Analysis of MPI v State of Montana

This week Judge McCarter ruled in favor of the Montana Policy Institute to issue a writ of mandamus against the state, forcing the state to provide the think tank with employee compensation information stored in electronic databases.

Background

MPI had made an information request to the Montana Department of Administration to access state employee compensation information; which included base/overtime/bonus/other salary/other compensation information. The Department denied the request, noting that the work would take 30 hours of labor to a production cost of $723. The Department had further indicated that it could not staff this work and did not have produced/customized versions of the data on hand. MPI had offered to pay the cost but was refused, resulting in the petition.

Clear Legal Duty?

For a writ of mandamus to be issued, the party must have a clear legal duty to perform the action being denied. Montana has an exceptional constitutional and legal standard and tradition of right to know rules, starting with Article II, section 9 of the State Constitution.

Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

This was referenced in the judgment. Further cited in the ruling was Section 2-6-102 MCA:

Citizens entitled to inspect and copy public writings. (1) Every citizen has a right to inspect and take a copy of any public writings of this state, except as provided in 22-1-1103, 22-3-807, or subsection (3) of this section and as otherwise expressly provided by statute.

The mentioned exceptions did not apply to this case.

The major issue for the judge to decide was whether the department would have the obligation to take data spread out in several databases & several formats to create a customized report.

Although no MT Supreme Court rulings clearly answer the issue, the judge combined a host of out-of-state decisions with Montana’s tradition of a “strong commitment to access public records” in concluding that an application of these principles covers MPI’s request to MDA.

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The Judge addressed several other issues within the decision.

Are the records a “public writing” or “document” per the Montana constitution?

Judge McCarter noted that the Montana Constitution was drafted well before the era of electronic documentation/communication/data storage. The Judge also acknowledged that most data stored by the state is now kept in an electronic format. Finally, the amended 2-6-110 MCA clearly states that the definition includes “electronic format or other nonprint media,”. Therefore, this data is subject to public right of access legislation.

Writ of Mandamus appropriate?

The first part of the writ of mandamus test holds that it may only be issued in the extraordinary situation that a party has a clear legal duty that is not being performed. The second test, per 27-26-102(2) MCA, holds that it may only be issued if there is no other speedy legal remedy for the claiming party. The state contested that MPI did have an alternative remedy. In citing state caselaw, the Judge held that the Montana Supreme Court indicates that a writ of mandamus is more efficient than a declaratory judgment against a public body as it calls for action on the part of the state.

Costs and attorney fees were also ordered to be awarded to the institute.

Relevant Obiter Dictum

While the judge awarded the writ in this case, it does not establish a new precedent opening the “floodgates” for thousands of parties requesting thousands of hours of work for the state issuing public information requests.

…it may be argued in some cases that information requested by a member of the public in a particular format is too burdensome for the agency in time and money to be reasonable, [however] the Court does not believe Policy Institute’s request is that oppressive, particularly since Policy Institute is willing to pay the cost of production.

 

 

Latest EPA Power Grab

EXPLICIT: S*** Lazy Economists Say

You know you love it. Foul language, but what more would you expect from an economist?

Ron Paul Cuts Romney’s Lead in Half in New Hampshire… Media Give Headline to Santorum.

Rick Santorum: Does he understand foreign relations? Is he destroying the Family?

Rick Santorum has shot into the spotlight following his recent Iowa victories, fortunate enough to peak so late into the race he didn’t have the opportunity to receive the scrutiny of a frontrunner. However, he now has the disadvantage of being both far behind in the polls in every other state as well as receiving the maximum scrutiny. Doesn’t seem good.

After earning his millions losing a senatorial election and becoming a washington insider, he seems rarin’ to make a stand. On the poll side, I’m not too ready to treat him like a frontrunner, as he’s polling so bad nationally he’s behind the person who dropped out of Iowa. Although it’s one state at a time, one would prefer to be on the higher side of single digits.

But, as Perry/Gingrich/Paul/Romney/Bachmann/Cain have all had their turns being scrutinized, I say we give Santorum a fair shake.

On Iran, he makes it seem like he would only attack if all options were exhausted. Sounds sensible, right? Not exactly. We’ve been standing alone for 20 years beating the tar out of Iran (not counting our work in their government from 1950-1980) with sanctions, claiming that the country isn’t cooperating with us. What options does that leave a potential President Santorum? Although trade and cooperation is solely responsible for the downfall of Vietnam, the Soviet Union and instills strong peace ties with China, Santorum seems to prefer the sin of Pride over the blessing of friendship.

P.S. How are those Cuban sanctions working out?

Point is, even if every fiber of your being hates Iran and truly believes they are an evil anti-America nation, you have to care about your methodology in preserving peace going forward. More often than not, trade and open diplomacy has facilitated more peace than sanctions, death, violence, bombs, imprisonment and torture. Just a thought.

On to the title, Santorum sees a role for the state in enforcing personal moral values in society. If he gives this power to the state, he’s one election away from having his morals ripped out from underneath him when a different individual takes office. I have faith he can still be educated. Maybe.

Good reason video- Santorum in his own words.

Nanny of the Year, where we take a break from being depressed about expanding regulation to laugh at it

There’s really nothing more I can say. Watch the video and have a fantastic 2012!

http://www.youtube.com/watch?v=26fGGqOEFuY

P.S. This post is dedicated to the memory of my lost magnificent beard, which met its untimely demise in a razor accident last week. Your thoughts and prayers are well received.

:(

Urine Tests, Fingerprints, FBI Background Checks to Obtain Gov’t Permission to Speak!

Occupational Licensing, once restricted to 1 in 20 Americans only 50 years ago, now affects 1 in 3. Nightmare.

Brief Thoughts on the Minimum Wage

We have no choice in Montana but to have the minimum wage (at at least the federal minimum)- if you ever speak out against it you’re pegged as some evil capitalist monstrosity.

I for one, think there are strong arguments that if you support decreased unemployment, freedom, creative/artful society, morality, fairness, progress, you ought to oppose these policies. I’ll write more on it soon, but here are some brief basic thoughts.

Minimum wage doesn’t destroy the market value of your skills and services. Instead, it gives you three options:

1. engage in activities/labour/services that the market values at at least minimum the price of the minimum wage.

2. If your ideal activity (say- studying jellyfish, playing an accordion in a bar, waitressing for your aunt’s startup restaurant on weekends) has a market value of less than the minimum wage, engage in other activity.

3. If you are not able to offer these services , take welfare payments until the market shifts to where you are useful enough to society to be employed.

In some ways, I feel minimum wage ideals are more offensive to self-respect, morality and creativity than a $4 wage.

The “Loo-Watt”, Sustainability and a Waterless Toilet System

Ingenuity doesn’t come from the state, it comes from the people. Is this a fantastic idea? I think so, but I don’t possess all knowledge.

The best ideas for the environment, sustainability, solving poverty, etc. will be best determined by the rigorous regulations of the marketplace.

The government has already proven it doesn’t possess the capabilities to efficiently provide for sustainability or alternative energy.

Get these into production! I’ll take two!

Schwad

The Failure of the European Monetary Experiment: Guest Column, Alexander Lopez

Not since World War II has Europe stood so closely to the precipice of calamity as they do now. Excessive amounts of sovereign debt in Portugal, Ireland, Italy, Greece and Spain (the PIIGS) threaten to send the entire Eurozone into an economic tailspin from which recovery is highly unlikely.  Past attempts to remedy the debt crisis have only served to temporarily delay the inevitable while simultaneously digging the hole ever deeper.  However, before one can understand the crisis, it is important to have an understanding why the Euro was doomed to fail from its inception.

The common currency for all Eurozone members (17 of 27 European Union countries), the Euro, was created in 1992 with the inception of the Maastricht treaty and fully adopted in 2002. With the Euro came the European Central Bank (ECB) and a centralized monetary policy. Additionally, fiscal (taxing and spending) limits were also placed on governments in order to prevent them from taking on too much debt which, under a common currency, can significantly harm other member countries. Now here’s the kicker – the words written to place fiscal restraints on individual countries were just that, words. No serious enforcement mechanisms were put in place to punish countries that disobeyed. Any person that has spent time with a small child knows that a rule with no enforcement is not really a rule at all.

As can be expected, certain countries lacked the political will to restrain spending (sound familiar?) and currently find themselves under a massive pile of debt. Cue the finger pointing and ignorance claiming of the oh-so innocent politicians in Brussels (the capital of the EU) and respective national capitals. In this case, however, ignorance is a tough sell. Economists from such ideological polar opposites as Paul Krugman and Milton Friedman both foresaw the problems that would arise from having a monetary union without one single, enforceable fiscal policy.

The PIIGS have taken on so much debt that they threaten to bring the entire Eurozone down if they default. The most immediate threat comes from Greece, which after converting to the Euro went on a debt-fueled binge of public spending. Sadly for them, the market has come to the realization that they will likely never be able to pay back their debt, which also means a credit rating downgrade and higher interest payments on debt moving forward. That being said, the phenomenon of enormous borrowing is not limited to Greece. Many other countries, such as the other PIGS, U.K., France, and the United States (yes, you read correctly) have all spent beyond their means and are sitting on piles of debt that are ever increasing in size and interest payments. The only difference between Greece and the other debt-ridden countries is that the “(stuff) has hit the fan” first for Greece, putting them in the spotlight. Know that soon enough others will fall directly in their footsteps.

As early as 2009, credit ratings agencies saw the problem with Greek debt and proceeded to downgrade their credit rating. Soon thereafter in April 2010, the call for Greek bailouts started to flow. Instead of attacking the core problem of bloated government spending, by May 2010 the EU and International Monetary Fund (IMF) put together a 110 Billion Euro (146.2 Billion Dollar) bailout package. The conditions of the bailout were that Greece would take large strides towards austerity and make “great sacrifices” as said by PM George Papandreou. These ‘loans’ were meant to assure the markets that Greek bonds had the full support and stability of the EU/IMF. They were essentially saying, “We promise we won’t let them default, so keep buying their debt.” Yes, because when you are in a hole, digging deeper is the obvious solution. Artificial injections of confidence rarely fool markets for any significant period of time, and this was no exception.

Predictably, Greek politicians made promises they could not deliver on—big surprise – and, once again, Greece is nearing default on its debt obligations. Cue bailout preachers. “We need it! We deserve it! Everyone will suffer!” The bailout is not only being lobbied for by Greeks along with other Eurozone countries, but additionally, many (pseudo)private banks are in the queue. The banks are in line because if Greece defaults on their debt, the bonds they purchased will never be repaid.

These largely French and German banks bought very large amounts of high risk sovereign Greek debt (bonds) and now find themselves heavily financially exposed with the possibility of a Greek default looming. They are now coming to the table begging for bailouts to save their own behinds (sound familiar?) If they had turned a profit, they surely would not have shared it with the taxpayer, right? Yet, since they made massive unsound investments, taxpayers are expected to foot the bill. Sounds a lot like “heads I win, tails you lose” to me. The point being is that bailouts encourage risky behavior and eventually beget more bailouts. Moral hazard, anyone?

The tone of this article may sound like I am ganging up on Greece, however, I am not. I refer back to my earlier caveat that they are only the tip of the iceberg, and as we all learned from the film Titanic, 90% of an iceberg’s mass lies below the surface. Paul Krugman recently wrote that Greece is,”… no more than a grim sideshow,” while Italy, and to a slightly smaller extent Spain, pose the true, largest threat. They are the third and fourth largest economies within the Eurozone, and if they were to default on their debt – which looks increasingly likely – the whole system could not avoid a collapse.

Well, the second bailout everyone clamored for came in the wee hours of October 27th, when Greece was given a new 130 Billion Euro (184.7 Billion Dollars) check form the EU/IMF. Additionally, private bond holders (banks) agreed to a 50% writedown, or popularly known as a “haircut”, in the value of the Greek bonds they own. This, in layman’s terms, is a default on half of its debt. A provision to increase the European bailout fund by four to five times, which would be near one Trillion, was also included.

Great! They stemmed the crisis, and Greece is not going to default. Correction – Greece will not default today. What about the future? What happens when Italy, Spain, Ireland, Portugal and France, which suffer from the same basic problems as Greece, come for their bailout? There simply will not be enough money to go around.

This leads to the obvious question – where should we go from here? Well, the EU was onto something with the semi-default of Greek debt, but they failed by not taking the sound logic to its conclusion – full default. As Harvard economist Jeffrey A. Miron poignantly wrote in the BBC, “The question for Greece is whether to continue its recent path – continued attempts at austerity, which do little to tame the deficit, followed by just enough bailout from the EU to avoid default – or whether to finally admit the obvious: it should default on its sovereign debt, abandon the euro, and go its own way.”

Mirons’ solution addresses Greece’s two main problems: crushing debt and an improperly valued currency. In what world does it make sense to have such vastly different economies as Germany and Greece under the same currency? The simple answer is never. Leaving the Euro would also mean that less risk will be born by other countries if Greece continues with their reckless spending ways. Are there negatives to this approach? Yes, Greece will be largely excluded from international credit markets for the immediate future, but this, however, seems like a reasonable alternative to writhing under the pain of austerity measures and slow economic growth for years to come. The bottom line is that if Greece is allowed to exit the Euro, it will return to a competitive currency, and the EU will have trimmed off some of the deadweight, making them both stronger.

Sadly, I do not believe this exit will happen soon. The EU is first and foremost a political union, above an economic union, and the Europhiles will be damned if they are going to sit idly by and let their creation break apart. No, they will support their vision of a unified Europe until the problem is so large no one can stop it.
Now we return to the question of “where should we go from here?” Continuing down the path of bailout to bailout has taken us this far with no end in sight. The only way to stop the problem at its root is to allow Greece and other countries the option to default, putting the costs not on European taxpayers but the financial institutions that took the risk and letting them abandon the ill-fitting Euro if they see fit.

This piece was originally published in the Carolina Review, written on October 28th.

Alex is a senior at the University of North Carolina at Chapel Hill along with owning and captaining a commercial salmon fishing boat out of Valdez, Alaska.  Last Summer Alex interned at the Cato Institute while simultaneously completing a Summer fellowship at the Institute for Humane Studies, both in Washington D.C.