Report – MSSA SSN Lawsuit

We finally received a decision from the District Court in our lawsuit against the state asserting that the requirement to provide a Social Security number to be able to legally hunt or fish in Montana violates the right to privacy that we have reserved to ourselves from government interference in the Montana constitution. That reserved right says at Article II, Section 10:

“Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

The state argued that it is required by federal law to collect SSNs in order to be eligible to receive federal funds for child support enforcement.

Our side argued that abridging any constitutional right, especially this one where it is affirmatively stated, requires a level of need called a “compelling state interest,” a very high bar to intrusion. And, we said, the Montana Supreme Court has ruled that money does not constitute a compelling state interest, including federal money.

The state argued that the suffering of children absent the federal funds to enforce child support would rise to the level of a compelling state interest.

We responded that the Legislature could replace that federal money with in-state funds to avoid abrogation of a fundamental and reserved right of the people.

Notwithstanding our best arguments, the judge found in favor of the state, that the law allowing FWP to demand an SSN before selling a fishing or hunting license is not trumped by the right to privacy. It is unknown whether the judge thinks the right to privacy is meaningless or whether he thinks the need for federal money is unarguable. However, in net the judge ruled that federal money is more important that the right we the people have reserved to ourselves.

We might ask, what other rights are for sale? How much federal money will the state get for our freedom of speech, the freedom of the press, our right to trial by jury, or our right to bear arms? And, wouldn’t it be more efficient to just auction the entire Declaration of Rights in the Montana Constitution for whatever the federal government will bid?

As you may suppose, I was disappointed in the District Court decision. However, we’ve intended all along to take this to the Montana Supreme Court, in order to get a precedent-setting decision. Our attorneys tell me that we are better positioned to get to and argue before the Supreme Court as losers in the District Court than as winners. I trust their analysis of this.

Our attorneys (Quentin Rhoades of Missoula and Lee Bruner of Butte – thanks loads guys) have been conducting this litigation for us pro bono, including covering most (but not all – we’ve paid some) of the costs incurred. They tell me that their firms are getting nervous about the unpaid costs involved, and that while they are willing to continue to commit their time pro bono, MSSA will have to come up with funds to cover the costs associated with the appeal to the Montana Supreme Court. Once I hear what those costs are estimated to be, I will be getting back to you with a pitch for donations for the appeal effort.

BTW, we do have a trump card to play in the appeal, but I can’t tell you what it is yet. Stay tuned …

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com