Montana Supreme Court rules to send Barry Beach back to prison

In a 4-3 decision, the Montana Supreme Court today reversed a lower court’s ruling granting Barry Beach, the man convicted in 1984 of a murder he says he didn’t commit, a new trial.

The ruling also tossed out Beach’s post-conviction petition, meaning Beach, who has been free since Dec. 8, 2011, will likely head back to Montana State Prison in Deer Lodge to finish out his 100-year prison sentence.

Beach was convicted in 1984 of the 1979 murder of Poplar teenager Kimberly Nees and sentenced to 100 years in prison.

The sole piece of evidence connecting Beach to the crime was his own confession, which he gave to Louisiana investigators years after the murder. Beach has since maintained that his confession was coerced by aggressive interrogation techniques and that he is innocent of the crime. His lawyers have tried to make the case that a gang of jealous teenage girls were responsible for Nees’ death.

Beach asked the court to determine whether new evidence in the case — which came to light after high-profile newspaper and television accounts of his story made national headlines — merited a new trial.

After an initial District Court ruling denying Beach’s petition for post-conviction relief, the Montana Supreme Court ordered the lower court to take a second look at the case and determine whether new evidence merited a new trial. After a three-day evidentiary hearing in Lewistown in August 2011, Fergus County District Judge E. Wayne Phillips ruled in Beach’s favor, granting him a new trial and freeing him on bail.

Phillips found that the new evidence was not available at Beach’s original trial and was compelling and believable.

Then-Attorney General Steve Bullock, now governor, appealed that decision and asked the Supreme Court to overrule Phillips.

The high court sided with the state in a 93-page ruling written by Justice Jim Rice.

Justice Laurie McKinnon, who was elected to the bench in November 2012 and was just appointed to the panel reviewing Beach’s case in February, wrote a concurring opinion stating Phillips erred when he “deliberately” listened to the new evidence presented at the August 2011 hearing while “failing to closely consider” the evidence presented at Beach’s original trial, namely, his confession.

“After a review of all the evidence, we conclude that Beach did not provide reliable evidence of his actual innocence that displaced the trial evidence and thus his conviction,” McKinnon wrote in the concurring opinion.

McKinnon and Rice were joined by Justice Beth Baker and District Judge Richard Simonton in their ruling.

Justices Brian Morris, Michael Wheat and Patricia Cotter dissented.

Peter Camiel, Beach’s attorney in the case, said the high court’s ruling is surprising because it not only overturns the lower court’s ruling granting Beach a new trial, but throws out Beach’s post-conviction petition entirely.

“I am very very surprised they went as far as they did,” Camiel said. “As a general rule, a trial judges’ conclusions about the credibility and testimony of witnesses is never second guessed by the appellate court. That's what this court has done.”

Camiel said Beach is resigned to the fact that he will likely return to custody while as the legal saga unfolds.

“Barry is taking this latest news in stride,” Camiel said. “He is extremely disappointed but he is not panicking. He takes this stuff better than we do. He understands what's going to happen and he doesn't have any false hopes. He recognizes that's that he’s likely going back to jail.”

Jim McClosky, executive director of New Jersey-based Centurion Ministries, the group which spent more than a decade working to prove Beach’s innocence, said he was stunned by the high court’s latest decision.

“I’m just reeling,” McClosky said late Tuesday. “It’s just a punch in the gut. I can’t believe this is the final decision from the court. This is something we couldn’t imagine was going to happen. We’re all stunned and taken aback by it.”

Beach was reached Tuesday evening at work in Billings and had not yet been taken into custody.

“I’ve only found out five minutes ago,” Beach told The Associated Press. “Honestly right now I don’t even know what it means.”

Attorney General Tim Fox was not available for comment. Fox, who was elected in November, has made no public statements on the Beach case.

His spokesman said the Attorney General’s Office was reviewing the 93-page order and would release more details Wednesday.

“It’s a lengthy ruling. We’re in the process of reviewing it and determining what it means for the case, and for Mr. Beach, and we’ll have more to say tomorrow,” Fox spokesman John Barnes said.

Attorney General intervenes in “false claims” case against former COPP Dave Gallik

Attorney General Tim Fox’s office alerted a Missoula court Thursday that the state will intervene in a lawsuit against former Commissioner of Political Practices Dave Gallik.

Gallik resigned as the state’s top political and ethics watchdog in January 2012 after the Great Falls Tribune reported allegations made by Gallik's former staff members that Gallik, an attorney, was conducting private law practice work out of his state office.

Two months later the Bozeman-based Montana Policy Institute sued Gallik under a state statue called the “False Claims Act,” a law Gallik carried when he served as a Democrat in the House of Representatives in 2005.

Democratic Gov. Steve Bullock, when he was still serving at attorney general, appointed Great Falls attorney Ward "Mick" Taleff to represent state in the case. Last November, Taleff argued on behalf of the state  that the case should be dismissed because the Montana Policy Institute, the plaintiff in the case, lacked standing to bring the lawsuit.

Missoula District Judge John Larson rejected the state’s claim and on April 12 ruled the  lawsuit against Gallik could proceed.

Thursday was the deadline for the current attorney general, Republican Tim Fox, to either intervene in the case or step aside and let MPI continue the litigation against Gallik.

John Barnes, communications director for the Attorney General’s Office, said the state will intervene. The state has 20 days to serve the complaint against Gallik.

“We feel that the claims that are being made against Gallik are serious,” Barnes said. “Given the nature of all of this – this has implications for state employees and state government in general – we feel its best handled by attorneys representing the State of Montana and best handled by the Department of Justice.”

Gallik said it is “odd” that the new attorney general decided to intervene in the case.

“That seems like a reversal of position,” Gallik said.

Gallik maintained  he did nothing wrong while serving as the commissioner of political practices.

“I told everybody that I am going to continue my law practice. I took the job because of the fact that I could continue my law practice. Nothing has changed. The job was a salaried position, I did the job, nothing has changed,” Gallik said.

A committee of top legislative leaders is meeting today to choose candidates to fill the commissioner position. Gallik’s successor, Jim Murry, ended his term last month and the position is now vacant. Senate President Jeff Essmann, House Speaker Mark Blasdel, Senate Minority Leader Jon Sesso, and House Minority Leader Chuck Hunter are interviewing five candidates today and will soon make recommendations to Governor Steve Bullock.

Consider the Source: ALEC scientist says ‘enriching’ the atmosphere with CO2 is good for tomatoes

Editor’s note: Beginning today I’m launching a new feature on the Lowdown called “Consider the Source.” I’ll examine an email or press release or memo and break it down so you know who is behind efforts to influence the press and the public.

In this week’s edition of “Consider the Source” we have an email bulletin from the Arizona-based, ExxonMobil-funded “thinktank,” the Center for the Study of Carbon Dioxide and Global Change,  discussing one of the many “benefits” of excessive carbon dioxide in our atmosphere.

Wouldn’t you know it? There’s a positive side to climate change, and it’s increased resistance to the tomato yellow leaf curl virus, a disease so devastating to the world’s tomato crop that Wikipedia doesn’t even have a page about it.

Here’s the top of the email:

The vast majority of the world’s top climate scientists and economists agree that elevations in greenhouse gas levels the atmosphere are leading to a warming planet, and thus changing climate. The Intergovernmental Panel on Climate Change, of which University of Montana climate scientist  and Nobel Laureate Dr. Steve Running is a member, not only agree that the CO2 is warming the planet, but they think it is likely that human-caused increases in CO2 emissions are contributing to the problem.

I suspect Dr. Running, the author of the “Five Stages of Climate Grief,” would categorize this email from global warming contrarian Craid Idso under Stage 3, bargaining:

When they reach this stage many people (such as self-righteous radio talk show hosts) who used to be very public deniers of global warming begin making statements that warming won"t be all that bad, it might make a place like Montana "more comfortable."

Craig Idso is a member of a prominent family of global warming skeptics. In 2009 Mother Jones dubbed the Idso claim “the von Trapp family of climate change denial.”

Idso’s father, Sherwood Idso, in 1980 published a paper in Science concluding that doubling the planet’s CO2 concentration wouldn’t have a major impact on the global temperature, and thus “we should not be too quick to limit our options in the selection of future energy alternatives.”

Sherwood Idso and his colleagues at Arizona State University's Office of Climatology, which was headed by leading climate change skeptic Robert Balling, received more than $1 million in research funding from oil, coal, and utility interests.

In 1990, Sherwood Idso coauthored a paper with Balling funded by a coal mining company entitled "Greenhouse Cooling."

Craig Idso launched the Center for the Study of Carbon Dioxide and Global Change in 1998. He also worked as the director for environmental science at Peabody Energy, the world’s largest coal company.

Craig Idso has a B.S. in geography from Arizona State University, an M.S. in agronomy from the University of Nebraska – Lincoln, and a Ph.D. in geography from Arizona State University.

Not sure how that qualifies him to be a climate expert, but nonetheless he was a featured speaker at the 2011 American Legislative Exchange Council annual meeting for a workshop titled "Warming Up to Climate Change: The Many Benefits of Increased Atmospheric CO2."

The title was later changed to "Benefit Analysis of CO2."

ALEC is the industry-funded “bill mill” which pumps out pro-industry model legislation which legislators take back to their home states and try to pass into law.

According to the Center for Media and Democracy’s PR Watch, almost 98% of ALEC's funding comes from corporations such as ExxonMobil, corporate foundations such as the Charles G. Koch Charitable Foundation, or trade associations like the pharmaceutical industry's PhRMA and sources other than "legislative dues."

You can find a list of Montana legislators with ties to ALEC here.

Idso is also deeply involved with the Non-Governmental International Panel on Climate Change. The NIPCC, could be considered the anti-IGCC.

On their website you can:

• “Discover the neglected pertinent science”
• “Learn the benefits of atmospheric CO2”
• and “Marvel at the resiliency of the biosphere

The NIPCC, which is sponsored by ALEC member and global warming denying Heartland Institute, is lead by Austrian-born American physicist Dr. Fred Singer. Singer, according to Scientific American, is best known for his denial of the dangers of secondhand smoke, and is tied to the Western Fuels Association, a “a cooperative enterprise operating on a not-for profit basis to provide coal and other services for the generation of electricity by consumer owned utilities.”

Western Fuels Association is also, you guessed it, a corporate sponsor of ALEC.

So before you go off thinking global warming is a good thing because it will make your gardening easier, you should consider the source and who is funding the research.

The world’s largest and most powerful fossil fuel energy companies want you to know their activities are making it easier for you to grow your tomatoes.

You can view the entire e-mail here.

Eleven applicants vie for Commissioner of Political Practices post

Eight men and three women have submitted applications to become the next commissioner of political practices.
Current commissioner Jim Murry’s last day was Wednesday.
Former Democratic Gov. Brian Schweitzer appointed Murry to the post last year after the previous commissioner, Dave Gallik, resigned amid allegations that he used his office for private law practice work.
Murry did not seek confirmation to the post, and so the search for a new commissioner began this legislative session. A job posting went out on April 16.
The commissioner of political practices is responsible for investigating alleged violations of the election laws and, with the county attorneys, for enforcing election and campaign practice and finance laws.
According to the job posting the qualifications for the job include being a citizen of the United States and a resident of Montana and, on the date of appointment, a registered voter in Montana. 
A selection committee composed of the Republican House Speaker Mark Blasdel, Republican Senate President Jeff Essmann, Democratic House Minority Leader Chuck Hunter, and Democratic Senate Minority Leader Jon Sesso, will select a pool of candidates to interview at a May 3 meeting from those who applied. The selection committee will pick at least two and not more than five finalists to forward to Gov. Steve Bullock.
Bullock must appoint a successor within 30 days of the vacancy, but he doesn’t have to appoint someone from the list of lawmakers submit to him.
The 11 candidates who have applied for the post include:

• James Ashmore, a business analyst for the state’s Information Systems Security Office at the Department of Administration in Helena.
• Jeffrey Barber, government relations director for the Nature Conservancy’s Montana chapter in Helena.
• Debra Ann Brown, of Winston, the current treasurer for the Montana Republican Party.
• Ellen Bush, of Helena, the former executive director of Court Appointed Special Advocates who most recently served as Secretary for the House Business and Labor Committee in the Legislature.
• Russell Hart, a third-year law student at the University of Montana School of Law in Missoula set to graduate in May. Hart works as a hearings officer for the Missoula Housing Authority.
• Robert Hoffman, of Butte. Hoffman served as an investigator for the commissioner of political practices from 2007-2010 under former commissioner Dennis Unsworth.
• Joel Krautter, second-year law student at the University of Montana School of Law in Missoula.
• Gary Moseman, the former managing editor of the Great Falls Tribune. Moseman retired from the Tribune last year after 30 years at the newspaper.
• Jonathan Motl, a Helena attorney with the firm Morrison, Motl and Sherwood. Motl has represented ballot issue proponents and opponents over the years and has worked on campaign finance laws.
• Daniel Ritter, a real estate agent with Trails West Real Estate in Lakeside. Ritter worked as an amendment coordinator and Sergeant at arms for the Montana Senate.
• Colleen Urquhart-Fillner, a Helena freelance writer and former policy advisor to former Republican Gov. marc Racicot.

The appointment is for the completion of the 6-year term ending December 31, 2016, and the candidate will be ineligible for reappointment. The position pays $57,699 annually.
The selection committee’s May 3 meeting in Helena is open to the public. 

Bullock to let anti-abortion bill become law to block similar measure before it hits the ballot

Democratic Gov. Steve Bullock plans to let a bill become law that would require underage teenage girls to get notarized parental consent before they could get an abortion.

Pro-choice advocates are cheering the move because they say it will allow them to immediately challenge the measure in court long before an identical measure get to the ballot in 2014.

The bill, House Bill 391, by Rep. Jerry Bennett, passed the Senate on a 30-20 vote and was transmitted Bullock’s office on April 15. By law the governor has 10 days after a bill gets to his desk to sign it into law, veto it, or let it become law without his signature.  The deadline for HB391 is today.

Anti-abortion Republicans anticipated that Bullock, a pro-choice Democrat, would veto  the measure so they also passed HB521, a legislative referendum virtually identical to HB391 that would put the question to voters in November.

By allowing HB391 to become law, supporters of abortion rights say they can immediately challenge the law in court without waiting 14 months for voters to decide.

Opponents of the parental consent bill say it would put pregnant teen girls who come from dangerous or abusive homes at risk.

“Today the Governor did what is necessary so that the courts may swiftly protect the health and safety of all Montana’s families. We commend the governor for doing what is right for Montana families,” Kelsen Young, executive director for the Montana Coalition Against Domestic and Sexual Violence, in a statement.

Stacey Anderson, director of public affairs for Planned Parenthood of Montana said the group is committed to supporting parents as the primary “sexuality educators” of children, but she said no state law should force a teen to talk to parents about private matters.

“Laws like this can’t force teens to talk to their parents, and the sad truth is some teens live in dangerous homes and can’t go to their parents,” Anderson said.

Opponents of parental consent for abortions said the bill and the referendum are unconstitutional and will likely be struck down by the courts. They point to a similar law the courts struck down in 1995 because it violates the Montana Constitution’s strong privacy rights.

Niki Zupanic, Public Policy Director for the ACLU of Montana, said Bullock letting the bill become law was the right thing to do.

“We fought this bill in the Legislature and now we will fight it in the courts,” Zupanic said.  “The Governor has a responsibility to protect the health and safety of all Montana’s families, and that’s exactly what he did today.”

Last-minute Senate GOP maneuvering threatening to derail budget deal

Everyone wants to know what’s going on, but even we the press know very little about the last-minute tactic by the Senate GOP to try to force Gov. Steve Bullock back to the negotiating table.

What we know is this:

Last night legislative leaders and the Governor’s office worked late into the night to hammer out a deal that would satisfy the Republican leadership in both houses.

The headlines this morning proclaimed that Bullock and lawmakers hashed out the plan.

The House convened, finished up their third reading business, said goodbye and adjourned Sine Die.

The Senate then went into session, worked through the first board of business, then came back and voted on a motion to suspend the rules so that the Senate could accept Senate Bill 410. They needed a 2/3 majority because the measure missed transmittal deadline.

The amendments in SB410 are the deal. The measure contains an additional $13.5 million in spending on top of the $10 billion two-year budget bill. The $13.5 million includes spending for corrections, DPHHS,  and commerce.

The Senate voted 27-23 to suspend the rules, but that doesn’t get them the 2/3 majority needed. So the deal, essentially, was not accepted by the Senate.

After that happened, the Senate recessed and Republican Senate Majority Leader Art Wittich, Sen. Jason Priest, R-Red Lodge, and Sen. Jon Sesso, D-Butte (and lawmakers, staffers, political hacks, and press) went into the Senate cloak room and had an impromptu debate about the negotiations.

Sesso told Wittich and Priest that the deal was a good faith deal, approved by the House, and that by voting against adopting SB410 they were essentially breaking the deal.

Priest and Wittich told Sesso that their “interests were not represented at the table.” However, Priest was intimately involved in the writing the SB410 amendments last night. Everyone I talk to said Priest was in House Speaker Mark Basdel’s office working closely on the negotiations.

Sen. Dave Lewis, R-Helena, claimed that Senate President Jeff Essmann was not in the negotiations and therefore the Senate Leadership’s interests were “not represented.” But Sen. Rick Ripley, Chairman of the Senate Finance and Claims Committee disputed that, as did several other Republican lawmakers from the House and Senate who were in the Senate chambers.

Whether Essmann was involved in the negotiations or not is really not relevant, because its clear to everyone at the Capitol that Jason Priest is the Senate GOP point man on the Ledership’s negotiating team. Priest even told reporters that he’s in charge of any negotiations.

Here’s what’s happening as I write this:

The Senate still sits in recess.

Essmann is sitting in a chair at the front of the Senate. He doesn’t appear to be active in this process.

Wittich is posted outside House Speaker Blasdel’s office with a Senate leadership staffer and a GOP operative.

Blasdel, I’m told, has left the building.

Sesso in nowhere to be found.

Bullock is in a cabinet meeting, and the press is locked out.

Jim Molloy, Bullock’s senior advisor, told the press “there will be no negotiations.”

I’m told Blasdel is furious about what just went down in the Senate. My sources tell me Blasdel felt that the Senate’s actions violated the deal that was carefully crafted last night. He was especially incensed, I’m told, about the notion that Priest, Wittich and Essmann were somehow uninformed about the deal. I don’t know if that’s true, because Blasdel is nowhere to be found.

Wittich told me that Priest was involved in the negotiations, but that some changes took place after the Senate GOP leaders stepped away from the table. When SB410 came over the Senate it was not deal that was agreed to, Wittich claims.

Priest and Wittich refuse to tell the press what they want from the Governor’s office.

Bullock appears unwilling to engage the Senate GOP in negotiations, so it could come down to the Senate killing SB410 by not suspending the rules, then Bullock vetoes HB2 because the deal was broken.

If they don’t get this resolved today then the House, which already adjourned would have to come back. One House of the Legislature cannot adjourn Sine Die without the other House until after Day 88. We’re on Day 87, so if this doesn’t get resolved today, we’re back here tomorrow. And if it doesn’t get resolved then, well… then we’re back here for a special session.

Update: I just got more details on the Sine Die law:

In the Constitution it states:

Neither house shall, without the consent of the other, adjourn or recess for more than three days or to any place other than that in which the two houses are sitting.

But – Joint Rule 20-10. Consent for adjournment or recess:

As required by Article V, section 10(5), of the Montana Constitution, the consent of the other house is required for adjournment or recess for more than 3 calendar days. Consent for adjournment is obtained by having the house wishing to adjourn send a message to the other house and having the receiving house vote favorably on the request.

The receiving house shall inform the requesting house of its consent or lack of consent. Consent is not required on or after the 87th legislative day.

Since day 87 is burned – the three days runs us through day 90.