A Helena district judge has done it again: made a high-profile ruling that has the potential to upset the applecart.
In April, Judge Jeffrey Sherlock rocked the taxation-for-education world by declaring unambiguously that Montana's way of paying for education in its public elementary, middle and high schools violated the state Constitution in several ways.
This past week, he shook another Montana institution to its roots, saying that grazing and farming leaseholders get an unconstitutional preference in the awarding of state leases.
As happened three months ago in the school case, reaction to the recent lease ruling was swift and heated.
"This decision may have very detrimental economic impacts on these producers who suddenly find themselves without the lease of a sizable piece of land they have historically depended on," said Steve Pilcher, executive vice president of the Montana Stockgrowers Association.
He may be right, but, as in the school-funding case, the opinion may just be the catalyst for solving a long-standing inequity or problem.
For example, the judge put a delayed effective date on his school-funding opinion in order to give the Legislature and administration time to address the problem (the lawmakers' every-other-year regular session starts in January).
That timetable was jeopardized in late June when the state decided to appeal the ruling to the Supreme Court, but the justices recognized the timing issue and put the case on a fast track so they can rule before the legislative session starts.
If it stands, Sherlock's school ruling will send the state back to the chalkboard to, among other things, reconfigure the school-funding system.
The ruling was cheered by educators and other Montanans who think the system is broken; it was sharply criticized by others, especially the lawmakers who crafted the system.
We'll have to stay tuned to learn how it comes out, but policy makers on both sides of the issue hope to turn it to their advantage.
That's possible because Sherlock's ruling didn't provide a solution. It said the present system is unacceptable, but it threw the problem-solving back where it belongs: with the state's elected representatives.
Now Sherlock's judicial focus has turned to the approximately 6,000 Montana farmers and ranchers who have for years benefitted from a preference in the way crop and grazing leases on state land have been awarded.
Under the law, a current leaseholder can head off a competing bid simply by matching that bid amount.
That's what happened to Bill Broadbent of Geyser. He wanted to lease a nearby chunk of state land so he bid four times what was being paid by neighbors Gale and Andrea Harlow. The Harlows matched the bid, however, and were allowed to keep the lease -- though the state Land Board cut the rate by more than half.
Broadbent sued, and Sherlock agreed with him that the current-leaseholder preference unconstitutionally prevented the state from getting the maximum benefit possible from state lands (and, by the way, prevented Broadbent from expanding his operation with a competitive bid for a public resource).
The ruling undoubtedly will be appealed, but based on some other rulings it wouldn't surprise us to see it upheld. We'd offer a couple of points:
First, as came to mind with earlier rulings about maximizing the value of state landholdings, somewhere there should be room for the larger case that dollars and cents aren't the only components of "value."
Economic stability, lifestyle, a clean environment: All have tremendous value -- "priceless" as the credit card commercials say -- and you can't necessarily put a dollar amount on them.
Second, in his lease decision Judge Sherlock has made another ruling based on the state Constitution, and in the first, the school case, he said the Legislature needed to revisit education funding within the parameters of -- and addressing the values laid out in -- the Montana Constitution.
In the lease case, it seems to us he's left the door open to legislative rule-making that would give guidance to the state Land Board as it considers what "value" means when considering whether to renew or replace a lease.
A final note: Contrary to what some critics are saying, Judge Sherlock is not legislating from the bench; he is interpreting laws based on what is, in fact, fairly clear language in the Constitution.
A year or two from now, we may marvel at the good that came from these controversial rulings.
