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City of Missoula v. Fox

Supreme Court of Montana

October 22, 2019

CITY OF MISSOULA, Plaintiff and Appellee,
v.
TIMOTHY C. FOX, in his official capacity as the Attorney General for the State of Montana, Defendant and Appellant.

          Submitted on Briefs: September 11, 2019

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-32-2018-429 Honorable Robert L. Deschamps, III, Presiding Judge

          For Appellant: Timothy C. Fox, Montana Attorney General, Patrick Risken, Matthew T. Cochenour, Assistant Attorneys General, Helena, Montana

          For Appellee: Scott M. Stearns, Zach A. Franz, Boone Karlberg P.C., Missoula, Montana Eric A. Tirschwell, William J. Taylor, Jr, Everytown Law, New York, New York James P. Nugent, City Attorney's Office, Missoula, Montana

          For Amici Curiae Mark Grimes, Heidi Kendall, and John Moffatt: James H. Goetz, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana Ira M. Feinberg, Hogan Lovells U.S. LLP, New York, New York

          For Amici Curiae National Rifle Association: Robert T. Bell, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana F. Peter Lansiedel, Schulte Law Firm, P.C. Missoula, Montana David H. Thompson, Cooper & Kirk, PLLC, Washington, District of Columbia

          OPINION

          JIM RICE JUDGE.

         ¶1 Timothy C. Fox, Attorney General for the State of Montana, appeals from the entry of summary judgment in favor of the City of Missoula (City or Missoula), by the Fourth Judicial District Court, Missoula County. The judgment declared that City Ordinance 3581, City of Missoula, Mont., Municipal Code § 9.60 (2016), was not prohibited under Montana law, overturning an opinion issued by the Attorney General, 57 Op. Att'y Gen. No. 1 (2017). We reverse and remand for entry of judgment in favor of the Attorney General, and restate the issues as follows:

1. Is the City's declaratory judgment action justiciable, given the ordinance has not been enforced?
2. Did the District Court err by holding that Missoula, a self-governing municipality, may require background checks on firearm transfers without violating the statutory prohibition upon local government regulation of the "purchase, sale or other transfer" of firearms?

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 On September 26, 2016, the City adopted Ordinance 3581 (Ordinance), which imposed a requirement upon persons purchasing or otherwise receiving a firearm in the City, including from private unlicensed dealers, to pass a national instant background check. The Ordinance provided some exceptions for certain transfers, such as those involving immediate family members, antique firearms, law enforcement, and temporary transfers "necessary to prevent imminent death or great bodily harm to the transferee." City of Missoula, Mont., Municipal Code § 9.60.050 (2016). As the City explains, its purpose in enacting the Ordinance was "to close a loophole in federal law" that permits firearm transfers involving private unlicensed dealers to be completed without a background check, thus facilitating the transfer of guns to convicted felons and other people otherwise barred from owning firearms. Any transferor or transferee violating the Ordinance would be guilty of a misdemeanor "punishable by a fine of up to five hundred dollars on the first offense and thereafter for subsequent violations by a fine of up to five hundred dollars or by imprisonment for not more than six months, or by both such fine and imprisonment." City of Missoula, Mont., Municipal Code § 9.60.060 (2016). A charge has not yet been brought under the Ordinance.

         ¶3 Shortly after the Ordinance's enactment, then-Speaker of the Montana House of Representatives, Austin Knudsen, requested an attorney general's opinion regarding the validity of the Ordinance. The Attorney General issued an Opinion that concluded that cities with self-government powers were "prohibited by Montana state law from enforcing a local regulation or ordinance requiring background checks on firearm sales or transfers," and reasoning that cities could not exercise "any power that applies to or affects the right to keep or bear arms" pursuant to § 7-1-111(9), MCA. 57 Op. Att'y Gen. No. 1, 9 (2017). The Attorney General also cited § 45-8-351(1), MCA, which generally provides a city "may not prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun," and concluded that the Ordinance was not permissible under the statutory exception to this prohibition.

         ¶4 The City filed this action challenging the Attorney General's Opinion and seeking a declaration that the Ordinance was a lawful exercise of its self-governing powers, and moved for summary judgment. The Attorney General sought dismissal of the action, arguing there was no justiciable controversy and that, alternatively, if the court found a justiciable controversy existed, that "established rules of statutory construction demonstrate that Missoula's claim of authority to mandate background checks as a self-governing city is error." The parties agreed there were no material factual disputes and that the case involved purely legal issues. The District Court concluded a justiciable controversy existed, that the Attorney General had failed "to recognize the law's presumption in ...


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