2017 Montana Legislature

SENATE JOINT RESOLUTION NO. 15

INTRODUCED BY D. HOWARD, D. ANKNEY, S. BERGLEE, M. BLASDEL, B. BROWN, D. BROWN, E. BUTTREY, P. CONNELL, A. DOANE, R. EHLI, J. ESSMANN, J. FIELDER, S. FITZPATRICK, W. GALT, F. GARNER, T. GAUTHIER, C. GLIMM, E. GREEF, S. GUNDERSON, G. HERTZ, S. HINEBAUCH, J. HINKLE, M. HOPKINS, B. HOVEN, L. JONES, D. KARY, A. KNUDSEN, C. KNUDSEN, M. LANG, S. LAVIN, D. LENZ, F. MANDEVILLE, W. MCKAMEY, F. MOORE, D. MORTENSEN, A. OLSZEWSKI, R. OSMUNDSON, A. REDFIELD, K. REGIER, T. RICHMOND, A. ROSENDALE, S. SALES, D. SALOMON, D. SKEES, J. SMALL, C. SMITH, N. SWANDAL, R. TEMPEL, F. THOMAS, B. TSCHIDA, G. VANCE, C. VINCENT, S. VINTON, P. WEBB, R. WEBB, J. WELBORN, D. ZOLNIKOV

A JOINT RESOLUTION OF THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA MAKING THE DETERMINATION THAT IT WOULD BE AN UNCONSTITUTIONAL ACT OF LEGISLATION, IN VIOLATION OF THE CONSTITUTION OF THE STATE OF MONTANA, AND WOULD VIOLATE THE FIRST AMENDMENT RIGHTS OF THE CITIZENS OF MONTANA, SHOULD THE SUPREME COURT OF THE STATE OF MONTANA ENACT PROPOSED MODEL RULE OF PROFESSIONAL CONDUCT 8.4(G).

WHEREAS, the Supreme Court of the State of Montana, at the urging of an Illinois not-for-profit corporation -- the American Bar Association (ABA)-- entered its Order of October 26, 2016, In Re The Rules of Professional Conduct No. AF 09-0688, proposing to adopt ABA Proposed Rule of Professional Conduct 8.4(g); and

WHEREAS, by the close of the Supreme Court's 45 day public comment period the People of Montana overwhelming expressed their virtually unanimous opposition to Proposed Rule 8.4(g) through hundreds of comments pointedly observing that the proposed rule seeks to destroy the bedrock foundations and traditions of American independent thought, speech, and action, and in response, rather than reject the proposed rule at the close of the comment period, the Supreme Court of the State of Montana relentlessly pursues adoption of Proposed Rule 8.4(g) by extending the time to consider it; and

WHEREAS, Proposed Rule of Professional Conduct 8.4(g) provides it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law; and

WHEREAS, Comment [4] to ABA Model Rule 8.4(g) clearly details Model Rule 8.4(g)'s expansive over-reach into every attorney's free speech, opinions, and social activities, when it states: "Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law, operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law"; and

WHEREAS, the ABA is incorporated as a nonprofit corporation under the laws of the State of Illinois, with the stated purpose of promoting the uniformity of legislation throughout the United States without regard to the 50 sovereign state constitutions, thus it was created as a national political advocacy group with a social and political agenda; and

WHEREAS, the ABA, in its legal capacity as a nonprofit corporation is not legally authorized to give legal advice, but rather is engaged in political advocacy and pursues its agenda by proposing rules that may serve as models for the ethics rules of individual states, even though it has no legal capacity to speak on behalf of any attorney nor as the mouthpiece of attorneys throughout the United States, but may only speak as a political advocacy group on behalf of its own corporate social and political agenda; and

WHEREAS, the Illinois corporation in question, the ABA, states that it seeks to force a cultural shift in the legal profession through Proposed Rule 8.4(g), even though the ABA has determined that the conduct sought to be prohibited is so uncommon as to be nearly non-existent (ABA Standing Committee on Ethics, December 22, 2015) and even though ABA's own Committee on Professional Discipline finds the rule to be unconstitutional, for a variety of constitutional reasons (ABA Standing Committee on Professional Discipline, March 10, 2016); and

WHEREAS, pursuant to Article III, section 1, of the Montana Constitution, the power of the government of this state is divided into three distinct branches -- legislative, executive, and judicial -- and that no person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others; and

WHEREAS, pursuant to Article V, section 1, of the Montana Constitution, the legislative power is vested in a Legislature consisting of a Senate and a House of Representatives; and

WHEREAS, the Montana Supreme Court may make rules governing admission to the bar and the conduct of its members; and

WHEREAS, the Constitution for the State of Montana vests the power to enact legislation solely with the Legislature for the State of Montana, including legislation regarding the conduct Proposed Rule 8.4(g) seeks to regulate; and

WHEREAS, the Constitution of the State of Montana vests the Supreme Court with the authority to regulate the conduct of members of the bar, such power is not without limits and such power is limited to regulating conduct which adversely affects the attorney's fitness to practice law, or seriously interferes with the proper and efficient operation of the judicial system; and

WHEREAS, Proposed Rule 8.4(g) would unlawfully attempt to prohibit attorneys from engaging in conduct that neither adversely affects the attorney's fitness to practice law nor seriously interferes with the proper and efficient operation of the judicial system, therefore the scope of Proposed Rule 8.4(g) exceeds the Supreme Court's constitutional authority to regulate the conduct of attorneys; and

WHEREAS, Proposed Rule 8.4(g)'s expansive scope endeavors to control the speech of state legislators, who are licensed by the Supreme Court of the State of Montana to practice law, whether they are speaking on the Senate floor on legislative matters, speaking to constituents about their positions on legislation, or campaigning for office; and

WHEREAS, Proposed Rule 8.4(g)'s expansive scope endeavors to control the speech of legislative staff and legislative witnesses, who are licensed by the Supreme Court of the State of Montana to practice law, when they are working on legislative matters or testifying about legislation before Legislative Committees; and

WHEREAS, Proposed Rule 8.4(g)'s expansive scope endeavors to control the speech of Montanans, who are licensed by the Supreme Court of the State of Montana to practice law, when they speak or write publicly about legislation being considered by the Legislature; and

WHEREAS, Proposed Rule 8.4(g) infringes upon and violates the First Amendment Rights, including Freedom of Speech, Free Exercise of Religion and Freedom of Association, of Montanans who are licensed by the Supreme Court of the State of Montana to practice law, by prohibiting social conduct and speech which is protected by the First Amendment; and

WHEREAS, in order to fulfill their oath to protect and defend the Constitution of the State of Montana, the Legislators of the State of Montana must ascribe the genuine meaning to the words in the Constitution of the State of Montana, for otherwise it is a meaningless collage of alphabetic symbols and the word "conduct" clearly does not include the concept of "speech"; and

WHEREAS, for the reasons set forth in this resolution, adoption of Proposed Rule 8.4(g), by the Supreme Court of the State of Montana, exceeds the authority vested in it by the Constitution for the State of Montana, to regulate the conduct of the members of the bar; and

WHEREAS, for the reasons set forth in this resolution, adoption of Proposed Rule 8.4(g), by the Supreme Court for the State of Montana, violates the Constitution for the State of Montana Article III, section 1, by usurping the legislative power of the Legislature for the State of Montana; and

WHEREAS, Proposed Rule 8.4(g) will deprive the Legislature of Montana specifically and the State of Montana generally, with candid, thorough, and zealous legal representation and will do so, pursuant to Proposed Rule 8.4(g)'s plain meaning, by imposing a speech code on attorneys and chilling their speech by making it professional misconduct for an attorney to socially or professionally say or do anything, including providing legal advice, which could be construed by any person or activist group as discriminatory; and

WHEREAS, Rule 8.4(g) would directly threaten every attorney in the State of Montana, twenty-four hours per day, with the potential loss of their ability to pursue their chosen career, to provide for the needs of their family, and to pursue life, liberty, and the pursuit of happiness, because at any point in time an attorney could be forced to answer for vague complaints, even if the attorney has not participated in historically unprofessional practices, thereby threatening such attorney's reputation, time, resources, and license to practice law; and

WHEREAS, Proposed Rule 8.4(g) will deprive Montanans and associations of Montanans, with candid, thorough, and zealous legal representation, and Proposed Rule 8.4(g) will do so pursuant to its plain meaning by imposing a speech code on attorneys and chilling their speech by making it professional misconduct for an attorney to say or do anything, including providing legal advice, which could be construed by any person as discriminatory; and

WHEREAS, contrary to the ABA's world view, there is no need in a free civil society, such as exists in Montana, for the cultural shift forced by the proposed rule, and even if such a need did exist, the Supreme Court has no constitutional power to enact legislation of any sort, particularly legislation forcing cultural shift.

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE STATE OF MONTANA:

(1) That should the Supreme Court of the State of Montana adopt Proposed Rule 8.4(g), it would be an unconstitutional exercise power by that Court.

(2) That if Proposed Rule 8.4(g) is adopted by the Supreme Court of the State of Montana, such rule is unconstitutional and thereby null and void because:

(a) the Constitution of the State of Montana reserves the power of legislation to the Legislature of Montana;

(b) the scope of Proposed Rule 8.4(g) exceeds the Supreme Court's constitutional power to regulate the speech and conduct of attorneys; and

(3) That the Secretary of State send a copy of this resolution to the President of the United States, the United States Supreme Court, the Speaker of the United State House of Representatives, the Majority Leader of the United States Senate, to each member of the Montana Congressional Delegation, the Montana Supreme Court, the Governor of every State in the Union, the American Bar Association, and the Montana Bar Association.

- END -

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