Joe Balyeat is the state chairman of Protect Our Homes Montana, the chief proponent of Initiative 154. Balyeat, a Republican, represents Montana’s 34th District in the state Senate and is a certified public accountant.

[Editor’s note: This interview was conducted before the Montana Supreme Court rejected an appeal by proponents of Initiative 154 seeking to put it and two other initiatives back on the ballot.]

Can you tell me just briefly what [Initiative 154] is and why it’s necessary?

Sure. I-154, the Protect Our Homes Initiative, is designed to protect your home and property from various types of government taking — one distinct type, I suppose, being the most recent eminent-domain abuse as a result of the U.S. Supreme Court’s Kelo [v. City of New London] decision, where the government comes in, takes your home or property, allegedly gives you fair market value for it, and then turns around and sells that to another private developer — the rationale for it being that the local government can generate more tax revenue [from] the redeveloped property. The other aspect of I-154 [is] where government doesn’t outright take your home or property, but places such intrusive regulation on it that it diminishes significantly the value of the property and diminishes your enjoyment of it because you’re restricted in how you use it.

In both cases it’s, we believe, an abuse of government power, and I-154 is designed to combat both of those types of abuse — either partial taking through regulatory intrusion or a total taking allegedly with fair market value. I keep saying “allegedly” because I’m a certified public accountant and by background we talk about what’s called an “arm’s length transaction” as CPAs. In an arm’s-length transaction both parties voluntarily enter into the agreement for the mutual advantage of each. Clearly, when government uses eminent-domain confiscation, both parties are not entering into the agreement voluntarily, and so accountants would say that’s not an arm’s-length transaction. You can’t justify that it’s fair market value no matter how many different ways you try to explain it away; if the person doesn’t want to sell it at the price offered, then it’s not fair market value.

We intended to correct that with I-154 by saying that Montana governments and local governments — city, county, and state government — cannot use eminent domain to confiscate your property if they’re going to simply retransfer it to another private party. We address the partial-taking side of it, the regulatory intrusion, I think in a very reasonable and balanced fashion. We do ultimately say that a property owner who has seen the value of his property be diminished by regulatory intrusion does have recourse to attempt to make a claim within two years of the new regulation, to try to get monetary compensation. But we have so many different levels of safeguards that I don’t
believe it’s at all an outrageous or radical idea.

One of the safeguards is that we have numerous exemptions in I-154 that allow government to continue to engage in regulation that fits the exemptions. More importantly, I-154 is not retroactive, and they’ve often tried to compare it to Measure 37 in Oregon and say that this is going to cause all sorts of chaos — [that’s] simply not true. Measure 37 in Oregon was retroactive, it went back and abolished, from day one, all land-use regulation and zoning [that is, measures enacted after the owner acquired the property]. I-154 doesn’t abolish anything that’s already on the books. If it’s already on the books prior to I-154 becoming law in November, all those regulations and zonings still stay on the books. None of those are repealed. Even if new regulations are proposed after I-154 takes effect, those new regulations are still allowable as long as they have some logical nexus to public health, safety, sanitation, solid waste, hazardous waste. Common nuisances can be regulated against — things like pig farms and gravel pits, things like that. There are about 15 different exemptions or exceptions in I-154 that allow local governments and state government to continue to do their job with regulations and land-use zoning, et cetera, as long as the regulations have some rational nexus to public health, safety, et cetera.

What I-154 is really aimed at is regulatory abuse, where sometimes local governments just go overboard and they veer away from just regulating your property for public health, safety, et cetera, and start veering off into regulatory issues that really are just a matter of personal aesthetic taste. For instance, in the city where I live, Bozeman, Montana, our city commissioners at one point got off into regulating the slope of your roof, the color of your paint, the shape and size of your windows. It just got to the point where it was absolutely ridiculous. They would blackmail property owners, not give them building permits or whatever until they acquiesced to all these issues that are nothing more than government officials trying to impose their own what I call “boutique designer view” of what a community should look like that really has no rational nexus to public health and safety.

Can you give me a sense of how much of a problem regulatory takings and eminent domain have been in Montana, relative to other states?

I think it’s been a huge problem. Of course, it depends on whose ox is being gored. I mean, there will be those who are on the controlling end, where they’re controlling other people’s property without having paid for it — either through some sort of land-use restrictions or people involved with government or environmentalists, et cetera — that are all in favor of government control because it’s a way, basically, to control other people’s property without having to pay for it. So I think it’s been a huge issue, but it depends on which end you’re on, the receiving end or the giving end.

The property owners who have been subject to the tremendous regulatory restriction that prevents them from enjoying their property the way they would normally see fit, to them, it’s a life-changing experience. I have people calling me, virtually every day, who have been on the punishment end of these types of government abuse.

It’s an interesting situation. This type of government abuse is taking something that, for instance, the whole community might benefit from — of course, I would even argue whether the community benefits from some of these ridiculous designer-type zoning and other types of regulations — but allegedly, the whole community benefits from something and they impose the whole cost on one individual who happens to own the property. They say you can’t do what you want with it, you’ve got to leave it as primarily open space, or a park, or whatever. It’s a little bizarre to me, because most of the time the way government works is they’ll take a little from all kinds of people — diffuse costs and concentrated benefits — and that’s the way they’ll get away with a lot of stuff — take a little bit of taxes from everybody and then bestow big favors on a particular class of people. In this particular case, it’s even worse, because what you see is concentrated costs and diffuse benefits. You’re going to impose on one individual the entire cost of something that allegedly benefits the whole community.

And that’s where I think I-154 is particularly important, to somehow balance the scales a little bit. Because otherwise, the government can run amok, ganging up on one individual landowner or property owner after another to benefit the whole community — allegedly — and making one person pay for it. I-154 would change that, I believe, because if a person can show that they’ve been subjected to abusive regulation that has no rational nexus to public health and safety or the other exceptions, they can file a claim within two years of this new regulation. But even if they do that and they’re successful with the claim, it still wouldn’t require that government has to pay money out. Because government has three options at that point: They can either exempt that property owner from the new regulation, they can repeal the regulation entirely, or they can compensate that property owner for his lost value resulting from their intrusive regulation. So I think it’s a really good balance.

What is the current status? I understand that there was a [Montana] district court judge who ruled that some of the ballot signatures were, in his view, invalidly obtained.

The words he used were “tainted and fraudulent” — the signature gathering.

That’s currently on appeal?

It is on appeal to the Montana Supreme Court.

As, as I understand it, they’re probably going to be making a decision in the beginning of October — or at least they’ve asked for filings by the beginning of October.

Yes. Absolutely. It’s a very sad situation. I’ll tell you, I read his [47]-page opinion over and over and over again. And I actually wrote an article for statewide [distribution] to newspapers analyzing his decision. There’s a lot of mathematical mumbo jumbo where he went through all the calculations trying to argue that as much as 94 percent of these signatures were tainted because of the way the signatures were gathered. But I went back and cut right to the quick to what his arguments were. He had three basic arguments, all three of which, I would argue, are fraudulent arguments.

The first was he said that up to 43 signature-gatherers used false addresses. That’s simply not true. The Montana law is not specific — it just says that the signature-gatherer give an address. It doesn’t say residence address. These signature-gatherers — some of them used their contact address. While they were in a particular city, say Billings, Montana, gathering signatures, they put the address that they were using in Billings where they could receive pertinent mail during the signature-gathering process. That was a perfectly reasonable interpretation of the Montana law, because it was not specific to say “residence address.” The judge has now come back, after the fact, and retroactively changed that phrase. The Legislature, of which I am a part, left it a general word, “address,” and [the judge] has now said, “No, I insist that it must be your residence address.” [It] not only changed the meaning of that legal term, but retroactively applied it, when these people relied on the best advice they had at the time as to what address they could use. And, then, in so doing, [it] accuses them of falsifying something.

The second point he made is that some of the signature-gatherers signed affidavits and they were not the ones — in Montana, you must sign an affidavit with every stack of signatures you turn in — and he said that some of these people were not physically gathering these signatures. They claimed they assisted in gathering the signatures. The state of Montana says [in its trial court brief that] the phrase ‘assisted in gathering signatures’ is to be interpreted broadly and that a person could qualify as assisting in gathering the signatures if he simply supervised, for instance, or trained signature-gatherers, and was not physically there, in their presence, when they gathered the signatures.

The signature-gatherers for all three initiatives [I-154 and Constitutional Initiatives 97 and 98, which dealt with spending limits and judicial recall, respectively], relied on the state of Montana’s official definition when they signed their affidavits. This judge then retroactively goes back in and changes the meaning of that key legal phrase and he says, “I’m not going to agree with the state, I think it should be narrow, that you must have physically been there while the signatures were gathered in order to sign the affidavits.”

Now, you can see what’s going on here. First of all, the law wouldn’t even have the phrase “assisted in gathering” if it were supposed to be restricted to physically gathering the signatures yourself, so his redefinition doesn’t even make sense. But even if his redefinition was viable, it’s simply sickening to me that a judge would retroactively change the definition and then throw out 140,394 signatures based on his new, retroactive re-definition of the legal term — and then, moreover, have the gall to accuse these people of fraud, saying they’re fraudulent. It’s fraudulent to me that a judge would retroactively change the meaning of key legal phrases when they relied on the official state definition, and then throw out 140,394 valid signatures of citizens of Montana who want a chance to vote on this. If there’s fraud anywhere, it’s fraud by the judge.

The final thing that he said was that some of these people were duped into signing these petitions, that there were three different petitions, one of them being I-154. The contention made by those who were opposing us and wanting these thrown out by the judge was that I-154 was used as the bait to get people to sign, because it was a very popular initiative, because people want to protect their homes and property — and so people would sign the top petition and then, allegedly, some signature-gatherers took the other two initiatives — one a spending limitation and the other an initiative to recall judges more easily in Montana, because it’s virtually impossible right now to recall judges — and they put those other two petitions underneath our Protect Our Homes I-154 initiative and tricked people into signing the other two, because they were happy to sign the top one, and then they said things like, “You can sign in triplicate.”
First of all, there were only nine people who alleged that something like that happened to them, in the whole state of Montana. Every one of those nine people already had a chance at justice, because in Montana you can actually go down to your local courthouse and have your name removed from a petition if you signed and later decide that you didn’t want to sign it. And several of those nine people did in fact already have their name removed.

Now, this judge says that, in order to give these nine people a second chance at justice, he’s going to throw out 140,394 valid signatures of people who want their names on these petitions and want to see these three initiatives on the ballot. So, he’s in effect denying any justice at all to thousands upon thousands of Montana citizens, in order to give a second chance at justice to nine people who made these allegations, where they simply didn’t take the time to read what they were signing and now want to throw away justice for the rest of the citizens of Montana, so they can have a second chance at justice. It’s really mind-boggling what judges can do in Montana.

Do you expect the Supreme Court to reinstate it?

I do not. The Montana Supreme Court is the most left-wing court in the entire country, not just by my estimation, [but] by the estimation of many people. In fact, people on both sides of the political spectrum agree that the Montana Supreme Court is the most activist court in the country by most measures. In fact, [there was] a study of the Montana Supreme Court [that] discovered that, lo and behold, the Montana Supreme Court overturns its own prior decisions at far and away the highest rate in the country — in fact, [at] more than twice the rate of the second-highest court in the country.

The Montana Supreme Court and, in fact, all Montana district courts have had a history of political bias that is astounding. For example, there have now been six politically conservative voter initiatives thrown out by the Montana courts over the last 15 to 20 years. During the same period of time when they’ve thrown out six politically conservative initiatives, there’s never been a single politically liberal initiative thrown out by the Montana courts. It’s just a very sad state of affairs. In some cases, one [was an] initiative that would have given the people of Montana the right to vote on tax increases, an initiative I chaired myself. In fact, I gathered thousands of signatures myself on street corners. The people voted for it, we already had the election, and the Montana Supreme Court went in and retroactively changed the meaning of a key legal phrase and used that as an excuse to throw out that initiative as well, even after the people had voted it in. Montana, I would say, is kind of a serfdom under the rule of the courts.

How is the Supreme Court selected in Montana?

Popular election. But it’s such a slanted playing field that almost all Supreme Court judges and district court judges get re-elected. The reason they do is because, in Montana, you’ve got to be a member of the Bar to be on the court. Anybody who’s got a good career in law would have to, in effect, risk his career to run against a local judge or Supreme Court judge because if he loses, he’s created a lot of animosity with the judge who in effect decides the success or failure of his career. So you have to basically put your whole career on the line to run. And that’s why oftentimes if people do have any opponent whatsoever — in fact, right now I can think of two Montana Supreme Court judges who are running for re-election and neither one of them has an opponent, to my knowledge.

If I could ask one more quick question, the other legal challenge — I’m not sure if you could even call it a legal challenge — but an attorney from Helena, Jonathan Motl, filed a complaint against your group, as well as the other two initiative groups and Montanans in Action, which, I gather has been a significant funder of all three, with the Commissioner of Political Practices, with regard to the campaign financing.

Let me address that real quickly, but let me back up for a second because it’s a good segue. The real irony of this court case, where they’ve thrown out the three initiatives based on the three faulty arguments that there were some signature-gatherers who weren’t physically present and yet still claim that they assisted in gathering the signatures — the irony is that the organization that hired the attorneys and made these arguments before the judge is headed up by Mr. Eric Feaver, who is head of [the Montana Education Association-Montana Federation of Teachers, a union representing teachers and other state employees]. Mr. Eric Feaver, in one of the liberal initiatives, signed hundreds of affidavits saying that he assisted in gathering signatures for their own initiative, a minimum-wage initiative [I-151], across the entire state of Montana. Here’s the hypocrisy: Someone who did the exact same thing and used the exact same legal definition that our signature-gatherers used, that he assisted in gathering signatures even though he wasn’t there physically, that he would have the hypocritical streak in him to hire a lawyer and make the case before a Montana judge that our initiative should be thrown out for doing the exact same thing that he himself was doing.

Now, that was part of the legal complaint, not the [Commissioner of] Political Practices complaint?

That’s correct. Now, let me segue into your question about the Political Practices complaint. The Political Practices complaint I don’t know as much about because I’m not a member of Montanans in Action, I’ve never been to one of their meetings, I have no idea who any of their contributors are, nor do I have any legal access to their books, so I’m a little bit in the dark. The issue is this: They claim that it’s somehow unethical or perhaps legally wrong that the people contribute to Montanans in Action and have the benefit of secrecy with their contributions and then Montanans in Action has turned around and, in large part, funded these three initiatives. And so, for instance, my initiative I-154, has large sums of contributions from Montanans in Action and the opposition has made the further allegation that Montanans in Action is funded almost totally by some out-of-state entity. So they’re arguing that people who aren’t even residents of Montana are largely funding this.

Again, I don’t know who any of the contributors are to Montanans in Action, but I do know a few things in general. I know for a fact that Montanans in Action has at least 100 Montana contributors to it, in addition whatever money it gets from outside Montana. I also know that, again, the hypocrisy is there. I know that two of the more liberal political initiatives this time around have also been funded by single large entities that put in all the money. For instance, the minimum-wage initiative only has two donors to the whole initiative: one of them being the [MEA-MFT], and I believe the other — and I’m not absolutely positive, but I’ve been told that the other one is the Democratic Party. Now, in both those cases, you have individuals who have paid money into those organizations — the Democratic Party and [MEA-MFT], — who in turn made contributions into funding the initiatives and, in effect, shielded the identity of the individuals who contributed to that minimum-wage initiative. It’s the exact same scenario. I also know that the Governor [Brian Schweitzer] himself has an initiative on lobbying that was only funded by one donor.

They’ve been critical of our initiatives, trying to claim that these don’t represent the desires of grass-roots Montanans because they have one large donor and only a few small donors; one of our initiatives has 123 other donors and the others have just a handful of donors other than the large contributions from Montanans in Action. But it is the exact same scenario these more liberal political initiatives also have only one donor or two donors and have no other individuals from the state of Montana whatsoever, so they’re in fact even worse than our initiatives, and yet they have the hypocritical streak to make allegations that somehow our initiative should be thrown out and we should be subject to fines, while these left-wing initiatives, no one even says a word or challenges them — certainly not the press.

One final question, if I might. You mentioned that you’re in the state Senate. Should this not make it back onto the ballot this November, or should it make it back onto the ballot and not pass, would you imagine there would be some sort of effort to take up a measure, along these lines, legislatively?

It depends on what the outcome of the election is, sir. We have a Democratic governor who’s a holdover. Certainly, if the election turned out that we had a veto-proof Republican majority in the Senate, then I think yes, all three of these initiatives would probably be revisited in the Montana Legislature. If we don’t end up with a veto-proof majority or no majority at all, I think any attempt at trying to bring this stuff back legislatively will be futile.

One of the things I want to go back and touch on is, in the content of I-154, even though it has all these numerous exemptions, there are those within government and within environmental groups who are claiming the sky’s going to fall in if this passes — that government officials won’t be able to do their jobs, all land-use regulations would go by the wayside, neighborhoods would be destroyed, state government treasuries would be emptied, and on and on and on, the sky is going to fall. It’s simply not true. I-154 has so many reasonable exemptions in it that it’s going to allow government officials to do the jobs that are necessary in terms of maintaining public health, safety, sanitation, common nuisances, historical nuisances, things like that.

But that’s the history of how bureaucracies work. Academic studies show that whenever a law change is proposed, those within the bureaucracy will grossly exaggerate its consequences. They will argue that it’s going to make it impossible for them to do their jobs and that, in effect, the sky’s going to fall. But the interesting thing revealed by these academic studies is that once this new law change does became law, those same bureaucracies turn around 180 degrees and instead of exaggerating the consequences of the new law change, they minimize it. They say, “Well, it’s got this exemption and that exemption and this exception over here, and everything we do fits one exemption or the other or perhaps fits two or three exceptions, so this new law change is hardly going to be consequential at all to how us bureaucracies do our business.”

And that’s exactly what’s going to happen with I-154, the Protect Our Homes initiative, and some of the other ones around the country, is that once the elections over, the ones that pass — those bureaucrats who are screaming and grossly exaggerating the consequences of those initiatives will, beginning the day after the election, start turning around 180 degrees and minimizing the effects of the initiative.