Gehring v. All Members of 1993 Legislature

NO. 94-166
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

JACK B. GEHRING,
Plaintiff and Appellant,
v.
ALL MEMBERS OF THE STATE OF MONTANA
1993 LEGISLATURE, ALL MEMBERS OF THE
MONTANA SUPREME COURT, Chief Justice
J. A. Turnage, John C. Harrison, William
E. Hunt, Sr., Fred Weber, R. C. McDonough,
Karla Gray, Terry N. Trieweiler; GOVERNOR
MARC RACICOT and ATTORNEY GENERAL
JOSEPH P. MAZUREK,
Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Jack B. Gehring, Pro Se, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana
Mike McGrath, County Attorney, Helena, Montana

Submitted on Briefs: November 16, 1994
Decided: February 6, 1995
Filed:
Honorable James E. Purcell, District Judge, delivered the Opinion
of the Court.

Jack B. Gehring (Gehring) appeals the decision of the First

Judicial District Court, Lewis and Clark County, granting defen-

dant's motion to dismiss for failure to state a claim upon which

relief could be granted. We affirm.

We find the following issues to be dispositive:

1. Did the District Court err in determining that the members

of Montana's Fifty-third Legislature did not violate the 1972

Montana Constitution by fixing their own compensation?

2. Did the District Court err in determining that Gehring's

right to peaceably assemble and petition the government for redress

was not violated?

On December 16, 1993, Gehring filed a complaint in the First

Judicial District Court, Lewis and Clark County, Montana. He

asserted two substantive claims. First, he claims that the 1993

Montana Legislature violated Article V, section 5 of the 1972

Montana Constitution by fixing its own compensation.

Second, Gehring alleges he delivered "Notice and Petitions" to

Montana's Governor, House of Representatives, Senate, Clerk of the

Supreme Court and Attorney General. Gehring claims that he did not

receive any responses from his Notice and Petitions. He therefore

argues that all the above named defendants violated his right to

peaceably assemble and petition for redress of governmental action

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as guaranteed by the First Amendment of the United States Constitu-
tion and Article II, section 6 of the 1972 Montana Constitution.

On March 10, 1994, the District Court dismissed Gehring's

complaint, finding that he had failed to state a claim upon which

relief could be granted. On March 28, 1994, Gehring filed a notice

of appeal with the Clerk of the Montana Supreme Court. Accompany-

ing his notice of appeal was a request that the sitting Justices of

the Montana Supreme Court be disqualified, as they were parties to

the subject litigation. On August 25, 1994, Chief Justice Turnage,

on behalf of the Montana Supreme Court, issued an order requesting

Gehring to show cause why his case should not be dismissed for

failure to file an appellate brief. On August 31, 1994, Gehring

responded that the rules of appellate procedure were unduly

complicated and conflicted with the United States and Montana
Constitutions and asked that his appeal go forward on the merits of

his district court complaint. Gehring also reasserted his request

that the sitting Justices of the Montana Supreme Court disqualify

themselves.
On September 14, 1994, the Montana Supreme Court issued an

order recusing itself and appointing five district court judges:

James E. Purcell, Ted L. Mizner, Roy C. Rodeghiero, John W. Larson

and Ted 0. Lympus, to hear this appeal. On September 27, 1994,

Gehring requested that two additional judges be appointed to hear

this case. On October 6, 1994, we denied Gehring's request for two

additional justices, concluding that this matter was properly

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classified for decision by a five member panel pursuant to the

Internal Operating Rules of the Montana Supreme Court.

We also concluded that Gehring's original petition was

insufficient and did not constitute an Appellant's Brief as

required by the Montana Rules of Appellate Procedure. Gehring

subsequently filed an Appellant's Brief on October 19, 1994.

Issue 1

Did the District Court err in determining that the 1333

Montana Legislature did not violate the 1972 Montana Constitution

by fixing its own compensation?

Gehring claims that the 1993 legislature established its own

compensation in violation of the Montana Constitution. Article V,

section 5 of the Montana Constitution states:
Each member of the legislature shall receive compensation
for his services and allowances provided by law. No
legislature may fix its own compensation.

This section provides that while legislators are to be compensated

for their services, no given legislature can establish the amount

of its own compensation.

Section 5-Z-301, MCA, establishes the legislature's compensa-

tion and expenses. This section reads:

[Llegislators are entitled to a salary commensurate to
that of the daily rate of an entry grade 8 classified
state employee in effect when the regular session of the
legislature in which they serve is convened under S-Z-103
for those days during which the legislature is in
s e s s i o n .
.

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 Legislators are entitled to $50 a day, 7 days a week,
during a legislative session, as reimbursement for
expenses incurred in attending a session. Expense
payments shall stop when the legislature recesses for
more that 3 days and shall resume when the legislature
reconvenes.

Section 5-2-301, MCA (1993). In 1991 the Fifty-second Legislature

had amended this section, changing the pay scale from grade 8, step

two to entry level grade 8. These changes were in full effect when

the Fifty-third Legislature began its session

Each legislative assembly is a distinct and separate entity.

Construing a similar clause restricting the power of the legisla-

ture to fix its own compensation found in the 1889 Montana

Constitution, this Court stated:

We think it is evident that the Constitution fixed the
compensation of the members of the first legislative
assembly of the State, and conferred upon that body the
power to enact appropriate laws for the payment of its
successors. Such legislation can be amended at any time,
subject to the restrictions that no legislative assembly
can pass a law which defines its own compensation.

State ex rel. Harrington v. Kenney (1891), 10 Mont. 410, 412, 25 P.

1022, 1023.

The compensation and expense reimbursement for the Fifty-third

Legislature was established by the Fifty-second Legislature. The

Fifty-third Legislature did pass laws appropriating money necessary

to pay for the cost of the legislative sessions. However, these

laws merely made the funds available. The amount of compensation

was already fixed. We conclude that the District Court did not err

in determining that the Fifty-third Legislature did not fix its own

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compensation in violation of Article V, section 5 of the Montana
Constitution.

Issue 2

Did the District Court err in determining that Gehring's right

to peaceably assemble and petition the government for redress was

not violated?

Gehring alleges he sent "Notice and Petitions" to various

members of the state government, all of which went unanswered. He

claims that since his petitions allegedly fell on deaf ears, his

right to petition the government for redress has been violated.
Article II, section 6 of the Montana Constitution and the

First Amendment of the United States Constitution both ensure

citizens the right to petition the government for redress of

grievances. While an individual has a right to petition the

government, their is no corresponding right that his petition will

be acted upon. In Canfora v. Olds (6th Cir. 19771, 562 F.2d 363,

the United States Sixth Circuit Court of Appeals stated, "neither

the First Amendment nor elsewhere in the Constitution is there a

provision guaranteeing that all petitions for the redress of

grievances will meet with success." Canfora, 562 F.2d at 364. The

First Amendment guarantees access to and free participation in the

political process, not political success. Republican Party of N.C.

v. Martin (4th Cir. 1992), 980 F.2d 943, 960.

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 We also find the substance of Gehring's petitions to be
without merit. Gehring demanded that the respondents "cease and

desist any transaction concerning money . . St He claims the

use of paper money is void under Article I, section 10, clause 1 of

the United States Constitution which states "no State shall

make any Thing but gold and silver Coin a Tender in Payment of

Debts .)I This provision, by its terms, is applicable to the

states. However, this provision is not applicable to the federal

government. Juilliard v. Greenman (1884), 110 U.S. 421, 447, 4

S.Ct. 122, 129, 28 L.Ed. 204, 211. The legality of paper money has

consistently been upheld. Guaranty Trust Co. v. Henwood (19391,

307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266; United States v. Wangrud

(9th Cir.), 533 F.2d 495, cert. denied, (1976), 429 U.S. 853, 97

S.Ct. 64, 50 L.Ed.Zd 79.

We conclude that the District Court did not err in determining

that Gehring's right to peaceably assemble and petition the

government for redress was not violated. We affirm the decision of

the District Court.

District Judge
We concur:

H n rable John W. Larson,
i trict Judge

District Judge