moms, 94.2% of whom live below federal poverty

line [Ex. 1] some working (in 2003) for $2.50 an

“When lobbyists make a political contribution from

their own funds to those persons whose actions they

are paid to influence, there is at least the appearance

of corruption. ..FN15 The court in VCAZ wrote, With

respect to actual corruption, lobbyists are paid to

effectuate particular political outcomes. The pressure

on them to perform mounts as legislation winds its

way through the system. If lobbyists are free to

contribute to legislators while pet projects sit before

them, the temptation to exchange dollars for political

favors can be powerful. [Additionally,] [e]ven if

lobbyists have no intention of directly purchasing

favorable treatment, appearances may be otherwise. .

.” Institute of Governmental Advocates v. Fair

Political Practices Comm., 164 F.Supp. 2d 1183, 1195

(2001) (emph supp)

- hour [Court is requested to judicially notice 1996

Work Welfare Act was in 2002 a 90% failure in

Montana and 95% failure on its reservations (AP

dispatch, Helena, 2/12/02), that since 1998

Montana workers have had lowest average wages

in Union and single moms seeking an education in

2003 must pay tuition amounting to 60% of total

operating cost of entire U of M system] and

Where MPC historically controlled state

government’ to such an extent it had the

economic clout to eliminate annual sessions‘ a

year after voters approved them in 1972

constitution, and where defendant legislator who

spear-headed deregulation is later hired by MPC

as a lobbyist [Complaint, p. 13, Ex. 6] and still

later by MPC’s vendee of its distribution system,

defendant Northwestern, helping his new

employer — despite Art. II, § 31 - obtain

legislative immunization from suit [SB 458],

while Northwestern informed dissatisfied MPC

shareholders [Ex. 2] they could still sue

3 “A State is not justified, we said, in permitting a

corporation to govern a community of citizens so as to

restrict their fundamental liberties. .. That is to say,

when private individuals or groups are endowed by

the State with powers or functions governmental in

nature, they become agencies or instrumentalities of

the State and subject to its constitutional

limitations.” Zvans v. Newton, 382 US 313, 86S. Ct.

486, 488, 15 Led. 2d 373, 377 (1966)

4 Late Leo Graybill, Jr., Esq., president of 1972

Constitutional Convention remarked, “If Montana

Power had its way, the legislature would only meet

every ten years.”

GANNON, and which itself in September, 2003

filed in Delaware bankruptcy court for Chapter

11 protection,

Was Circuit description of this conduct as

purely governmental action devoid of private

collusion accurate, or was PAC of MPC a ruse to

avoid the sanctions of Austin v. Michigan

Chamber of Commerce’ and of the Guaranty

Clause designed to guarantee Single Moms the

right to enjoy the benefits of a republican form of

government.®

Issue II. Did 1972 abolition of sovereign

immunity leave legislators with only gualified

immunity?

Was Circuit in error when it held

lawmakers including ex-lawmaker defendant

hired by MPC and later Northwestern as lobbyist

had absolute immunity?

5 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652

(1990). Cited by Ninth Circuit as authority that

“corporations use state-created advantages to

dominate both the economic and the political arena.”

Vannatta v. Keisling, Sec’y of State of Oregon, 151 F.3d

1215, 1217 (1998)

6 Guaranty Clause cases finding justiciability have

appeared earlier. Forsyth v. Hammond, 166 U.S. 506

(1897) and Minor v. Happersett, 21 Wall. (88 U.S.) 162

(1875). Is Clause a restraint on Congress’ power to

regulate the activities of the States? Mew York v.

United States, 112 $.Ct. 2408, 2432-2433 (1992).

Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) Ifso,

will Single Moms be in even greater danger if

parliament is not mandated?

-5-

Given (i) conditions outlined in Issue No. I,

(ii) abolition of state immunity [Art. II, § 18] and

(iii) Limiting legislative immunity to “not be(ing)

questioned in any other place for any speech or

debate in the legislature” (emph supp) [Art. V, §

8], do Montana legislators have only a qualified

immunity? Further, is it time for the Court to

revisit its McCarthy era decision overruling this

Circuit’s decision in 7enney v. Brandhove, 341

U.S.367, 71 S.Ct. 783 (1951) where even majority

held “Legislatures may not of course acquire

power by an unwarranted extension of privilege’,

and concurring Justice Black wrote “legislators

are immune from legal responsibility for their

intra-legislative statements and activities’ (emph

supp) but adding “there is a point at which a

legislator’s conduct so far exceeds the bounds of

legislative power that he may be held personally

liable in a suit brought under the Civil Rights

Act.” 71 S.Ct. 783, at 789-790 Dissenting -

Justice Douglas asked whether Un-American

Activities Comm. may “depart with impunity

from their legislative functions” [charged with

“smearing” as a “Red” a Congressman running

for mayor of San Francisco]. 71 S.Ct. 783, at

790-791 In any event, is not 7énneys ruling on

slander inapplicable to the facts swb judice? Is

immunity limited to /egitimate acts? In re

Duncan No. 1174 decided 3/30/1891, 139 US 449.

Issue III. If deregulation statutes were

unconstitutional, was sale of assets by defendant

utility to named defendants void, and is

defendant Pennsylvania Power & Light Global

[GLOBAL] chargeable with unjust enrichment?

-6-

Where economic catastrophe results from

state’s “separation of powers” government’s

inability to provide for basic needs of less than a

million inhabitants in Union’s geographically

fourth largest state, state government has a

century old history dating from the War of the

Copper Kings of inability to prevent its

domination by powerful corporations, and

Guaranty Clause is not identified in Complaint

in haec verbis, but Complaint’s allegations make

out a Guaranty Clause cause of action, is Clause

presumed included? within Complaint’s

Fourteenth Amendment prayer for relief?

7 James Madison, Jr. in Federalist Paper #47 attributes

this doctrine to the “oracle,” Baron de Montesquieu,

1748 author of “Spirit of the Laws’and great admirer of

British system, who taught “a republic is like a body

without a head”.

8 “This case does, in one sense, involve the allocation

of political power within a State, and the appellants

might conceivably have added a claim under the

Guaranty Clause. Of course, as we have seen, any

reliance on that clause would be futile. But because

any reliance on the Guaranty Clause could not have

succeeded it does not follow that appellants may not

be heard on the equal protection claim which in fact

they tender.” Baker v. Carr, 369 US 186, 82S Ct

691, 7 Led 2d 663, 691 (1962) Yet the Court goes on

to say “Specifically, we have said that such claims

are not held non-justiciable because they touch

matters of state governmental organization.” 7 Led

2d 692 (emph supp) “When a State exercises power

wholly within the domain of state interest, it is insulated

from federal judicial review. But such insulation is not

carried over when state power is used as an instrument

for circumventing a federally protected right.” 7 Led 2d

663, 693 [For 1997 review on Guaranty Clause see 120

L ed 2d 957]

x 2

Issue IV. Does Guaranty Clause authorize Court

to order replacement of monarchical (separation

of powers) government with a “unity of powers”

government as last and only resort to purge

century-old history of Fourteenth Amendment

violations?

Issue V. To insure state has republican form of

government in future, after declaring SB 390 and SB

396 violative of the Fourteenth Amendment and

granting Single Moms other relief prayed for in

Complaint, is existence or non-existence of republican

form of government (i) justiciable under Court's

Guaranty Clause jurisprudence requiring Court to

declare state’s so-called “separation of powers”

government is monarchical and not republican and (11) |

are there “judicially manageable standards” Circuit

can draft to enable District Court to enforce this

Court’s decision?

The nonjusticiability of a political question

is primarily a function of the separation of

powers. Much confusion results from the

capacity of the “political question” label to

obscure the need for a case-by-case inquiry.

(emph supp) Baker v. Carr, 369 US 186, 7 L

ed 2d 663, 682, 82 S Ct 691 (1962)

Given the Court’s jurisdiction over the parties

herein and its counsel including the attorney

general and where “there is a clear (presence’) of

judicially manageable standards””® after this

9 “absence” in original, 12 L ed 2d 539

10 Reynolds v. Sims, 377 US 533, 12 L ed 2d 506, 539,

84 S Ct 1362 To be justiciable under the Guaranty

Clause, a question must be apolitical and be subject to

“judicially manageable standards.”

Court, having concluded the state has indeed a

monarchical" form of government patterned

after that of George III in 1787 and there is no

known judicial remedy or cure for or “judicially

manageable standards” with which to measure

the biennial legislature’s vulnerability to periodic

assaults by corporations armed with huge

amounts of stockholders’ money and large legal

staffs, cannot the Court instruct the Circuit to

draft instructions for the District Court directing

the Montana secretary of state to prepare a

In 1786 John Jay asked Washington if he wanted to

be king. Washington, who never allowed anyone to

sit while he was standing or to touch him, declined.

On May 29, 1787 Delegate Edmund Randolph

proposed the Congress (read “majority party”) choose

the chief executive, as did William Patterson of New

Jersey on June 15 and the Committee of Five on

August 6. The Convention finally accepted New

York attorney Hamilton’s proposal for a life-time

chief executive with (i) an adso/ute veto (last used

when Queen Anne vetoed parliament’s 1717 Bill

funding the militia), (i) absolute authority as

commander-in-chief to send royal navy and royal

army wherever and whenever he chose, (iii) absolute

power to hire avd fire ministers, and (iv) life time

senate all as modified by Madison. The Virginia

Delegate in Federalist Paper #47 urges New York

voters to approve the new constitution because “it is

just like England’s”.

Realizing Hamilton’s philosophy had won over

convention thinking, the other two New York

Delegates, Robert Yates — that state’s first chief

justice — and John Lansing, New York’s first

chancellor, left Philadelphia in July.

Secret Proceedings and Debates of the Convention

-9-

es a

ballot setting up a parliamentary government”

for the state [Ex. 3 — sample one house

parliament] requiring department heads be

Assembled at Philadelphia in the year 1787, Robert

Yates, Esq., Preface, Albany July, 1821, Publ. by

Alston Mygatt, Louisville, KY 1844. England did not

have true parliamentary government until the

Reform Act of 1832. Of the 65 chosen Delegates, 10

never attended and 16 refused to sign the final

document.

During a session at the U.S. Army War College on

how the active military viewed its duty to obey orders

of superior officers and their oath to support the

Constitution, the writer asked a non-lawyer

classmate “if President Nixon ordered you to

surround the Capitol and arrest Majority Leader

Mike Mansfield and Speaker Carl Albert, would you

do it?” The then lieutenant colonel (later flag officer)

looking the writer in the eye without hesitation

replied “he’s commander-in-chief, isn’t he?”

12 A U.S. Parliament was favored by all of the

attendees at the Jan. 10-11, 1981 Constitutional

Reform Conference in Washington arranged by Dr.

Hardin, U of C, Davis. [Ex. 4] Dillon (signature

missing) was secretary of treasury under Eisenhower

~& Kennedy. Cutler could not attend because trying to

get embassy hostages out of Teheran. Woodrow

Wilson and William Howard Taft favored a U.S.

Parliament. James MacGregor Burns details FDR’s

insistence on independence for Indochina after

evicting the Japanese. FDR ordered Gen. Wedemeyer

not to give the French any ammunition or supplies.

Roosevelt, Soldier of Freedom, James MacGregor

Burns, Harcourt Brace, NY, 1976, p. 591. If Deputy

Prime Minister Truman knew this policy, 58,000

servicemen would not have been killed in Vietnam.

-10-

elected members of majority party in unicameral

legislature and chief executive and his/her

deputy be members of that majority and

providing for financing a small staff for the

Minority Leader, remaining details to be worked

out by the Circuit in its Instructions to the

District Court, whose staff will assist the

secretary of state in composing any remaining

issues for the ballot to be submitted to the state’s

voters at the election following the next election.

Because SB 390 and 396 are

unconstitutional, the sale of MPC’s assets to

defendants PPLM, NorthWestern and other

defendants are null and void, and the assets

should be returned to MPC with MPC returning

the cash to the vendee defendants.

16A Am Jr 2d Constitutional Law, p. 90

Acting In Concert

SB 390 and SB 396 (Chapter 505 of the 55

Montana Legislature) were drafted by MPC and

Wall Street investment bankers Goldman Sachs,

not by the legislature. Acting in concert, MPC

and defendant legislators in violation of the

constitutional and statutory rights of plaintiffs

including CLASS either with gross negligence or

in the absence of slight or of any care enacted SB

390 and SB 396 which restructured Montana’s

electric and natural gas utility industries by

providing a fictitious “customer choice”. That

MPC and defendant legislators knew, or in the

exercise of reasonable care, should have known

21.

SB 390 and SB 396 would raise to prohibitive

levels the cost of power and gas for plaintiffs.

That indeed, MPC now admits the legislation it

drafted raised prices for commercial and

residential users, such as these plaintiffs.

Complaint, pp. 7 & 8; Ex. 2

Affidavit of Economist

1) The extracts from affidavit of Professor

Thomas M. Power, chair of Department of

Economics, University of Montana [Excerpt #7]

in support of plaintiffs’ Motion for Summary

Judgment evidence the indifference of MPC and

lawmakers who knew in advance the

devastating impact of SB 390/396 on plaintiffs’

federal and state fundamental rights:

“6. Ihave served on the Montana Power

Company Conservation and Least Cost Planning

Advisory Committee since it was formed in 1988

and continue to serve on the (MPC) Universal

Systems Benefits Advisory Committee.

“8. When the restructuring of Montana’s electric

and natural gas utilities was proposed by the

MPC and others to the Montana Legislature,

Montana Power and the Legislature were we//

aware of the market risks that customers would

face as a result of the abandonment of regulated

electric and natural gas supplies. When electric

and natural gas supply prices are determined by

national and regional markets instead of on the

basis of the cost of the regulated utility's own

-12-

ee a ee ee

supply, there is a/most no limit on how high those

energy costs can rise since sellers can charge

whatever the market will bear. Those risks of

higher prices were widely discussed at meetings of

the MPC Advisory Committee, in forums

Categories

Female-Head, Female-Head,

Dependent Dependent

Children Other Children Other

(n=85) (1-66) (n=623) (0=733)

Percent Below

Federal Poverty 94.2% 86.3% 872% 85.5%

Line

Average

Household $574 $839 $649 $656

Monthly Income

Average

Household

Monthly Income $196 $218 $228 $570

Per Capita

Average

Monthly

Housing Costs $275 $349 $283 $221

(mortgage/rent +

utilities) a

Average

Monthly Utilities $85 $115 $131 $102

* Study funded by Northwest Areas Foundation.

**Study funded by Montana Hunger Coalition and Montana Department of Health and Human

Services

(Note: Both studies conducted by Paul Miller, Department of Sociology, University of Montana,

AS @ THE MONTANA STANDARD, BuTTE, WEDNESDAY, Arr 16, 2003

TO FORMER MPC SHAREHOLDERS &

NORTHWESTERN ENERGY CUSTOMERS

THE TRUTH ABOUT SB 458

& A group of plaintiffs’ attorneys are spreading a lot of misinformation about

mB SB 458. The proposed legislation does not prevent former MPC shareholders

@ from suing to recover stock losses.

SB 458 simply provides an opportunity for NorthWestern Energy to be out

é of the plaintiffs’ lawsuit. NorthWestern bought the “poles and wires” from

™ MPC after the shareholders approved the sale. It is unjust for NorthWestem to

H be sued by those same shareholders for decisions made by MPC’s officers

a and directors.

# if SB 458 passes, the following parties can still be sued:

. Bob Gannon and the former officers of MPC

. The former board of directors of MPC

Goldman Sachs (investment advisor to MPC)

. Milbank, Tweed (legal advisor to MPC)

Touch America Holdings, Inc. (successor to MPC)

PPL-Montana (purchased assets without shareholder

approval) ;

g. Westmoreland Mining (purchased assets without

shareholder approval)

h. Pan Canadian Petroleum (purchased assets without

shareholder approval) ;

i. CES Acquisitions (purchased assets without shareholder

approval)

>~>e a0 oc

4 if NorthWestern ends up paying a major judgment in this tawsult, even § &£

a) though It did nothing wrong, the company’s ratepayers might be stuck ;

4 paying the tab. Call your State Representative at 406-444-4800. Ask for %

5 a YES vote on SB 458. E x, 1

SB 458: Good for Ratepayers, Good for Montana

"Paid for by: NorthWestern Energy, 40 E. Broadway St, Butte, Montana 59701

DELEGATE EECPOSAL 2

Wo. 136 — Parliasent -

BOMTABA CONSTITOTIOBAL CCHVEBTICH

1971-1972

DELEGATE FRCECSAL BO. 436

Fx.3

DATE INITBODUCER: EEB. 3, 1972

Referred to Legislative Comsittee

Referred to Execative Ccasittee

A PROPOSAL FOR A NEW COBSTITOTIONAL ARTICLE PROVIDING FOR A

PARLIABERT.

BB It PROPOSED BY THE CONSTITUTIONAL CONVEBSTICH OF THE STATE OF

SOBTABA::-.

Section 1. LEGISLATIVE POSER. The legislative pover of the

state shall be vested in a Parliasent consisting cf one chanber;

but the people reserve to thesselves the initiative, inclediag ‘

the right to amend this Constitaticn, and referendus povers.

Section 2. SESBERSHIP. The pasber cf psesbers of. the

Parliament shall be prescribed by law but shall coasist cof act

less than 100 nor sore than 116. The state shall be divided iato

as aany districts as there are sesbers of the parliazent and each

district shall elect one seaber. ;

Section 3. TERS ABD QUALIFICATIONS. Hesbers of Parliasest

shall serve a tera cf four (4%) years. One-balf cf the sesbers

shall be elected every tuo {2) years. 3o person shall be a seaber

of Parliament who is not a gealified voter of the state aad sho

has sot resided in -the state for acre than one (1) year next

preceding his electica.

Section %. SBSSIONS. Parlianent shall convene the first

Bonday of Febcuary of each year and shall ccntinue. vatil adjoare-

ment. It may reconvene at any tise at the request of a —

of Parliament.

Section 5. FIECUTIVE, Parliasent shall chcose @ leader. fros

anong its seabers and that leader sball assose the execative

authority of the state and shell provide for the proper adsisis-

tration of the laws of the state. The leader shall apgoiat a

cabinet who shall assist the leader jn directing the efforts of ‘

the departeents of executive authority.

DELEGATE PBORCSAL a 74 sg

Bo. 136 - Parliasent 26

Section 6. DISSOLUTION. (a) At any tire during a parliasen—

tary session, the leader say call for a dissolation of

parliasest. Upon a majority vote fursvant to this call, the

patliasenat shall be dissolved and new elections shall be held

accordisg to laws.

(b) At any tise during a parliamentary session, a sajcrity

of the sesbers of parliasent say call for dissolution of the

parliasent. Opom a tvo-thirds (2/3) vote, fursvant to this call,

the parliasent shall be dissolved and new electicns shall be held

according to law.

Section 7. PROCEEDIBCS, A majority of all cf the sesters of

Parliauent shall ccnstitute @ guorus to do business bet a saaller

nusber may adjoure from day to day to compel the attendance of

absent seabers. Parlianent say establish cossittees for the con

duct of business and all comsittee meetings shall be oper to the

public and adequate public sotice shall be giver in advance of

such seetings. Heebers of sinority parties shall be appoisted to

cossittees by their own leadership in prcporticn to the nuserical

strength of said party.

Section 8. RECOBDATION. Parliament shall bave the power to

determine the rules of its proceedings and shall publish'a jour—

nal of those proceedings. Opon the final dispositicn of any

question the ayes and nays must be recorded if reguested by any

two (2) nesbers. ;

Section 9. Any powers not specifically reserved herein are

granted to the Parliasent,

INTRODUCED BI: /s/ Bobert Lee Kelleher

2sZ_Pagl_K, Barlow _ fsi_ George B, Beliker

isi. Biles Bospey _ ésd. Lucile Speer.

@s/ Dorctby FcR fsi_ kyle 8, sonroe

($2 Edith Yap Buskirk és¢_Berold arbanes _

(si _Batie Payoe é3/_Gene §agbasgs

ég/.J, 8, Bard ds/_Vitginie §, Blend

23_Bs_¥, Kasboot ésZ_Barjorie Cain

28/2 3e3b_ 8, Bovsap s a haspon

ds/ Careap Shari (sZ_Bcbert vetsillion _

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@3é_Seorge #. Bollins E ' £32.8,_8; Svapberg

Conferees Constitutional Refora, Washington Conferen

Or. Thomas J. Bennett, Director

University Research Services

Loyola University of Chica

Lewis Towers ; "Se

820 N. Michigan Ave.

wl Tlinois feec! ;

= Pro kd es He ‘a:

” Deparament of Poljt}cal Science

Williams College

Williamstown, Massgchusetts 0126

“Cronin “

Professor Thomas

Department of Political

The Colorado College! tat

Colorado Springs, Coldt m0 a sie

“The Honorable Lloyd ¥. cupler “se

~The White House = Lr bac ="

“ Washington, 0.C. 20500

The Honorable C. Douglas biNlon ae

767 Fifth Avenue

- New York, New York’ 10153 aad

The Honorable J, inti

_ Suite 600 *

asf

815 Connecticut o-

( cs aD, Tardin

Department of Political Science

University. of California.

Davis, California 95616

Professor Ferdinand A. Hermens

420) Mass.-Ave., W.W. HO16 ©

20016 (simmer)

Washi Ps

Le ewe’

Coral Gables; Florida 331K (tte :

President Thomas 1. Hughes

The Carnegie Endownent

1) Dupont Circle, MW. |

Washington, D.C. 20036

Mr. Robert. C= Kelleher

Attorney-at-Law

928 M. 3th Street

Billings, Montana 5910)

Professor William P. Krenl.

Department. of Political Science

iversity of South Carotina

- eee Bi University

frial

_ Jan; 30-11, 398)

Professor. Walter Murphy 4 Ley

Department of Politics -

Princeton University

~ Princetof, New Jersey 084

Professor Robert E, Osgood

School of Advanced Internationa

The Johns Hopkins University = -

1740 Massachusetts Avenue., M. uw re

-» Washington, ‘OC. 20036 - :

“Des Quentin L. Quade, 6

- 615 W. Eleventh Streat ee

Wihaukee, Wisconsin’ 5233 Sree ae

Caress Henry S: Reuss, ‘Chairmaa cae

Mashing, BC, 20815. - sh

oo WN Ttam Schaefer age

~ Department of Political Science :

« Pmerican University.

Collegeof Public Mfairs.

Was » D.C... 20016.

peatainte saith ia +

- 4124 Downing Street

~~ hemandale, Virginia 22003

Wr. Richard L, Strout -

"The New Republic

eS 1M.

, Neshington, D.C. 20036

Dr. James L Sundguist, sentor Fellow

The Brookings Institution , hy ¢ Pi

_ Ws Massachusetts’ Avenue,

Washington, D.C. 20036

Mr. Richard W Ullaan

Endowment

Vi BupontAircle, H.W. ;

Washingtba, D.C. 20088 *

Ext

The Carnegi

APPENDICES

Robert C. Kelleher, Sr..

PO Box 397

Butte, MT 59703 FILED

(406) 782-7408 BUTTE. MT

Robert L. Kelleher, Jr. 701 JUN 15 AN 8 33

230 Grand Ave,

Billings, MT 59101 LOU ALEKSICH, JR. CLERK

(406) 252-8521 | BY

FAX 252-8641 DEPUTY CLERK

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

AMENDED COMPLAINT

SINGLE MOMS, INC. a non-profit

corporation; Derilyn DORSCHER,

a Single Mother,

Individually and as Guardian ad

Litem of Christian and Jamie

DUMAINE, Minors; Christine

McCREA, a Single Mother,

Individually and as Guardian

ad Litem of Sage and Hayden

McCREA, Minors; Mary Kay

McGrath, Single Mother,

Individually and as Guardian ad

Litem of Nicholas and Roxanne,

Minors, and all Others Similarly

Situated, a CLASS; all also as Qui

Tam Plaintiffs on behalf of the State

of Montana,

Plaintiffs & Petitioners, and

App. 1

Matt Brainard, Gary Feland,

Bob Rowe, Bob Anderson,

and Jay Stovall in their official capacities

as members of the Montana Public

Service Commission, and John Martin

MORRISON in his official capacity

as State Auditor,

Involuntary Plaintiffs,

vs.

Montana Power Company, a Montana corporation;

Pennsylvania Power & Light, a Pennsylvania corpo-

ration; and NorthWestern Corporation, a So. Dakota

corporation; Pan Canadian, an Alberta corporation,

and Joe QUILICI and 57 other 55" Legislative Ses-

sion Members of the House of Representatives, and

Fred THOMAS and 24 other 55" Legislative Session

Members of the Senate, as named in Appendix A, all

Individually and not in their official capacity as

members of the 1997 Legislative Session,

Defendants and Respondents.

App. 2

COME NOW plaintiffs and petitioners and for

their First Cause of Action allege and pray as follows:

JURISDICTION

The plaintiffs McGRATH reside in Silver Bow

County; plaintiffs DORSCHER reside in Deer Lodge

County; plaintiffs McCREA reside in Jefferson

County, Montana; defendant Montana Power Co,

(MPC) and defendants and respondents who were

members of Montana’s 55" Legislative Assembly are

residents of the state of Montana. Pennsylvania

Power & Light (PP&L), NorthWestern, and Pan

Canadian Ltd. are foreign corporations.

§ 1 of the Civil Rights Act of 1871 provides in

relevant part:

Every person who, under color of any

statute,...of any State...causes to be subjected

..any citizen of the United States...to the

deprivation of any rights...secured by the

Constitution and law, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for redress...

42 USC 1983 and 1988

Plaintiffs seek injunctive relief under 27—19—104,

MCA. Plaintiffs allege that the security described in

27-19-306, MCA is inapplicable herein, but that if the

Court finds it is then in that event the Court find

said security requirement unconstitutional as violat-

ing the Equal Protection Clauses of the U.S. constitu-

tion and Montana constitution as well as sections 16

and 3, Art. II of the latter.

App. 3

That in addition to injunctive relief plaintiffs seek

damages in the amount of Five Million Dollars

($5,000,000.00) to be paid to the CLASS plus Twenty

Five Thousand Dollars ($25,000.00) for each of the

named plaintiffs plus attorney fees and cost

reimbursement to be set by the Court.

FACTS

I. Heat & power essential for survival—basic

necessities : |

Bobbi Jo MEYERS, age 37, is a single mother who

formerly resided with her two boys James 8 and

Matthew 7, in the home she was buying at 1123

Caledonia, Butte; in January, 2001, MEYERS, a

flight attendant with Alaska Airlines for the past 12

years for the medical benefits for herself and chil-

dren and the retirement benefits typically works 2 to

4 days at a time and is gone from her home 5 days a

week, paid MPC $300 for gas and light in January,

$400 in February; in March MPC demanded another

$500 (which she paid with her tax refund) and in

April another $300; because of the amount of her

mortgage payments MEYERS could not pay both the

mortgage and utility bills; she offered to pay $100 in

April but MPC told her “$100 is not enough on this

astronomical bill” and told her “everyone is in this

situation”; the defendant Public Service Commission

(PSC) tried unsuccessfully to intervene on her behalf;

she was scheduled to have her power cut off on

Wednesday, April 18, 2001 but MPC did not have

adequate personnel to cut off her power because they

were cutting off so many other Butte customers; that

the cost of power and gas to her then home at 1123

Caledonia St., Butte increased dramatically in 2000

App. 4

a eee

A.D.; that if she quit her job with Alaska Airlines and

went on welfare she would qualify for the Low In-

come Energy Assistance Program (LIEAP) and

Energy Share. MPC demanded a $ 1,000 deposit. Her

monthly take-home check is $1,503. MPC suggested

she borrow the money to pay her gas and light bill,

but both of her parents are deceased; that her water

and telephone bills were already two months

delinquent. The treatment she received from MPC

had a deleterious effect on her self-esteem and

feelings about her dignity as a human being.

Plaintiff DORSCHER, an LPN employed by

Nightingale Nursing of Missoula as a home nurse

working from 8 am to 6 or 7 pm, resides at 1210 E.

6 St., Anaconda, has 4 children, two of whom are

minors: Christian Dumaine, age 11, and Jaime

Dumaine, age 16. That in March, 2001 MPC told her

by phone she needed to pay $207 in addition to her

regular bills and DORSCHER told MPC she could

not “keep up” with the MPC payment contract to

which she had agreed, but she would try to pay the

current bills and send more after she no longer

needed heat. Dorscher could not call MPC from the

patient’s phone because of the long waits. On 4/3/01

MPC sent her a form letter [Ex. 1] saying service

would be discontinued within 13 days if “the delin-

quency (of $806.50) is not resolved”, and which she

could pay by credit card by “dialing SpeedPay at

8-877-361-4927”. That DORSCHER had no such

credit card availability. When she got home from

work on 4/19/01 her daughter told her the house was

without power. When she called MPC on 4/19/01,

MPC told her to borrow the money form family

members, friends or a bank, and to apply for LIEAP,

for which she does not qualify because of her hourly

App. 5

wage. That she does not want to go on welfare to be

eligible for LIEAP. MPC also informed her they had a

form she had filled out for MPC stating she had no

children. On Friday, 4/20/01, she called MPC to say

she was waiting for her mail and pay check and could

they turn the power back on. She was told she would

have to wait 24 hours to get the power turned on. On

4/20/01 using all of her paycheck plus some borrowed

money which left her with no money for her other

bills, at 2:25 PM she paid $806.50 [Ex. 2] at

Albertson’s in Anaconda. After paying the $806.50

she placed a call to MPC at 2:30 PM but was kept on

hold until a MPC person answered at 2:55 PM, by

which time she was so angry and frustrated after

months of this kind of treatment that she kicked her

phone jack and got disconnected, and had to call

back. By 3:15 PM she was able to reach a MPC per-

son, gave her the receipt number and by 3.30 PM the

power was turned back on. Because she used her

entire pay check plus borrowed money to pay MPC,

she was forced to turn to the Catholic Community in

Anaconda for food and a gas voucher to get back and

forth to her job in Butte. As a direct and proximate

result of her experience with MPC DORSCHER has

a lower self-esteem and no longer looks at herself as

a person entitled to human dignity.

_ Plaintiff McCREA, 622 Main St., Three Forks,

rents a small house. She is employed as a nursing

home attendant at $7 an hour. She claims in

November, 2000 her gas/light bill appeared to almost

double and to continue to rise each month thereafter.

Her monthly rent is $400, which she paid in

bi-monthly installments of $200. Because of the

increased gas/power bill from MPC she began last

winter to pay her landlady only $150 each payday,

App. 6

a cia em Rac Ace a tcc lc arn ar ea er

later $100 each payday and finally nothing. Her

‘inability to pay her rent when due caused her severe

stress, and lowered her self- esteem. Although her

landlady was most understanding and even paid to

put new siding and windows on the house to conserve

heat, McCREA became more and more panicky about

supporting and feeding her 8 and 9 year old sons and

protecting their health. She worked longer and

longer hours. She used her income tax refund to pay

her landlady $425 at the end of April to catch up on

her rent, but remained 3 months behind on her water

bill and still owed over $300 on her MPC bill. When

she phoned MPC in April they demanded $95.78 that

day plus $95.78 in 10 days plus the current bill. They

wanted $95.78 each month for 3 months in a row in

addition to current charges. Weeks and months of

this type of harassment by MPC caused McCREA

mental suffering resulting in her inability to sleep at

night not knowing how she would take care of her

two boys. The treatment by MPC made McCREA feel

she was less than human, had low self-worth and

had little or no dignity left as a human being.

McCREA’s hourly pay is $7 an hour at the

nursing home—her take-home is $790 a month. She

could work more hours at the nursing home but she

can’t afford daycare for her 2 boys. The cheapest

daycare in Three Forks is $3.50 an hour for her.2

boys, Sage age 9 and Hayden age 8. When MPC told

her the gas and power were to be cut off the first

week of April, she told MPC if she has to choose

~ between feeding her children or paying the bill she

would buy food for her boys. In desperation she

appealed to HRDC which paid $525 which covered

$300 of the MPC bill plus a credit on the next bill.

HRDC obtained a 15% discount each month, which

App. 7

helps but does not relieve the situation. The MPC

woman on the phone was rude and insulting causing

McCREA to cry. The MPC woman told McCREA

either she would do what they wanted her to do or

she would be shut off. The first thing the MPC

woman asked McCREA was “do you know someone

who has a credit card who would pay it for you?” The

MPC woman also told McCREA to go to a bank or

ask relatives or a friend for the money. Because she

did not know how she was going to be able to take

care of her children, the frustration caused her to be

crying when she went to work. She felt she would

never, never catch up. She felt like she had no real

value—that she was less than human—that her

self-esteem went down to zero or even below. She

believed she had no dignity left as a human

being.

Plaintiff McGRATH, who is separated, has two

children living at her home, 320 W. Daly St.,

Walkerville: Roxanne, who turned age 16 on 5/24/01,

and Nicholas who is 17; that she is working part

time; that she has been on LIEAP this past winter;

that she thought she had a credit with LIEAP of

$177 but apparently it had already been sent to

Montana Power Co.; that on 5/9/01 her power was

turned off by MPC; it demanded $408 before turning

it back on; so her frozen food would not spoil her next

door neighbor ran an extension cord to her house to

hook up her freezer; that she got an advance of $468

on her salary for May, and paid $408 to MPC to get

the power back on. That being unable to pay her

higher utility bills has caused her great stress, loss of

weight, to have a lower self-image, loss of self-esteem

and loss of her human dignity.

—_

App. 8

ina a acs ee a

Plaintiff McGRATH is the incorporator of plaintiff

Single Moms, Inc., a nonprofit corporation.

An MPC spokeswoman on 4/20/01 [Ex. 3]

admitted higher gas prices probably contributed to

some customers getting behind on the payments the

winter of 2000-2001 but that about the same number

of customers were sent termination notices as 1n past

years. However, since October, 2000 the applications

in a six county area including Silver Bow for

federally funded energy assistance has risen from

1,881 to 2,301.

That plaintiffs allege on information and belief

that according to the Montana Council of Churches

[Ex. 4] 90% of the households in Montana with a

hunger problem have children, with single (mostly

/emale) parent families particularly at risk. Montana

in 1990 had a poverty level of 16.1% and 24.3% of all

Montana children below Age 5 [13,980 out of 57,600]

live in poverty. 43,237 of 216,898 Montana children

live in families with inadequate money for food.

These single parent Montana families are the most

likely to be the victims of SB 390 and SB 396.

II. Passage of SB 390 & SB 396 [“customer

choice”] by 55“ legislative assembly was

proximate, direct & primary cause of rate

increases which in turn damaged plaintiffs

Plaintiffs were denied “customer choice” in that

they had no choice. Choice as defined in 69—8—2038,

MCA (1997) was mythical and illusory. It is economi-

cally not feasible, indeed irrational, to duplicate

transmission and delivery lines, or for that matter

gas-fired turbines, coal or hydro-powered plants.

App. 9

FSIS oo SSRTEIR ee nN ee

nee

The constant threat day and night of facing

disconnection of power and heating to her home as a

result of high utility bills that she cannot pay can

and does wreak permanent havoc on the mental and

eventually physical health of a single mother with

two minor children looking to her for food, warmth

and protection. Plaintiffs further allege on information

and belief that an estimated 2,170 Montana wage

earners including 335 workers at Montana Resources

mine in Butte, 585 employees at Columbia Falls

Aluminum Co., and estimated 600 employees at

Smurfit/Stone Container in Missoula lost or may lose

their jobs and ability to support themselves and their

families because of SB 390 and SB 396. [The Court is

requested to take M.R.Evid. 201(d) judicial notice of

these adjudicative facts when plaintiff presents the

Court with satisfactory statistical evidence thereof.|

Plaintiffs and CLASS suffered damages as a direct

and proximate result of the gross and reckless neglli-

gence or deliberate actions of defendants MPC and

defendant legislators named in Appendix A as voted

for SB 390 and SB 396.

Plaintiffs and Others Similarly Situated (CLASS)

sustained a violation of their civil and US.

constitutional rights including denial of procedural

and substantive due process and of equal protection

within the meaning of 42 USC §1983 and §1989 and

Article II, Sections 3 and 4 of the 1972 Montana

Constitution which read:

Section 3. Inalienable rights. All persons

are born free and have certain inalienable

rights. They include the right to a clean and

healthful environment and the rights of

pursuing lifes basic necessities, enjoying and

App. 10

defendant their lives and liberties, acquiring,

possessing and protecting property, and

seeking their safety, health and happiness in

all lawful ways, In enjoying these rights, all

persons recognize corresponding

responsibilities. (emph supp)

Section 4. Individual dignity. The dignity of

the human being is inviolable. No person shall

be denied the equal protection of the laws.

Neither the state nor any person, firm,

corporation, or institution shall discriminate

against any person in the exercise of his civil

or political rights on account of race, color, sex,

culture, social origin or condition, or political

or religious ideas. (emph supp)

III.SB 390 and SB 396 served no “compelling

state interest” but rather the financial inter-

est of MPC which is using the cash from the

abortive sale of assets to shore up its

investment in Touch America

SB 390 and SB 396 (Chapter 505 of the 55%

Montana Legislature) were drafted by MPC, not by

the legislature. Acting in concert, MPC and

defendant legislators in violation of the constitutional

and statutory rights of plaintiffs including CLASS

either with gross negligence or in the absence of

slight or of any care enacted SB 390 and SB 396

which restructured Montana’s electric and natural

gas utility industries by providing a fictitious

“customer choice”, made the then territorial integrity

laws meaningless, removed certain rural electric

cooperative properties from class seven for tax

purposes, and was deliberately designed to allow the

export of power to maximize the profits of the suppliers,

App. 11

which raised prices for Montana consumers. That

MPC and defendant legislators knew, or in the

exercise of reasonable care, should have known SB

390 and SB 396 would raise to prohibitive levels the

cost of power and gas for plaintiffs. That, indeed,

MPC now admits the legislation it drafted raised

prices for commercial and residential users, such as

these plaintiffs. [Ex. 3, p.2]

Montana produces between 1,900 and 2,500

megawatts of power annually but only consumes

about 1,900. Between them Montana and Wyoming

have a 5,000 year supply of coal. Allowing

“deregulated” utilities to sell Montana’s power to

power- starved non—Montana industrial customers

out-of-state forced plaintiffs and CLASS to pay

confiscatory prices for power and gas. SB 390 gutted

the Territorial Integrity Act of 1971 by amending

Sections 69-5-101, 69-5-102, 69-5-104, 69-5-105,

69-5-106, 69-5-107, 69-5-108, 69-5-109, 69-5-110, and

69-5-111 while repealing 69-5-103 (eliminating

restrictions on electric suppliers in cities and towns

of 3,500 or more persons) and adding 69-5-112. The

heart of deregulation as drafted by MPC is found in

69-8-204(2) which reads:

“The commission may not order a public utility

to divest itself of any generation assets or

prohibit-a public utility from divesting itself

voluntarily of any generation assets.”

In 1999 MPC sold its hydro and coal generation

facilities to PP&L for $988 million and is now

negotiating to sell its transmission/delivery system to

NORTHWESTERN for about $1.1 billion (now

pending before PSC) the latter with a proviso MPC

pay NORTHWESTERN $50 million if MPC backs out

App. 12

of the deal; sold its coal business to Westmoreland of

Colorado; sold to Continental Energy Services, Inc.

its unregulated independent power business for

$84.5 million cash; and its oil & gas fields and

production for $475 million to Pan Canadian. PSC

has on its docket an application from NORTHWESTERN

seeking approval of such a transfer. MPC could not

have amassed these assets without the money taken

from its customers. If the Court orders MPC to

renounce the latter contract, the $50 million forfeiture

clause should be held zz// and void. Because these

unconstitutional, abortive contracts are recent, none

of them have created irreversible rights. lf PP&L or

Pan Canadian refuse to deed back to MPC the

illegally transferred coal and hydro generating

facilities the Clerk of Court should execute such

deed(s). MPC should be directed to return to PP&L

and Pan Canadian the money received from PP&L

plus interest at the current 3 or 12 month T Bill rate.

Destruction of public utility territorial integrity

by the negligent, defendant members of the 55"

Legislature, 83 of whom accepted contributions from

MPC’s PAC, violated plaintiffs’ civil statutory and

U.S. and Montana constitutional nghts by depriving

them of basic necessities (Art. II, sec. 3) and destroying

their dignity as human beings (Art. II, sec. 4)

including their right to a clean and healthful

environment. The exporting of electrical power

created by Montana’s natural resources of water and

coal has necessitated, zzfer alia, the burning of huge

amounts of diesel fuel by locomotives resulting in

compounding the problem of polluting Montana’s

clean air contrary to the “Clean Air Act of Montana”,

75-2-101, et seg., Art. II, sec. 3, Art. IX, sec. 1 and the

portion of the Preamble listing the “quiet beauty of

App. 13

our state” and “desiring to improve the quality of life,

equality of opportunity” [which the Delegates

intended to have the force of law as part of the Bill of

Rights and not be a mere poetic, hortatory dream;

Transcript, Delegate Marshall Murray, Vol, III, p.37],

Montana Constitution. Article [IX Section I provides: .

Section 1. Protection and improvement.

(1) The state and each person shall maintain

and improve a cieasi and healthful

environment in Montana for. present and

future generations.

(2) The legislature shall provide for the

administration and enforcement of this duty.

(2) The legislature shall provide adequate

remedies for the protection of the environmental

life support system from degradation and

provide adequate remedies /o prevent

unreasonable depiction and degradation of

natural resources. (emph supp)

IV. HB 474 signed on 5/5/01 by Gov. Judy Martz

is Unconstitutional for same reasons as SB

390 and SB 396 and because HB 474 Purpose

Clause contains more than one subject

H.B. 474 enacted by Montana’s 57" Legislature is

unconstitutional for the same reasons as SB 390 and

SB 396. In addition its Purpose Clause contains more

than one subject in contravention of Section 11(3),

Art. V of the 1972 Constitution.

V. Standard of Review for Constitutionality

“Strict Scrutiny”

The standard of review to determine whether a

App. 14

statute depriving a class (especially a suspect class)

of a constitutional or “fundamental” right serves a

legitimate state interest is the highest and most

stringent standard.

VI. SB 390 & SB 396 violate 1889 Enabling Act

because affect plaintiffs “safety and happi-

ness” guaranteed by Declaration of Indepen-

dence

Enactment of SB 390 and SB 396 also violates

Section 4 of The Enabling Act of February 22, 1889

(25 Stat. 676) which reads in relevant part “The

constitutions (of Montana, the Dakotas and Washington)

shall...not be repugnant to the constitution of the

United States (including ‘economic’ slavery under the

Thirteenth Amendment) and the principles of the

Declaration of Independence” the latter of which

provides in relevant part

“We hold these truths to be self-evident—that

all men are created equal; that they are

endowed by their Creator with certain

unalienable rights;...that to secure these

rights, governments are instituted among

men, deriving their just powers from the

consent of the governed...organizing its

powers in such form, as to them shall seem

most likely to effect their safety and

happiness.” (emph supp)

that living in a residence in Butte or elsewhere in

Montana in the winter without heat or light

constitutes a denial of “life’s basic necessities”, denial

of a “clean and healthful environment” and affects

plaintiffs’ “safety and happiness”.

App.15

In summary, disconnecting or threatening to

disconnect gas and light service, charging prohibitive

utility rates and burning diesel fuel in air-polluting

locomotives to generate power damage plaintiffs in

violation of the Enabling Act of 1898, the U.S. and

the Montana Constitutions and the Clean Air Act of

Montana, 75-2-101, e¢ seg., MCA (1997).

VII. Unjust Enrichment—PP&L made

unconscionable profits at expense of plain-

tiffs

Familiar with the ancient warning, caveat emptor,

prior to agreeing to pay MPC almost one billion

dollars for a large portion of MPC’s generating

facilities, PP&L, is presumed by law to be aware of

the public records of Montana including the records

of the Commissioner of Political Practices. This

means PP&L is presumed by law to know that (1)

MPC through its PAC paid over $17,000 to Montana

legislators in 1994 and 1996; (2) in 1997 MPC paid a

platoon of 18 full time lobbyists over $70,000 to lobby

the legislators into passing the complicated deregulation

legislation drafted by MPC; (8) this highly organized

platoon of 18 lobbyists admitted to paying out over

$6,000 to “wine and dine” the legislators most likely

to vote “aye” for SB 390 and SB 396; (4) of the 150

members of the legislature only a handful were

attorneys [senator-attorney Al Bishop voted “no”]

who could possibly begin to have the time—burdened

with their other committee assignments—to

understand the involved language of SB 390 and SD

396, which MPC’s highly skilled—in—utility—law

attorneys had over 12 months in which to draft; (5)

in 90 days it was impossible for the legislators to

comprehend the full import and disastrous economic

App. 16

consequences of “deregulation”; (6) inability of

legislators unschooled in law or economics to

comprehend SB 390 and SB 396 would allow the

export of power out—of-—state following the highest

market price; and (7) the 1972 Montana constitution

called for annual meetings of the legislature so it

would be better informed but a well—financed

advertising campaign by powerful lobbyists convinced

voters in 1974 to return to biennial sessions. PP&L

by law is presumed to have this “guilty knowledge” of

how SB 390 and SB 396 came into being. In short,

PP&L is not an innocent, done fide purchaser for

value within the meaning of Montana’s Uniform

Commercial Code. If PP&L had a billion dollars to

pay cash for Montana’s hydro and coal powered

generating facilities it had enough money to research

the genesis of SB 390/SB 396.

Plaintiffs allege on information and belief that

PP&L Montana (PP&L) reported to SEC that in the

last quarter of calendar 2000 its ze¢ earnings

amounted to $67.8 million or 3 times as much as its

earnings for the first 3 quarters of 2000. These

earnings in a state which now has the lowest per

capita earnings, replacing Mississippi, a former slave

state, as the poorest state in the Union, constitute

unjust enrichment. PP&L contends PSC lacks the

legal authority to regulate its prices. In the last days

of the 2001 legislative session PP&L agreed to sell

MPC 500 megawatts of power in 100—megawatt

units or 4 cents a kilowatt hour plus 4 cents for

delivery—about twice what plaintiffs were paying in

1996—for five years beginning July 1, 2002 when the

price cap goes off of MPC’s residential and commercial

rates. Costs to MPC’s customers are expected then to

go up another 50%. This arrangement between PP&L

App. 17

iii iii

and MPC was reached on condition HB 474

guaranteeing MPC full cost recovery for any power it

purchases be passed by the legislature, which Bill

was signed by the governor on 5/5/01. The third

condition of the arrangement was that PSC drop its

demands to regulate PP&L’s generating prices.

MPC’s vice president of regulatory affairs, Pat Corcoran,

announced on about May 8, 2001 PP&L and MPC would

sign their agreement “in the very near future.”

VIII. Did SB 390 & SB 396 constitute a compei-

ling state interest or in fact provide a

ready means for MPC to finance Touch

America in violation of Art. V, Sec. 12 pro-

hibiting special legislation?

MPC through its Political Action Committee

(hereinafter PAC) gave a total of $17,962 to 1995 and

1997 legislators, PAC paid money to 87% of the

members of the 55" Legislature who voted for SB

390, The money PAC paid to members of the 1995

and 1997 legislatures is found opposite the law-makers’

names as set forth in Ex. 5a and 5b. Names of

law-makers who voted against deregulation are

found on Ex 7.

MPC paid 18 registered lobbyists $70,615.37 to

lobby the members of the “55" into passing SB 390 &

SB 396. Records of the Commissioner of Political

Practices note this platoon of 18 lobbyists in the 90

day session admitted wining and dining the members

of the 55 in the amount of Six Thousand Five and

94 cents ($6,005.94) to induce them to pass SB 390

and SB 396 for MPC, That the aforesaid economic

hardships on the plaintiffs and members of CLASS

and unjust enrichment consummated by PP&L were

App. 18

the direct and proximate result of gross negligence

acting in concert on the part of defendants STATE

and MPC in that STATE did negligently and

knowingly or recklessly and knowingly in the

exercise of slight or no care or deliberately enacted

SB 390 and SB 396. That SB 390 was amended by

motion of Rep. Joe QUILICI on April 15, 1997

guaranteeing to defendants MPC and PP&L “9.5%

earned return on average equity” and if not said

defendants could “include the flow through of

(sufficient) investment tax credits (to guarantee that

rate)”. In the exercise of reasonable or ordinary or

any care the members of the 1997 Legislature should

have known the disastrous economic results on

plaintiffs and CLASS of SB 390 and SB 396 and the

resulting unjust enrichment of defendants MPC and

PP&L. QUILICI further moved SB 390 be amended

to provide the Legislative Services Division be

authorized to accept gi/ts of up to $200,000 from

public light and gas utilities to cover the cost of the

activities of the transition advisory committee

provided these defendants could not charge the

ratepayers and, further, if any or all of the $200,000

is obtained by appropriations, said utilities would get

their money back. The records of the Commissioner

of Political Practices indicate that in the 1994 and

1996 campaigns Rep. QUILICI received no contributions

from PAC. In 2000 defendant QUILICI was hired as a

lobbyist for MPC [Ex. 6].

That such action on the part of defendant legislators

and MPC allowing MPC to charge exorbitant rates

rose to at least a level of gross negligence and even a

level of an absence of any care to the damage of

plaintiffs and CLASS. That South Dakota, Wyoming

and Idaho refused to deregulate.

App. 19

IX. If the Court as a matter of law Finds SB 390

and SB 396 are unconstitutional, and

PP&L and other “vendees” are ordered by

the Court to return the assets purchased

from MPC unconstitutionally, the Court

can make the vendees whole by applying

traditional “cram down” bankruptcy law

principles to allow them an interest rate

conforming to the current T Bill rate.

The QUILICI amendment of SB 390 on 4/15/97

guaranteeing MPC and PP&L an earned return on

equity of 9. 5% violated Sec. 12, Art. V of the 1972

Constitution as “special legislation” as well as Sec.

11, Art. V in that (1) a “law shall be passed by bill

which shall not be so altered or amended on its

passage through the legislature as to change its

original purpose” which was fictitiously and

deceptively denominated customer choice and (2)

each bill “shall contain only one subject, clearly

expressed in its title”.

Further, if the Court finds SB 390 and SB 396 (and

HB 474 of the 57 Legislature) are unconstitutional,

and the Court decides in the interest of justice that

although the attempted sale of its assets by MPC are

void because SB 390 and SB 396 are unconstitutional

ab initio that nonetheless MPC and PP&L are

entitled to a fair return on their investments,

plaintiffs urge that the Court has authority to rely on

U.S. Bankruptcy Court decisions [cfr. § [X, Plaintiffs’

Pre-Discovery Disclosure], some of which under the

“cram down” provisions of Title 11 of the United

States Code guarantee rate-payer creditors such as

MPC and PP&L a Tate of return on their investment

based on the T Bill rate, it being well accepted by the

App. 20

ss aceteteneenenieniieiteililiendasiiailialaaia

investment industry that Treasury Bills are a very

safe investment, the current one year rate being

3.875% [EX. 8].

X. Abolition of Immunity

Art. II, Sec. 18 of the 1972 Constitution provides

“The state...shall have no immunity from suit for

injury to a person or property, except as may be

specifically provided by a 2/3 vote of each house of

the legislature.” No such immunity legislation was

ever enacted. In view of the above facts, none of the

members of the 55 are immune from suit as

individuals under the Act of 1866 as amended in

1871. Nor is the last sentence of Sec. 8, Art. V of the

Constitution referring to debate language applicable

to votes cast for SB 390 and SB 396.

XI. Although plaintiffs and CLASS have dam-

age claims, they are entitled to injunctive

relief because they may be deprived of an

adequate remedy if PSC approves the sale to

NorthWestern

Because the proposed $1.1 billion sale to

NORTHWESTERN is imminent, Plaintiffs and

CLASS have no adequate and speedy remedy at law

and will suffer irreparable harm within the meaning

of Chapter 19 of Title 27 MCA.

XII. Accrual of cause of action

That plaintiff and CLASS did not sustain injury

from the passage of SB 390 and SB 396 until late

2000, and therefore their cause of action did not

accrue until 2000 not on the legislative effective date,

App. 21

which is probably irrelevant because of their

unconstitutionality.

XIII. Need to Insure ability of MPC to serve

plaintiffs

MPC has stopped declaring dividends, the value

of its stock has dropped from about $68 down to $12

per share, and it must purchase power in the open

market to satisfy the long term Advanced Silicon

Materials Inc. (ASIMI) contract in Silver Bow County

[75 megawatts at $400 a MW, 24 hours a day or

$720,000 a day or $21,600,000 a month]. Pendente

lite, to insure MPC has the financial strength to

continue to supply plaintiffs and CLASS with power

and gas service, the Court should appoint some

responsible public official such as involuntary

plaintiff Montana State Auditor to give to the Court

an accurate accounting of the assets MPC has

attempted to transfer, what has happened with the

cash paid to MPC because of these attempted

transfers and the impact of such transfer on the

continued ability of MPC to service its present

commercial and residential customers. Plaintiffs are

financially unable to pay their power & gas bills now.

Any deterioration in the ability of MPC to supply

their homes with gas and power would worsen an

already devastating situation.

COME NOW plaintiffs and for their Second

Cause of Action reiterate as if fully set forth at this

point all of the above allegations.

That in addition to injunctive relief plaintiffs seek

damages in the amount of Five Million Dollars

($5,000,000.00) to be paid to the CLASS plus Twenty

App. 22

SS a

Five Thousand Dollars ($25,000.00) for each of the

named plaintiffs plus attorney fees and cost reim-

bursement as set by the Court.

PRAYER

Plaintiffs pray:

1. The Court declare said SB 390 and SB 396

enacted by the 55" Legislature and HB 474

enacted by the 57" Legislature unconstitutional

and void a6 initio as violative of the 1972

Constitution and the Enabling Act of 1889

2. The Court rule the MPC customers who have

been disconnected or threatened with

disconnection for non-payment of service

charges since December, 1999 be declared

members of the Rule 23 CLASS.

3. The Court issue an order restraining MPC

from disconnecting the gas and electrical

service to any residence or business in

Montana and directing MPC to reconnect

service forthwith (without requiring a penalty

or deposit from the customer) to any residence

or business at which such service has already

been disconnected for non-payment of a bill

unless disconnected at the specific request of

the owner or lawful tenant, and to furnish

plaintiffs and the State Auditor with a com-

puter printout at MPC’s expense of the MPC

customers who have been

disconnected for non-payment of bills since

December, 1999.

4. That after MPC has complied with the order to

reconnect said customers it furnish the State

Auditor with a printout of the names and

addresses of said customers.

5. Within 30 days after MPC furnishes the State

App. 23

Se a a

Auditor with said list the State Auditor file

with the Clerk of Court for the United States

District Court for the District of Montana a

statement saying whether MPC has complied

with said order, MPC to be directed to reimburse

the State Auditor for his costs.

6. That PP&L be ordered to return to MPC the

sum of $67.8 million which MPC be ordered to

return to ratepayers with no deduction for the

cost of such rebate. That the State Auditor

report to the Court within 90 days thereafter

whether he is satisfied that PP&L and MPC

have complied with the Court’s Order.

7. That PP&L reimburse the State Auditor for

his costs in enforcing the provisions of the

Order pertaining to PP&L.

8. That members of the board of directors of MPC

be enjoined from disposing any of the MPC

stock they hold on the date of the Court’s

order, provided that any increase in the value

of stock, when sold, be surrendered to the

State Auditor to be held in a special account

under his control pending further order of the

Court.

9. PP&L be directed to deed back to MPC the

hydro and coal power generating facilities and

MPC be directed to return to PP&L $988

million received from PP&L less any profits

PP&L made provided PP&L receive a credit

for the $67.8 million returned as described in

{ 6 supra. Pan Canadian be directed to deed

back to MPC the oil & gas fields and production

in exchange for $475 million, PP&L and Pan

Canadian to receive Interest on their Investment

at the 3 or 12 month T Bill rate.

10. The fact-finder assess damages in favor of

App. 24

11.

12.

plaintiffs and the CLASS as set forth above for

the mental anguish, physical suffering and

injury and economic and hedonic loss sus-

tained by plaintiffs and members of the

CLASS.

Assess reasonable attorney fees and costs to

plaintiff for obtaining equitable relief and

relief under applicable Montana statutes and

42 USC 1988.

For such other and further relief as the Court

deems just under the circumstances.

Respectfully submitted

Robert C. Kelleher, Sr.

Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I certify I mailed a true and correct copy of the

Amended Complaint to the following in envelopes

containing sufficient first class postage:

Doug Ashford

Pan Canadian Resources

16 E. Granite St.

Butte, MT 59701

Susan Anderson Bachman, Esq.

Public Utility Division

NorthWestern Corporation

NorthWestern Building

Sioux Falls, S.D 57101

App. 25

| cc

Wayne Harper, Esq.

Montana Power Company

40 E. Broadway

Butte, MT 59701

Robert M. Murdo, Esq.

Attorney for PPLM

203 No. Ewing St.

Helena, MT 59601-4298

G. Steven Brown, Esq.

NorthWestern Energy

1313 11 Ave.

Helena, MT 59601

Kellie M. Gaston, Esq

Crowley Law Firm

Attorney for PanCanadian Gas

500 Transwestern Plaza II

PO Box 2529

Billings, MT 59103-2529

Martin Jacobsen, Esq.

Public Service Commission

1027 Billings Ave.

Helena, MT 59601

Chris Tweeten, Esq.

Assistant Attorney General

House & Senate Members

215 No. Sanders

PO Box 201401

Helena, MT 59620-1401

App. 26

ene

Betsy Griffing, Esq.

State Auditor’s Office °

Room 270, Sam W. Mitchell Bldg.

PO Box 4009

Helena, MT 59604-4019

Dated at Butte, MT this 14th day of June, 2001.

Robert C. Kelleher, Sr.

App. 27

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SINGLE Moms, INC., a non-profit

corporation; DERILYN DORSCHER,

individually and on behalf of her

minor children; CHRISTINE

McCrea, individually and on

behalf of her minor children;

Mary Kay McGrath, individually

and on behalf of her minor

children,

Plaintiffs-Appellants,

¥.

MONTANA POWER COMPANY, a

Montana corporation;

PENNSYLVANIA POWER & LIGHT, a

Pennsylvania corporation; ’

NORTHWESTERN CORPORATION, @

South Dakota corporation;

PANCANADIAN ENERGY, an Alberta

corporation; MONTANA STATE

HOUSE OF REPRESENTATIVES, The

55th Legislative Session Members;

MONTANA STATE SENATE, The 55th

Legislative Session Members;

ENCANA ENERGY RESOURCES, INC.,

Defendants-Appellees.

No. 02-35361

D.C. No.

CV-01-00046-DWM

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

7857

7858 SINGLE Moms v. MontTANA PoweR

Submitted June 3, 2003*

Seattle, Washington

Filed June 10, 2003

Before: Donald P. Lay,** Warren J. Ferguson, and

Ronald M. Gould, Circuit Judges:

Opinion by Judge Gould

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2).

**The Honorable Donald P. Lay, Senior United States Circuit Judge for

the United States Court of Appeals for the Eighth Circuit, sitting by desig-

nation.

‘eee erica erie ei

SINGLE Moms v. MonTANA POWER 7861

COUNSEL

Robert C. Kelleher, Sr., Butte, Montana, for the plaintiffs-

appellants.

G. Steven Brown, Helena, Montana, and Dennis R. Lopach,

Northwestern Corporation, for defendant-appellee Montana

Power Company.

Chris D. Tweeten, Montana Attorney General’s Office,

Helena, Montana, for defendant-appellee Montana legislators.

Michael Lesch and Stephen H. Orel, LeBoeuf, Lamb, Greene

& MacRae, New York, New York, and Robert M. Murdo,

Jackson, Murdo, Grant & McFarland, Helena, Montana, for

defendant-appellee PPL Montana.

7862 SINGLE Moms v. MonTANA PoweR

Kellie M. Gaston, Crowley, Haughey, Hanson, Toole & Diet-

rich, Billings, Montana, for defendant-appellee Encana

Energy Resources, Inc.

OPINION

GOULD, Circuit Judge:

The plaintiffs, a group of single Montana mothers, appeal

from the district court’s dismissal of their 42 U.S.C. § 1983

claims against the defendant Montana Power Company

(MPC), an electric and natural gas utility company. The plain-

tiffs claim that MPC violated their constitutional rights when

MPC hired lobbyists to influence the Montana legislature to

enact legislation to deregulate the Montana energy markets.

Because MPC’s lobbying efforts were not “state action”

implicating the single mothers’ constitutional rights, and

because we reject the plaintiffs’ other claims, we affirm the

district court’s dismissal.

In the mid-1990s, defendant MPC paid about $70,000 to

professional lobbyists in exchange for the lobbyists’ efforts to

influence the Montana legislature to deregulate Montana’s

energy markets. MPC’s lobbyists spent about $6,000 enter-

taining Montana legislators, and MPC’s “political action com-

mittee” contributed about $17,000 to legislators’ campaign

funds.

In 1997, the Montana legislature enacted the Electric Util-

ity Industry Restructuring and Customer Choice Act, Mont.

Code Ann. § 69-8-101 et seqg., and the Natural Gas Utility

Restructuring and Customer Choice Act, Mont. Code Ann.

§ 69-3-1401 et seq., which were designed to give Montana

customers the freedom to choose their energy suppliers. See

SINGLE Moms v. MontTANA Power 7863

Mont. Code Ann. § 69-8-102 et seq.; Mont. Code Ann. § 69-

3-1403. One consequence of energy deregulation, according

to the plaintiffs, was an electricity and gas rate increase.

The plaintiffs, who say they are too poor to buy gas and

electricity in the newly deregulated Montana utility market,

filed suit in federal district court under 42 U.S.C. § 1983

claiming that MPC violated their rights under the United

States and Montana Constitutions. Specifically, the plaintiffs

claim that MPC violated their federal Fourteenth Amendment

substantive due process and equal protection rights and vio-

lated their Montana constitutional rights to equal protection

and “to pursue life’s basic necessities.” The plaintiffs also

filed suit against eighty-three Montana legislators and two

energy companies in addition to MPC. The plaintiffs sought

$5 million in money damages for a class of single Montana

mothers, $25,000 for each single mother identified in its

amended complaint, and an injunction forbidding MPC from

disconnecting the single mothers’ gas and electrical services

if they fail to pay for services in the future.’ The district court

granted the defendants’ motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6). The plaintiffs appeal.

The plaintiffs claim that MPC—a privately owned and

operated corporation—violated their rights under the United

States and Montana Constitutions by hiring lobbyists and

attempting to influence the legislature.” We affirm the district

court’s dismissal of these constitutional claims because

MPC’s lobbying acts are not attributable to the State of Mon-

"The district court denied the plaintiffs’ request for an injunction, and

we summarily affirmed the district court’s decision in an unpublished dis-

position. See Single Moms, Inc. v. Montana Power Co., No. 01-35756,

2001 WL 1398480 (9th Cir. Nov. 8, 2001).

*We review de novo the district court’s dismissal for failure to state a

claim. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).

7864 SINGLE Moms v. MonTANA PowER

tana or to any other government entity and so cannot violate

the plaintiffs’ constitutional nghts.

[1] We begin with the plaintiffs’ federal constitutional

claims. The United States Constitution protects individual

rights only from government action, not from private action.*

Only when the government is responsible for a plaintiff's

complaints are individual constitutional rights implicated.

Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n.,

531 U.S. 288, 295 (2000). So MPC cannot violate the plain-

tiffs’ Fourteenth Amendment substantive due process or equal

protection rights unless the State of Montana is somehow

responsible for MPC’s lobbying activities.

[2] The Supreme Court has held that an ostensibly private

organization or individual’s action may be treated as the gov-

ernment’s aetion “if, though only if, there is such a close

nexus between the State and the challenged action that seem-

ingly private behavior may be fairly treated as that of the

State itself.” Brentwood Academy, 531 U.S. at 295 (internal

quotation marks omitted). See also Lee v. Katz, 276 F.3d 550,

554 (9th Cir. 2002).* The Supreme Court has identified facts

that bear on whether private action may be treated as that of

the state. The Court has held, for example, that a challenged

*Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) (observing that

“most rights secured by the Constitution are protected only against

infringement by governments”) (internal quotation marks and citations

omitted). See also United States v. Morrison, 529 U.S. 598, 621 (2000)

(holding that the Fourteenth Amendment “ ‘erects no shield against merely

private conduct, however discriminatory or wrongful’ ”) (quoting Shelley

v. Kraemer, 334 U.S. 1, 13 (1948)).

“In determining whether MPC’s lobbying efforts constituted “state

action” sufficient to implicate the federal Constitution’s Fourteenth

Amendment, we also necessarily determine whether MPC’s action

occurred “under color of state law” within the meaning of the Supreme

Court’s § 1983 jurisprudence. See Brentwood Academy, 531 U.S. at 295

n.2 (“If a defendant’s conduct satisfies the state-action requirement of the

Fourteenth Amendment, the conduct also constitutes action ‘under color

of state law’ for § 1983 purposes.”).

SINGLE Moms v. MonTANA PowER 7865

action by a private actor may be state action when: (1) the

government compelled the action using its “coercive power”

or provided “significant encouragement, either overt or

covert,” for the action, Blum v. Yaretsky, 457 U.S. 991, 1004

(1982); (2) the government and the private actor willfully par-

ticipated in joint activity, Lugar, 457 U.S. at 941; (3) the gov-

ernment controlled a nominally private actor, Pennsylvania v.

Bd. of Dirs. of City Trusts of Philadelphia, 353 U.S. 230, 231

(1957) (per curiam); or (4) the government delegated a “pub-

lic function” to the private actor, cf, e.g., West v. Atkins, 487

U.S. 42, 56 (1988); Edmonson v. Leesville Concrete Co., 500

U.S. 614, 627-628 (1991); Evans v. Newton, 382 U.S. 296,

299, 301, (1966).

[3] MPC’s efforts to influence the passage of legislation by

lobbying state legislators bore no characteristics that would

render the company’s actions fairly attributable to the State of

Montana. This is so because, accepting the plaintiffs’ allega-

tions as true, MPC influenced the State of Montana, rather

than the reverse.

[4] First, the State of Montana did not exercise “coerciv:

power” or provide “significant encouragement” to MPC.

Blum, 457 U.S. at 1004. Rather, MPC provided encourage-

ment to the State of Montana.

[5] Second, neither the State of Montana nor its agents

“willfully participated in joint activity’ with MPC, Lugar,

457 U.S. at 941, even if, as the plaintiffs allege, MPC lobby-

ists drafted and proposed the Montana statute that was

enacted by the legislature. The legislators in carrying out their

public duties were not “agents” of the State of Montana.

When state legislators consider, draft, and vote for a statute—

even if they do so with a constituent’s help—they are legiti-

mately executing the duties of their offices, not acting for the

state with private parties in a “joint activity.” Moreover,

MPC’s lobbyists were acting for MPC’s private interests and

not for the state.

eee

7866 SINGLE Moms v. MontTANA POWER

[6] Third, the State of Montana does not “control” MPC,

though it does regulate many particulars of MPC’s business.

That a private entity is regulated by government does not

transform that private entity’s conduct mto state action. See

Jackson v. Metro. Edison Co., 419 U.S. 345, 350-51 (1974)

(“The mere fact that a business is subject to state regulation

does not by itself convert its action into that of the State for

purposes of the Fourteenth Amendment. Nor does the fact that

the regulation is extensive and detailed, as in the case of most

utilities, do so.”) (citation omitted).

[7] Fourth, the State of Montana has not delegated a “‘pub-

lic function” to MPC. MPC’s petitioning of the government

is a quintessential private function. See E. R.R. Presidents

Conf. v. Noerr, 365 U.S. 127, 137 (1961).

[8] We hold that MPC’s efforts to influence lawmakers

through lobbying were private acts not fairly attributable to

the State of Montana. See First Nat’l. Bank of Omaha v. Mar-

quette Nat’l. Bank of Minneapolis, 636 F.2d 195, 198 (8th

Cir. 1980) (holding without discussion that a bank’s lobbying

activities designed to obtain the passage of a Minnesota stat-

ute were not “state actien”)* MPC’s lobbying activities thus

*The Tenth Circuit has held that the New Mexico State Bar’s employ-

ment of a lobbyist “to influence members of the State Legislature on

issues of public policy” constituted “state action.” Arrow v. Dow, 636 F.2d

287, 289 (10th Cir. 1981). Arrow is not inconsistent with our holding. In

Arrow, unlike bere, the entity that hired the lobbyist was a state agency.

See id. (noting that the Supreme Court of New Mexico created the Bar,

adopted its governing rules, and required all lawyers to be members). See

also Hass v. Or. State Bar, 883 F.2d 1453, 1460 (9th Cir. 1989) (holding

that there is “no doubt that the [Oregon] Bar is a public body, akin to a

municipality for the purposes of the state action exemption” from the

Sherman Act); Barnard v. Chamberlain, 897 F.2d 1059, 1062 (10th Cir.

1990) (holding that Utah State Bar’s publishing of a newspaper was “state

action” since the Utah State Bar is a governmental entity established by

state law and created as an administrative agency of the Utah Supreme

Court).

SINGLE Moms v. Montana Power 7867

could not have violated the plaintiffs’ federal constitutional

rights.

Even if there existed significant government involvement

in MPC’s actions, we nonetheless would hold that MPC’s

actions were not fairly attributable to the State of Montana.

The Supreme Court has held that there may be “some counter-

vailing reason against attributing activity to the government,”

even if facts suggest significant government involvement in

private action. Brentwood Acad., 531 U.S. at 295-96. Here,

MPC’s lobbying was an exercise of its lawful First Amend-

ment right to petition the government, and that is a counter-

vailing reason against attributing MPC’s activity to the State

of Montana.

The Supreme Court has stressed the importance of citizens’

exercising their First Amendment right to petition the govern-

ment:

In a representative democracy such as this, [the leg-

islative and executive] branches of government act

on behalf of the people and, to a very large extent,

the whole concept of representation depends upon

the ability of the people to make their wishes known

to their representatives.

Noerr, 365 U.S. at 137. If we deemed citizens’ lawful and

protected efforts to influence government “state action,” then

citizens could be held liable whenever their potitical activities

played a role in government action later determined to have

~ been unconstitutional. Such a holding would create a new cat-

egory of state action (lobbying) and a new battlefield—the

nation’s courtrooms—in political contests. Such a holding

also would have a chilling effect on legitimate political

expression in derogation of the First Amendment. It would

threaten to deprive government of useful information that pri-

vate citizens might otherwise provide. This is a significant

countervailing reason against attributing MPC’s lobbying

7868 SINGLE Moms v. MontTANA PowER

activity to the government. MPC’s lobbying activities were

the typical actions of a private individual or corporation that

seeks to tell lawmakers what it wants or needs from govern-

ment; such lobbying activities, whether an aid or a hindrance

to good governance, are not “state action” implicating indi-

vidual constitutional rights.

{9] Having rejected the plaintiffs’ federal constitutional

claims, we turn to the plaintiffs’ state constitutional claims.

Like the United States Constitution, the Montana Constitution

protects individual rights from government action, not private

action. See, e.g., Montana v. Long, 700 P.2d 153, 157 (Mont.

1985) (holding, “in accordance with well-established constitu-

tional principles,” that the Montana Constitution’s privacy

tight protects against “state action only”); Gulbrandson v.

Carey, 901 P.2d 573, 578 (Mont. 1995) (holding that Mon-

tana Constitution’s Equal Protection Clause protects against

“arbitrary and discriminate state action”) (emphasis added);

In re: Yeilowstone River, 832 P.2d-1210, 1214 (Mont. 1992)

(holding that the Montana Constitution protects water rights

against “unreasonable state action”) (emphasis added). So

MPC cannot violate the single mothers’ Montana constitu-

tional rights to equal protection, Mont. Const. Art. II, § 4, and

to “pursu[e] life’s basic necessities,” Mont. Const. Art. II, § 3,

unless the State of Montana is responsible for MPC’s lobby-

ing activities.

[10] The parties have not cited, nor have we found, any

Montana judicial decision addressing whether or when private

action may constitute “state action” for purposes of the Mon-

tana Constitution. However, the Montana Supreme Court fre-

quently has looked to the United States Supreme Court’s

interpretations of the United States Constitution for guidance

in interpreting similar concepts in the Montana Constitution,

see, e.g., Gulbrandson, 901 P.2d at 578 (looking to United

States Supreme Court cases for guidance on equal protection);

Montana v. Christensen, 797 P.2d 893, 895-97 (Mont. 1990)

(looking to United States Supreme Court cases for guidance

SINGLE Moms v. MonTANA Power 7869

on the exclusionary rule), and we conclude the Montana

Supreme Court would do so here. Because MPC’s lobbying

was not “state action” implicating the United States Constitu-

tion, we hold that MPC’s lobbying also was not “state action”

implicating the Montana Constitution. The district court prop-

erly dismissed the plaintiffs’ Montana constitutional claims.°

The plaintiffs also appeal the district court’s dismissal of

their claims against eighty-three Montana legislators and two

energy companies in addition to MPC. We affirm the district

court’s dismissal of these claims.

[11] First, the plaintiffs claim that the defendant Montana

legislators violated the single mothers’ constitutional rights

when the legislators voted to enact legislation deregulating the

Montana energy markets. But because the Montana legislators

“have an absolute common-law immunity against civil suit for

their legislative acts,” Chappell v. Robbins, 73 F.3d 918, 920

(9th Cir. 1996), the district court properly dismissed the

claims against them.

[12] Second, the plaintiffs claim that defendants Pennsylva-

nia Power & Light (PPL) and Encana Energy Resources, Inc.,

were “unjustly enriched” by certain transactions that occurred

after the deregulation of Montana’s energy markets. Taking as

true the plaintiffs’ factual allegations, as we must at this stage,

the plaintiffs nonetheless failed to allege that either PPL or

Encana engaged in misconduct or possesses property that

properly belongs to the single mothers. See Sebena v. Mon-

*To the extent the plaintiffs allege that MPC’s disconnecting or threat-

ening to disconnect them from the power grid for nonpayment of their

bills violated their state or federal constitutional rights, the plaintiffs’

claims are not cognizable because those actions also were not “state

action.” See generally Jackson, 419 U.S. at 353 (“[C]ourts have rejected

the contention that the furnishing of utility services is either a state func-

tion or municipal duty.”).

enn

7870 SINGLE Moms v. MontANA PowER

tana, 883 P.2d 1263, 1268 (Mont. 1994); Lawrence v. Clep-

per, 865 P.2d 1150, 1156 (Mont. 1993). The plaintiffs failed

to state an unjust enrichment claim under Montana law, and

the district court properly dismissed its claims against PPL

and Encana. Moreover, to the extent the plaintiffs’ claims

against PPL and Encana were brought under § 1983, the dis-

trict court properly dismissed them because the plaintiffs

failed to allege that the companies violated the single moth-

ers’ federal constitutional or statutory rights and because the

companies were not acting “under color of law.” 42 U.S.C.

§ 1983.

AFFIRMED.

UNITED STATES DISTRICT COURT

FOR DISTRICT OF MONTANA

Butte Division

OPINION AND ORDER

CV 01-46-BU-DWM

SINGLE MOMS, INC., et al.,

Plaintiffs,

vs.

MONTANA POWER COMPANY, et al.,

Defendants.

FILED qu

MISSOULA, MT

2m? FEB -6 PH 4 48

Pa FY Cle CLERK

DoPUTY Cle

a ee

I. Introduction

In 1997, the Montana Legislature passed Senate

Bills 390 and 396 as the “Electricity Utility Industry

Restructuring and Customer Choice Act of 1997,”

M.C.A. § 69—8-101 et seq., deregulating the utility

industry in Montana. In its lobbying efforts to

encourage passage of these bills into law, Defendant

Montana Power Company made payments totalling

$70,615.37 to eighteen different lobbyists. The 55"

Montana Legislature passed the Deregulation Act

of 1997 at a time when Montana’s electricity prices

were the highest in the region. Pursuant M.C.A.

§ 69-3-1401, regulation of consumer rates remains

under the purview of the Montana Public Service

Commission, despite deregulation of power purchases.

On November 2, 1998, Pennsylvania Power and

Light Global, Inc. announced the $988 million

purchase of 11 hydroelectric plants and one

coalfired plant from MPC. MPC also sold its

unregulated wholesale power business to

Continental Energy of Stevensville, Maryland, for

$85.5 million and its electrical transmission and

distribution properties to NorthWestern Corp. of

Sioux Falis, South Dakota, for $1.1 billion.

PanCanadian Energy, Inc. purchased MPC’s

exploration, midstream, production and marketing

division for $475 million. MPC has announced that it

intends to reinvest income from the sales in Touch

America, MPC’s telecommunications subsidiary.

On May 28, 2001, Plaintiffs filed this suit against

MPC, PPLM, NorthWestern, PanCanadian, Conti-

nental Energy, and the members of the House and

Senate, of Montana’s 55“ Legislative Session who

voted for the act, alleging violations of 42 U.S.C. §

1983 & 1988, the United States Constitution, and the

1972Montana Constitution. Plaintiffs seek relief in

the form of an injunction against MPC forbidding the

disconnection of any gas or electrical services and

compelling a report to the state auditor of all

disconnected customers, the return of $67.8 million

to MPC customers from PP&L, voiding of all the

above sales under the 1997 utility deregulation and

damages for pain and suffering and economic losses.

Plaintiffs filed an Amended Complaint on June

15, 2001 and voluntarily terminated Continental

Energy from this matter. After conducting a hearing

on June 27, 2001 this Court denied Plaintiffs’ Motion

for a Temporary Restraining Order, treating it as a

Motion for Preliminary Injunction. That Order has

been affirmed by the Ninth Circuit on appeal.

Pending before the court are individual Motions

to Dismiss filed by Defendants PPLM,

NorthWestern, PanCanadian, the 55th Montana

Legislature, and the Montana Power Company.

IT. Anzitysis

A. Rule 12(b) (6) Standard

In considering whether to dismiss pursuant to

Federal Rule of Civil Procedure 12 (b) (6), the

| question becomes whether in the light most favorable

| to plaintiffs the complaint states any valid claim for

relief. Conley v. Gibson, 355 U.S. 41, 78 (1957). “The

issue is not whether plaintiff will ultimately prevail,

but whether he is entitled to offer evidence to

support his claims.” Scheuer v.Rhodes, 416 U.S. 232,

236 (1974).

B. 42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983 there

must be a “deprivation of a federal constitutional or

statutory right” “under color of state law” Wood v.

strander, 879 F.2d 583, 587 (9th Cir. 1989). “Color

of state law” goes to the original intent of the Civil

Rights laws. Monroe v. Pape, 365 U.S. 167, 170

(1961) (the rights secured by the Constitution of the

United States when they are assailed by any State

law or under color of any State law... carrying out

the principles of the civil rights bill, which has since

become a part of the Constitution.”)

Title 42 U.S.C. § 1983, states, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory... subjects, or causes to be

subjected, any citizen of the United States or

other person... to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

State regulation of a public utility is not considered

to be under color of state law or “state action.” Jackson

v. Metropolitan Edison Co., 419 U.S. 345, 350-352

(1974). Although the Montana Public Service

Commission approved the transaction between MPC

and PPLM, Plaintiffs here have, not established

a nexus between the State of Montana and the

challenged result of increased utility rates.

“[C]ourts have rejected the contention that the

furnishing of utility services is either a state function

or municipal duty.” Jackson, 419 U.S. at 353 (testing

the theory of a private utility company’s actions

under color of state law). The Montana Public

Services Commission does regulate MPC, and MPC

does enjoy a monopoly in Montana; however, neither

heavy regulation by the state nor monopoly status

brings the action here “under color of state law.” Id.

at 351.

To act under color of state law within the meaning

of 42 U.S.C. § 1983 there must be “usurpation or

corruption of official power by the private litigant,

or a surrender of judicial power to the private

litigant in such a way that the independence of the

enforcing officer has been compromised to a signifi-

cant degree.” Lugar v. Edmondson Oil Co., 457 U.S.

922, 926 (1982).

Plaintiffs make a claim under § 1983 against

MPC, alleging a “violation of their civil and U.S.

constitutional rights including denial of procedural

and substantive due process and of equal protection

within the meaning of 42 USC § 1983 and § 1988.”

The “federal constitutional or statutory right[s]” that

Plaintiffs plead are “safety and happiness” and

“human dignity.” Essentially, Plaintiffs seem to claim

that the funds that MPC expended on lobbying and

influencing passage of the Deregulation Act amount

to a civil rights violation under § 1983, apparently

claiming that this was a usurpation or corruption of

state power. MPC neither usurped not corrupted

state power by expending $70,615.37 in 1997 on.

lobbying. MPC neither deprived Plaintiffs of a

federally guaranteed right nor acted under color of

state law here.

Plaintiffs make claims against PPLM under 42

U.S.C. § 1983, alleging that PPLM made unconscionable

profits (“unjust enrichment’) from Plaintiffs and had

presumptive knowledge of MPC’s and the 55" Montana

Legislature’s wrongdoing in passing the Deregulation

| Act of 1997. No such corruption of the Montana

| legislature or lack of independence on the part of

MPSC can be found in PPLM’s purchase of power

plants. PPLM played no discernible part in MPC’s

lobbying efforts and had no compromising influence

on the MPSC’s allowance of the purchase of power

| plants, nor have Plaintiffs alleged any such

influence. No cause of action lips against PPLM

under 42 U.S.C. § 1983.

C. Unjust Enrichment

Plaintiffs’ also claim “unjust enrichment” against

PPLM. “The phrase ‘unjust enrichment’ is used...to

characterize the result...of a failure to make

restitution...for property or benefits received under

such circumstances as to give rise to a legal or

equitable obligation to account therefore.” Lawrence

v. Clepper, 263 Mont. 45, 53, 865 P.2d 1150, 1156

(1993). Here, the original purchase from MPC and

the prices levied on electrical suppliers constitute the

“benefit” which is required for “unjust enrichment.”

The control of such benefits is under the exclusive

jurisdiction of the Federal Energy Regulatory

Commission if such wholesale benefits are across

state lines. 16 U.S. C. § 824 (a)-(c).

Any benefits received by PPLM would have been

at the expense of MPC and other out-of-state

suppliers. It is an impermissible stretch of scope to

attribute the $67.8 million earnings of PPLM in 2000

to Plaintiffs’ MPC bills. Any arguments whether the

rates were unconscionable would be exclusively

under the jurisdiction of FERC and would be

properly brought by wholesalepurchasers of power in

privity with PPLM. Plaintiffs have no cause of action

under “unjust enrichment” and dismissal is proper

here.

D. NorthWestern’s Rule 12 (b) (6) Motion

Plaintiffs here ask for “injunctive relief because

they may be deprived of an adequate remedy if the

Public Service Commission approves the sale to

NorthWestern.” The PSC approved this sale in late

January of 2002.

NorthWestern had no input into the 1997 lobbying

efforts of MPC; it has transacted no business with

anyone pending MPSC’s consideration of its $1.1

billion bid to MPC. It has no privity with any Plaintiff,

excepting MPSC as an involuntary plaintiff; and it

has, encouraged Plaintiffs to seek redress of

grievances through the MPSC approval process.

When viewed in a light most favorable to Plaintiffs,

there is no valid claim for relief in this Court against

NorthWestern .

E. PanCanadian’ s Rule 12 (b) (4) (5) , & (6) Motion

Fed. R. Civ. P. 12 (b) 4 & 5 allow for the quashing

of a cause of action for insufficiency of process or

service of process. However, the usual remedy is

quashing, not dismissal, where there is a reasonable

prospect for subsequent effective service. Electrical

Specialty Co. v. Road and Ranch Supply. Inc., 967

F.2d 309, 313-314 (9th Cir. 1992) Here there is no

question that the naming and service were improper,

but quashing is the proper remedy, not dismissal.

However, PanCanadian has also moved for dismissal

under Fed. R. Civ. P.12(b) 6.

Plaintiffs, in their Amended Complaint, ask for a

rescission of contract between MPC and

PanCanadian. PanCanadian had no part in the passage

of deregulation laws, and has dealt only with MPC

and MPSC—not with any of the voluntary plain-

tiffs—and opposes a contract rescission previously

approved by one of the involuntary Plaintiffs, MPSC.

PanCanadian also plays no role in any threatened or

actual utility disconnections. Plaintiffs state no valid

claim in this Court against PanCanadian.

F. The 55th Montana Legislature’s Motion to

Dismiss.

Corporate lobbying enjoys First Amendment

protection. First National Bank of Boston v. Bellotti,

435 U.S. 765, 766 (1978)

(“the expression of views on an issue of public

importance, is at the heart of the First

Amendment’s concern. There is no support in

the First or Fourteenth Amendment...that

such speech loses the protection otherwise

afforded it by the First Amendment simply

because its source is a corporation ... ”).

Onthe publicly important issue of deregulation of

utilities, MPC’s expenditure of $70,615.37 in

lobbying efforts constituted no legal impropriety.

Legislators enjoy immunity from prosecution

when acting in their capacity as lawmakers. “These

[immunities] are thus secured, not with the intention

of protecting the members against prosecutions for

their own benefit, but to support the rights of the

people, by enabling their representatives to execute

the functions of their office without fear of prosecutions,

civil, or criminal.” Tenney v. Brandhove, 341 U.S. 367,

373-374 (1951). This immunity specifically addresses

legislators who are believed to have acted improvidently

or corruptly. Supreme Court of Virginia v. Consumers

Union of the U.S., 446 U.S. 719, 732, 733 (1980) .

The 83 Montana legislators who voted for the

Deregulation Act of 1997 were dealing with a

controversial issue in their official capacity as

legislators. Many citizens, corporations, and lawmakers

who contemplated deregulation believed that utility

rate reductions would follow deregulation. The

nation’s equivocal attitude toward power regulation

was expressed by The Boston Globe in 1997; “Even

most critics of deregulation agree that the high cost

of power in Massachusetts means deregulation is

inevitable...and that competition is the way to drive

down prices.” The Boston Globe C4 (Nov. 18, 1997).

Considerable debate on all sides of the issue of

deregulation took place in 1997. Whether or not it

turned out to be correct in the short, mid, or long

term, reasonable interpretation of the situation in

1997 based on experiences at the time was that

allowing the invisible hand to control the free market

in utilities would cause prices to drop for end users.

Regardless, the 83 Montana legislators are immune

from suit in the current action addressing their

decisions as lawmakers under_Tenney, supra.

G. Montana Constitutional claims

Article II, § 3 & 4 of the Montana Constitution

guarantees “the rights of Pursuing life’s basic

necessities,” “seeking their safety, health...,” and

“individual dignity.” The federal Constitution does

not address the right to “life’s basic necessities” or to

have electrical power without payment. Plaintiffs

argue that the Montana Constitution’s Declaration of

Rights encompasses the right to not be disconnected

from a utility provider arguing that utilities must be

construed as life’s basic necessities.

Shutting off power for failure to pay power bills

does not reach any enumerated fundamental right

under the Montana Constitution. This Court need

not declare unconstitutional laws leading to the

rights and abilities of MPC to shut off Plaintiffs’

power.

Since no fundamental right has been infringed,

this Court must only decide whether the legislation

was colorably reasonable under the circumstances

existing in 1997. Considerable debate on all sides of

the issue of deregulation took place in 1997.

A reasonable interpretation of the situation in 1997

based on experiences at the time was that allowing

the invisible hand to control the free market in

: 9

Spinner Sos eee

utilities would cause prices to drop for end users.

The Deregulation Act of 1997 is reasonable and

rationally related to a legitimate state purpose,

namely regulating commerce.

Wherefore IT IS HEREBY ORDERED that:

1. Pennsylvania Power and Light Montana’s Motion

to Dismiss (docket #26) is GRANTED.

2. NorthWestern Corporation’s Motion to Dismiss

(docket #56) is GRANTED.

3. PanCanadian Energy’s Motion to Dismiss (docket

#28) is GRANTED.

4. The 83 members of the 55th Montana

Legislation’s Motion to Dismiss (docket #20) is

GRANTED.

5. Montana Power Company’s Motion to Dismiss

(docket #50) is GRANTED.

6. All other pending motions are DENIED as moot.

All claims against all parties having thus been

dismissed, IT IS FURTHER ORDERED that this

matter is DISMISSED.

Dated this day of February ,2002

United States Supreme Court

cc Jacobson

Tweeten

Dyre

Richardson

Kelleher

Lopach

Brown

Murdo

APPENDIX D

Section One, Fourteenth Amendment

(Ratified July 9, 1868): A\l persons born or

naturalized in the United States and subject to

the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive

any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Section Four, Article IV: The United States

shall guarantee to every State in this Union a

Republican Form of Government, and shall

protect each of them against Invasion; and on

Application of the Legislature, or of the

Executive (when the Legislature cannot be

convened) against domestic violence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.