Montana Main Street Blog

Wheat is Governor's Choice for High Court

It's no shocker that Governor Schweitzer picked former senator Mike Wheat to replace Justice John Warner on the Montana Supreme Court. He has a lot of legal experience, he has already run once for statewide office, he is a plaintiff's attorney that will have the backing of the Montana Trial Lawyer's Association, and he has money to self-fund his campaign. Without a doubt, being a former Democratic lawmaker helped him too.

Question: Will this appointment add fuel to the fire the Montana Republican Party started over the Governor and other Democratic executives picking Democratic legislators to fill positions? In this case Wheat is a former lawmaker, but the cronyism accusations may still fly. According to the dictionary, cronyism is "partiality to long-standing friends, especially by appointing them to positions of authority, regardless of their qualifications."

In this case, I don't think anyone can make a case that Wheat is unqualified - in fact, I believe all three selected by the judicial nomination committee had ample backgrounds.

Any thoughts on this? Discuss....

New Poll Out on Montanans' Views of Economy, Business and Elections

 

Poll Shows Pulse of Montana Voters

Respondents Give Answers on Economic, Political and Business Issues

The Power Base (P-Base) is an annual scientific poll of 600 Montana voters on a variety of business and political issues with a margin of error of 4.1%. The poll is commissioned by the Montana Chamber of Commerce and other business groups to determine what regular Montanans think about important economic issues facing our state. Here are some of the results:

Economic Development

The unemployment levels are a top concern for Montanans. 40% listed it as the top problem facing our state, and the next highest problem, health care, was a third of that level at 15%. Montanans want to get back to work, and they are looking for businesses, not government, to provide the jobs.

As in prior surveys, the P-base shows Montanans want to see more business growth, especially in high wage businesses like the natural resource industries. For example, 78% of Montana voters want the state to encourage more timber harvesting, 76% want more oil & gas development, 71% want more coal development and 70% want more mining. Almost two-thirds of Montanans say the state Land Board should go forward with the Otter Creek coal tracts leasing as well, which is an issue the Board will take up at its December 21^st meeting.

“The message from the survey is clear: Montanans want to see the state move towards long-term, sustainable growth by increasing natural resource development, improving our business climate, and creating more good-paying jobs,” said Jon Bennion, Government Relations Director for the Montana Chamber.”

Montanans are still pessimistic about the national economy. 53% of voters believe the U.S.’s economy is on the wrong track as opposed to 24% who think we are on the right track. Voters believe the state’s economy is better off with 41% saying we’re on the right track versus 34% saying wrong track. 

Health Care

Respondents in the poll expressed significant satisfaction levels with their own health care insurance. Almost three-quarters of those polled (74%) said they were satisfied, while only 15% said they were dissatisfied. Half of Montanans want Washington, D.C. to scrap the current health care proposals and draft new legislation that would address rising costs.

Concerns of Voters

The P-base is also a good opportunity to see what financial concerns are on the minds of voters. For the fourth straight year, health care costs continue to be a top concern at 24% and high taxes came in second at 18%. Additionally, addressing the unemployment situation is the top issue (18%) voters want addressed in the coming elections, and health care (17%) is a not-so-distant second concern of voters at 15%. 59% said government in general is getting too involved and spending too much money, while only 31% said government wasn’t doing enough on issues like education, health care and the environment. 

Elections

When it comes to candidate endorsements, voters respect candidates who get stamps of approval from business groups, like chambers of commerce, agriculture groups and more.

When asked whether a Montana Chamber endorsement of a candidate would influence their voter, 51% of voters said it would have a positive effect compared with only 16% who said it would have a negative effect (35% net postitive). Even more popular are agriculture groups with 68% positive to only 7% negative (61% net positive). Trial lawyers (-40% net negative), environmental groups (-18% net negative) and labor unions (-9% net negative) scored low in the poll.

When asked about the upcoming elections for the Montana state legislature, voters are more likely (46%) to want to replace their local legislator rather than re-elect them (34%). Additionally, Republicans have a slight edge going into the legislative elections. 32% prefer GOP candidates for the legislature while 25% prefer Democrats.

“Candidates for the legislature need to focus on the economy, jobs, and growing the business sector,” explained Bennion, “Voters are worried about how much the government is trying to do, so candidates need to offer solutions that center around responsible development of our natural resources, controlling government deficits, and free enterprise.”

Judicial Nomination Committee Selects Three Candidates

Just got word that the Montana Judicial Nomination Committee released three names of candidates to replace retiring Justice John Warner. Governor Schweitzer can either pick from the list or reject all three. At least eleven lawyers submitted their names for consideration. Here are the three finalists:

1. Carlo Canty - a long-time assistant attorney general under Mike McGrath

2. John Warren - a Dillon lawyer in private practice with 47 years of experience

3. Mike Wheat - a plaintiff's attorney from Bozeman who has also served as a Democratic state senator and ran for attorney general in 2008.

Any guesses on who Governor Schweitzer will pick? The answer to that question rests on who can win a statewide election just 10 months after being appointed. That may require someone who has a little money they can put into a campaign, someone who would have the backing of the Montana Trial Lawyers Association (which is usually the top PAC spender in judicial races, and someone who has run a campaign before. Wheat meets all of those criteria.

How the State Government Benefits from the Satterlee decision

State fiscal analysts and lawmakers have been waiting for the decision in Satterlee to come out because the state government's general fund would be on the hook for some of the tab. Since the decision would have required payouts to people covered under the Old Fund, the state would have had to pay up to $130 million to pay off the liability. That can erase a budget surplus in Montana pretty quick.

I bet most state lawmakers are happy they don't have to deal with that price tag. Small businesses are celebrating as well.

BREAKING NEWS: Montana Supreme Court Affirms Satterlee

Just received word that the Montana Supreme Court affirmed the Workers' Compensation Court in the Satterlee work comp case. This is the case where the plaintiffs were seeking to overturn a statute that prohibits the collection of work comp benefits after a worker is retired. This means that the statute is upheld, and Montana small businesses will not have to pay hundreds of millions of dollars in new costs.

It was a 5-2 decision, with Justice Leaphart writing the majority opinion. Chief Justice McGrath, Justice Rice, Justice Cotter and Justice Warner signed on to his opinion. Justice Morris, joined by Justice Nelson, wrote the dissent which relied heavily on a Utah Supreme Court decision. Interesting.

The Montana Chamber wrote an amicus brief in this case laying out the huge cost Montana businesses would incur if the statute was overturned. This is a good day for Montana small businesses, which are already paying the 2nd highest premiums in the country.

To read the full opinion, click here: Download Satterlee Decision

Warner's Retirement from the Montana Supreme Court

Yesterday an experienced and respected state supreme court justice, John Warner, announced his retirement from the Court. His resignation is effective December 31, 2009.

His resignation opens up a spot on the Court - a spot that requires the Governor's appointee to run in the next general election in 2010. Although many may think that spots on the Court are something that many in the legal community would desire, this is actually not true.

For starters, you must find someone who is willing to run a statewide campaign for office. He/she will pretty much have to start running as soon as they get the job because the election will be just 10 months away. And this only fills out the rest of Warner's term. Four years later, the justice will have to run again if they want a full eight-year term (the newspapers reported this as 2012, but Warner's term was not up until 2014).

If the appointee doesn't live in the Helena area, they will likely have to move here. A few justices have commuted from areas like Great Falls, but most end up moving inside the Helena Beltway. That may not be a desirable step if the appointee is happy where he/she lives.

If the Governor looks to someone from the attorney pool, as opposed to the judicial pool, he may have to convince that person to take a pay cut. Justices in Montana make over $100,000, which is a salary most Montanans would love to see. However, many seasoned attorneys who have a lot of experience are making more than double that figure. So the appointee may have to take a cut in income.

Don't get me wrong - there will be no shortage of people who will want the spot. But it may be fewer than you would expect.

Montana Supreme Court Hears Satterlee Case

This morning I attended the Montana Supreme Court oral arguments for a very important case called Satterlee v. Lumberman's Mutual. In Satterlee, the plaintiffs have asked the Court to throw out a statute that prohibits a person from receiving permanent total disability payments after a worker is eligible for retirement benefits, such as Social Security (MCA § 39-71-710).

Two years ago, the Workers’ Compensation Court ruled against the plaintiffs and upheld the law as passed by the legislature. If the case is decided in favor of the plaintiffs/appellants, the Old Fund, which was established to compensate injuries prior to 1990, could take a hit of up to $130 million, and the new State Fund could pay out $163 million, including retroactive payments to claimants whose benefits stopped when they turned 65.  These new costs would lead to increased premium costs for companies that currently pay into the system.

The Montana Chamber filed an amicus brief in this important case to stress how a ruling for Satterlee is not a ruling against insurers, it's a ruling against the people that pay for work comp premiums. We already have the 2nd highest work comp premiums in the country, and a bad decision in this case would undoubtedly send us straight up to #1. It doesn't make much sense to allow people to collect work comp when they are retired from the workforce. To read the amicus brief, click here.

The presentations by both parties were well prepared, but nothing earth-shattering. The arguments from both sides have been fairly well spelled out in the briefs. The plaintiffs main argument is that people who are under the age of 65 can collect permanent total disability (PTD) work comp benefits if they are totally disabled, but someone over 65 cannot. Therefore, they argue, it violates Montana's equal protection laws because similarly situated people are being treated differently solely because of age. The defense's rebuttal is that the work comp system was never intended to be a pension program, the cost to the system would be detrimental, and it would have severely negative economic consequences if decided in the plaintiff's favor.

The most interesting part of oral argument is the fact that individual justices can interrupt the presenting party to ask questions. In this case, all seven justices had at least one question. Justice Nelson had the most at five. Although it's not that scientific, it's often possible to gage an individual justice's initial take on a case just by the kind of question he or she asks. For example, Justice Morris asked a somewhat confrontational and pointed question of the defense/appellee side at the start of his presentation. I can't say for sure, but it seemed like Justice Morris was more sympathetic to the plaintiff's side.

Many of the other questions seemed like genuine attempts to sort through a legal theory or facts of the case, so I can't really say the case will go one way or another. You're better off renting a crystal ball or something. Additionally, I can't really say when we can expect a decision from the Court either. Could be two months, could be twelve months. It's now totally in their hands, so we will wait patiently and keep you updated.

Great Falls Tribune Editorial on Work Comp Reform

As I've said numerous time over the last few months, common sense work comp reform is one of the Montana Chamber's top priorities. Included in our list of pro-active legislation is SB 371, which clarifies the law on workplace injuries and non-workplace injuries. I just happened to stumble on this editorial done by the Great Falls Tribune last week. We are glad to see others recognize the need to inject some reasonableness back into the system that is so costly for employers.

Appeal Reforms Needed for Energy Projects

Rarely do we reprint an article verbatum on the blog, but this latest editorial by Llew Jones (District 27 - Conrad) was an excellent one. It demonstrates the need for appeals reform in order to get more energy projects from the drawing board to on-the-ground operations:

"It has been inferred that there is no need for appeals and litigation reform, thus my HB483, HB529, and HB566 are not necessary.

Rep. Jones

Consider the following:

According to the Department of Environmental Quality (DEQ), there have been six major energy projects over the last eight years or so. All six were appealed, some multiple times. Notice that the level of "gaming" of permits, i.e. the never ending nature of appeals on the last three:

Roundup Power. Three appeals to Board and one court challenge. The Board held for Department in one, which was appealed to district court. District court held for Department. Petitioners appealed to Supreme Court. Supreme Court held in part for petitioners and in part for Department. Board held for petitioners in another case. Third appeal to Board dismissed as moot. In court challenge district court held for Department. Petitioners appealed to Supreme Court. Supreme Court dismissed as moot.

Thompson River Co-Gen (proposed Thompson Falls plant), Appeal to Board. Board held in part for Department, in part for petitioners. Ruling in favor of Department appealed to district court. District court upheld Department. Petitioners have appealed to Supreme Court.

Southern Montana Electric (proposed Great Falls plant). Appeal to Board. Ruling in part for petitioners and in part for Department. Ruling for Department appealed to district court. Ruling for petitioners resulted in Department doing a new Best Available Control Technology (BACT) determination. New BACT determination appealed to Board.

I also would suggest that the reader visit the MEIC website and read about the above projects. Roundup was subject to five appeals alone: http://www.meic.org/energy/power_plants/roundup-power-plant-1.

I would also ask that you consider the celebratory tone taken by these folks. I find it disingenuous to celebrate the destruction of these projects without consideration for the job loss, school funding loss, economic impact and higher cost electricity that were caused.

The legislation I am carrying is not about limiting the right of public input. I am a huge supporter of the extensive Montana Environmental Protection Act (MEPA) process that allows the public input which impacts the state and developer's decision making process, although I do grump about how long it takes at times.

What my bills do is create a more predictable and timely framework after the extensive MEPA and permit process is finished. For investors and developers to consider investing millions, even billions of dollars in Montana there must be a predictable framework that allows legit appeals and litigation while still discouraging delay and deleterious gaming.

On a major project, the whole EIS and permit process seems to take around two years. It would seem reasonable that the subsequent appeals and litigation should be wrapped up one way or another within two years. That is certainly not true today. Maybe it can be tomorrow.

This legislation is not about being partisan. I have worked with the Executive branch and across the aisle with some of the more moderate folks. This legislation is about moving Montana forward."

Victory on SB 285

SB 285 (Senator Jent), which would have encouraged more attorneys to enter the work comp process, died on a 26-24 vote on 3rd reading. It had narrowly passed second reading on Monday with a 25-24 vote. Due to the emails of many Montana Chamber members, we helped change a few votes to kill the bill for this session. The bill would have added more cost to a system where employers are already paying the 2nd highest premiums in the country.