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Thread: Compliant filed against Gary M. - MSSA - HB 228 - Self Defense Bill

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    http://opencarry.mywowbb.com/view_to...amp;forum_id=4

    Catherine
    Montana Shooting Sports Association Member
    Armed and Female
    Montana Territory for now...




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    http://thehighroad.us/showthread.php...65#post5137365

    Complaint filed against Gary M. - MSSA - MT HB 228 http://thehighroad.us/showthread.php...56#post5137356

    Under Activism.

    Complaint filed against GARY M. - MSSA! - HB 228
    I was given permission to post ALL of this information by Gary M.

    This 'complaint' is a crock of dung!

    This is for the old readers here (THR.us) and the NEW readers that heard about this issue when I called into a radio show discussing this 'complaint', reading this MSSA email over the air, discussing other pro gun and other pro liberty issues.

    Yours in liberty,

    Catherine
    Montana Shooting Sports Association Member
    Armed and Female
    Montana Territory for now...


    Sender: Gary Marbut-MSSA <mssa@mtssa.org>
    Subject: Complaint filed against me
    Date: Thu, 21 May 2009 10:23:58 -0600
    To: mssa@mtssa.org

    Dear MSSA Friends,

    You may be interested to know that a complaint has been filed against me by Jim Smith, the lobbyist for the Montana Sheriffs and Peace Officers Association (MSPOA). Smith's complaint to the Commissioner of Political Practices asserts that I illegally lobbied the Legislature, and violated Montana law, because I was not registered with the Commissioner as a lobbyist.

    Pasted below are two letters to the Commissioner in response to the complaint, one letter I WILL send (out in the mail today), and another letter I really wanted to send but decided not to. These letters will explain the situation.

    I consider this complaint to be an attack by the MSPOA, and an ill-considered attempt to harass, intimidate, and maybe silence me (and via me, you).

    Best wishes,

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

    ====================================
    On MSSA letterhead
    This is the letter I DID send to the CPP

    May 21, 2009

    Mr. Dennis Unsworth
    Commissioner of Political Practices
    P.O. Box 202401
    Helena, Montana 59620

    Re: Complaint by Jim Smith

    Dear Commissioner Unsworth,

    I have reviewed the complaint filed by Jim Smith of the Montana Sheriffs and Peace Officers Association accusing me of illegally lobbying without being registered with your office.

    Specifically excluded from the definition of a lobbyist is any individual who receives payments from one or more persons that total less than the amount specified under Mont. Code Ann. 5-7-112 in a calendar year. I received no payments for my activities on behalf of MSSA before the Montana Legislature. My time was donated. Thus, I am not a "lobbyist", as that term is defined in the Montana Code.

    I request the complaint be dismissed.

    Sincerely,


    Gary Marbut

    =========================

    This is the letter I DID NOT send (but I really wanted to).

    DRAFT - unsent


    May 21, 2009


    Mr. Dennis Unsworth
    Commissioner of Political Practices
    P.O. Box 202401
    Helena, Montana 59620

    Dear Commissioner Unsworth,

    I am in receipt of your letter of April 29, 2009, referring to the complaint filed against me by Jim Smith who is a lobbyist for and represents the Montana Sheriffs and Peace Officers Association and the Montana County Attorneys Association.

    Thank you for giving me a chance to respond to this complaint.

    Smith's complaint alleges that:

    1) I appeared before legislative committees speaking in favor of or opposed to various legislation as a representative of the Montana Shooting Sports Association,

    2) I am not registered with your office as a lobbyist, and

    3) By doing so I must have violated some laws.

    Points 1) and 2) are correct. Point 3) is a mistake on the part of Mr. Smith, made for reasons I will explain.

    The Montana Shooting Sports Association (MSSA), is, as the name states, an association of people interested in specific topics. Because MSSA is, in fact, an association of individuals, its activities are protected by the freedom of association that the people have reserved to themselves from government interference in the First Amendment to the U.S. Constitution (which applies to the states through "incorporation") and in Article II, Section 3 and Section 7 of the Montana Constitution.

    I am not an employee of MSSA. I am an elected officer - the President. I am also Chairman of the Board of Directors. These are both volunteer positions. I often characterize my political activities in Helena as those of a "citizen advocate." I do not hold a paid position with MSSA. I am not compensated, at all, by MSSA for the time I spend in Helena attempting to advance the interests of MSSA members and other citizens of Montana.

    In that capacity, I am exercising the freedom of speech the people have reserved to themselves from government interference also in the First Amendment to the U.S. Constitution (also incorporated as applicable to the states), and Article II, Section 6 of the Montana Constitution. Not only am I exercising free speech, I am exercising political free speech, a category of free speech that has been most highly protected and prized speech by the courts and our society.

    And, in addition to the fact that I don't get paid by MSSA (or anyone else) to advocate for citizens in Helena, I forego significant personal income because of the time I spend traveling, spend in Helena, and spend communicating with legislators and MSSA members. I lose money at this; I don't make money.

    On most of the occasions when I testified before committees of the 2009 Legislature, I reported that I was speaking also on behalf of the following organizations and their members (more freedom of speech exercise):

    Montana Shooting Sports Association, Gun Owners of America, Citizens Committee for the Right to Keep and Bear Arms, Weapons Collectors Society of Montana, Montana Rifle and Pistol Association, Montana Women's Shooting Association, Western Montana Fish and Game Association, Big Sky Practical Shooting Club, Custer Rod and Gun Club, Big Muddy Practical Shooting Association, Richland County Sportsmens Club, Bigfork Gun Club, Samuel Whitamore Memorial Range in Three Forks, Gallatin County Campaign for Liberty, MSU Young Americans for Liberty. For the record, none of these organizations paid me as much as one dime for the time I spent in Helena.

    I cannot locate any laws in the Montana Codes Annotated that require a citizen, or a citizen operating as a volunteer, to register with your office and pay a fee to be allowed to offer an opinion to the Legislature or legislators. I believe no such law exists. If such a law did exist, it certainly would not long be tolerated by the courts.

    Smith is also correct that I did send emails to MSSA members across Montana about issues of interest before the Legislature. If it matters, I sent those messages from my personal computer to people who have asked to be on the MSSA email information list, yet another exercise in free speech. Since I was reporting on events in Helena, that exercise may also fall within the reserved freedom of the press.

    The real issue is that Mr. Smith is a sore loser. He's feeling snitty because the measure MSSA supported, and he unsuccessfully opposed on behalf of the MSPOA and the MCAA, was approved by the Legislature and signed by the Governor. HB 228 is now the law in Montana, despite Mr. Smith's recorded but unsuccessful opposition.

    When testifying before the House Judiciary Committee in opposition to HB 228, Mr. Smith asserted that his employers "pay me well" for lobbying. Others may judge whether that payment is well spent by his employers. More important, it appears that Mr. Smith simply cannot comprehend that ordinary citizens will commit time and effort simply to assert important principles, principles enshrined in the Montana Constitution. I guess it takes a person of principle to recognize another. Mr. Smith, on the other hand is a mercenary - a hired gun - in his lobbying endeavors, and apparently assumes that anyone else in the same arena must be a mercenary too. That, of course, is a seriously flawed assumption on the part of Mr. Smith, but personally consistent with the equally flawed assumptions he voiced about HB 228.

    Mr. Unsworth, this complaint filed by Mr. Smith is clearly frivolous. It is unfortunate Mr. Smith chose to waste your time with it. He has my phone number. He could have called me to clear this up. Instead, he opted to attempt to use the power of a government agency to harass me (not a surprising choice for Mr. Smith). We will leave for another day the question of whether or not he has slandered me or attempted to damage my reputation. However, if you have a mechanism available to sanction people who file frivolous complaints, I request that you apply that mechanism to Mr. Smith.

    Mr. Unsworth, having had considerable experience in arena of public policy formulation, here's what I suspect is actually going on: Mr. Smith persuaded his employers, MSPOA and MCAA, that HB 228 was a dangerous bogeyman demanding opposition in order to impress those employers with need to freely spend the "good money" those employers pay him. Having broken the MSPOA and MCAA lance against the windmill of HB 228, and having recklessly squandered the finite political capital of MSPOA and MCAA in this losing effort, Smith must now claim that he was operating on an unfair, unlevel playing field in order to justify to his employers why he failed to destroy the windmill he'd sworn was actually a fierce dragon. I suspect that Smith is being called on the carpet by his employers for having wasted their influence on HB 228 when other legislative issues were practically more important to them. Blaming me for his failure in judgment and ability is Mr. Smith's excuse to his employers. The complaint filed is simply the formalization of that excuse.

    Frankly, this reminds me of the time the Montana Human Rights Network accused me of being a racist, coincidentally the very same week that MSSA endorsed Dr. Alan Keyes for President and when Dr. Keyes was a guest in my home. Like that incident, if this weren't so venal it would be hilarious.

    Sincerely yours,




    Gary Marbut, President

    Cc: MSSA Board of Directors
    MSSA members
    Organizations listed on Page 1
    Associated Press
    Chairman, Senate Judiciary Committee
    Chairman, House Judiciary Committee
    Chairman, Senate Legislative Administration Committee
    Chairman, House Ethics Committee
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    Catherine- Thanks for posting this, keep us informed of any new news concerning Gary Marbutt that you are allowed to post.

    I clearly stand behind Gary's position about Jim Smith, and his under handed way of dealing with this.


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    Where does the POS Jim Smith live?
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

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    Catherine wrote:
    ... a complaint has been filed against me (Gary Marbut) by... the Montana Sheriffs and Peace Officers Association.
    I can't believe that somecops can be so stupid.

    Why don't they side with our gun rights?

    What do they think will happen to them if a Second American Revoultion breaks out?

    I'm afraid Edgar Steel was exactly when he wrote the following in blog:

    "Second Annual State of the Revolution - A Report to the American People":

    http://www.nickelrant.com/rants/090318rant.htm

    "Just as the Boston Massacre and the battle at the Lexington/Concord Bridge ("the shot heard 'round the world") served to spark the first American Revolution against a tyrannical and oppressive British occupying government, so will the shooting of citizens of every color in the streets by a tyrannical and oppressive American central government lead to the Second American Revolution (third, actually, if you count the War of Northern Aggression from the 1860s that successfully put down the South's try for independence from Northern tyranny). That is when I will advocate shooting back, as if such then will be necessary.

    I expect government agents of every stripe to be cut down, right and left, throughout America by those who already are too disaffected to be pulled back when the time comes. Chuck Norris' "thousands of right-wing cells" will heave into action, demonstrating the profound wisdom of Louis Beam's foretelling of Leaderless Resistance."

    Our day will come, rest assured. All too soon. The day they start shooting us down in the streets. The day we start shooting back. Then will be the time to retake America. Then will be the time to even scores and settle accounts. Then we begin the long journey back toward freedom and a constitutional republic."


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    Appears this has not been resolved or a closed issue.

    Appears 3 or 4 of you live close to each other, know each other well, and make 80% or so of the posts on this web site under Montana.

    Maybe while having your group coffee, write up an one page letter to the Governor of the State of Montana then all 3 or 4 of you sign it and mail it to the Governor.

    Tell him what you think about Jim Smith, MSPOA, various Sheriff's (i.e. Lincoln, Yellowstone, etc) , various County Attorney's lying about what said in Helena and to the news media in regard to HB 228 ask the Governor to have the AG to investigate these lies, see if these people used tax money to refund their travel to Helena or did they lay their own way (if paid with tax money they need to give the money back), were these people on personal vacation time or personal leave without pay or if these people were in a pay status on duty then they used their official positions for personal gain to express their personal opinions (again wrong), and finally did these people travel in their own personal vehicles or duty vehicles - if govt vehicle then they need to pay for the useof the vehicle at about 50 cents a mile.

    These people were only expressing their personal opinion, not the official position of the tax payers in their cities and counties.

    At the least they should have to pay all money back for salary, travel expense, and car mileage then issue a personal statement of apology to the people in their cities and counties advertised in the newspapers, tv, radio, and post on their office of duty web site until the day they no longer work for the govt.

    Best is make these peoplere=pay all money and "fire" them, for improper use of public funds, lying, and misuse of their elected or appointed or hired govt position.

    Also post the letter you send to the Governor on various web sites including this one.





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    Our letter to the Governor about Jim Smith of the Montana Sheriffs and Peace Officers Association, will have little effect since the Governor has nothing to do with what is going on. Gary Marbutt is well versed and can handle this respectfully and come out smelling like a rose while Jim Smith will still be searching for answers and support for his lousy representation of the Montana Sheriffs and Peace Officers Association.

    And to think I was a member of the MSPOA at one time.

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    JBinMontana wrote:
    Our letter to the Governor about Jim Smith of the Montana Sheriffs and Peace Officers Association, will have little effect since the Governor has nothing to do with what is going on. Gary Marbutt is well versed and can handle this respectfully and come out smelling like a rose while Jim Smith will still be searching for answers and support for his lousy representation of the Montana Sheriffs and Peace Officers Association.

    And to think I was a member of the MSPOA at one time.
    ----- Original Message -----
    From: Gary Marbut-MSSA
    To: mssa@mtssa.org
    Sent: Saturday, July 11, 2009 11:11 AM
    Subject: Oath of office

    Dear MSSA Friends,

    All persons elected to office in Montana must have taken, subscribed (signed under penalty of perjury) and filed (usually with the county clerk) an oath of office to defend the U.S. and Montana constitutions.

    Article III, Section 3 of the Montana Constitution requires:

    "Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: 'I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).' No other oath, declaration, or test shall be required as a qualification for any office or
    public trust."

    Those of you interested in good government in Montana should check with the county clerk to confirm that ALL elected officials, appointed officials, peace officers and others have taken, subscribed and filed the required oath of office. If any of these official have not done all three, they cannot hold office - they have not officially assumed their office and their office is vacant.

    This applies to county commissioners, sheriffs, county attorneys, city council members, legislators and everyone else elected to office. It applies to all appointed offices, and to all Montana peace officers. These officials cannot be held to compliance with their oath (to defend the constitutions) unless they have taken, signed and filed the oath.

    Pasted below are some Montana statutes and some Montana court cases about this, if you want more detailed information.

    Feel free to redistribute this email to interested friends. Do check to see if all local officials have taken, signed and filed the required oath of office. If they haven't, they're imposters. Moreover, every supposedly official act they have done before their oath was taken, signed and filed is void.

    Check it out.

    Best wishes,

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

    ============================
    Montana statutes:

    1-6-101. Officers who may administer oaths. Every court, judge, clerk of any court, justice, notary public, and officer or person authorized to take testimony in any action or proceeding or to decide upon evidence has power to administer oaths or affirmations.

    1-6-102. Form of ordinary oath. An oath or affirmation in an action or proceeding may be administered as follows: the person who swears or affirms expressing his assent when addressed in the following form, "You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter), pending between .... and ...., shall be the truth, the whole truth, and nothing but the truth, so help you God".

    1-6-103. Variation of oath to suit witness's belief. The court shall vary the mode of swearing or affirming to accord with the witness's beliefs whenever it is satisfied that the witness has a distinct mode of swearing or affirming.

    1-6-104. Affirmation or declaration in lieu of oath. Any person who desires it may, at his option, instead of taking an oath make his solemn affirmation or declaration by assenting when addressed in the following form: "You do solemnly affirm (or declare), etc.", as in 1-6-102.

    2-16-211. Oaths -- form -- before whom -- when. (1) Members of the legislature and all officers, executive, ministerial, or judicial, must, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support, protect, and defend the constitution of the United States and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."
    (2) No other oath, declaration, or test must be required as a qualification for any office or public trust.
    (3) Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths.

    Case Notes: Operation and Effect: This section does not make filing of oath of office a condition precedent to entering upon discharge of duties of office, but 2-16-501 declares that, if officer fails to file his official oath within the time prescribed, the office becomes vacant. State ex rel. Muzzy v. Uotila & Certain Intoxicating Liquors, 71 M 351, 229 P 724 (1924).

    2-16-212. Filing. (1) Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed, and filed within 30 days after the officer has notice of his election or appointment or before the expiration of 15 days from the commencement of his term of office when no such notice has been given.
    (2) Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially provided, as follows:
    (a) the oath of all officers whose authority is not limited to any particular county, in the office of the secretary of state;
    (b) the oath of all officers, elected or appointed for any county and of all officers whose duties are local or whose residence in any particular county is prescribed by law and of the clerks of the district courts, in the offices of the clerks of the respective counties.

    2-16-501. Vacancies created. An office becomes vacant on the happening of any one of the following events before the expiration of the term of the incumbent:
    (1) the death of the incumbent;
    (2) a determination pursuant to Title 53, chapter 21, part 1, that the incumbent suffers from a mental disorder and is in need of commitment;
    (3) resignation of the incumbent;
    (4) removal of the incumbent from office;
    (5) the incumbent's ceasing to be a resident of the state or, if the office is local, of the district, city, county, town, or township for which the incumbent was chosen or appointed or within which the duties of the incumbent's office are required to be discharged;
    (6) except as provided in 10-1-1008, absence of the incumbent from the state, without the permission of the legislature, beyond the period allowed by law;
    (7) the incumbent's ceasing to discharge the duty of the incumbent's office for the period of 3 consecutive months, except when prevented by sickness, when absent from the state by permission of the legislature, or as provided in 10-1-1008;
    (8) conviction of the incumbent of a felony or of an offense involving moral turpitude or a violation of the incumbent's official duties;
    (9) the incumbent's refusal or neglect to file the incumbent's official oath or bond within the time prescribed;
    (10) the decision of a competent tribunal declaring void the incumbent's election or appointment.

    3-5-201. Election and oath of office. (1) The judges of the district court, except judges pro tempore, must be elected by the qualified voters of the district.
    (2) Except as provided in subsection (1), each judge of a district court must, as soon as he has taken and subscribed his official oath, file the same in the office of the secretary of state.

    3-10-202. Oath -- proof of certification. (1) Each justice of the peace, elected or appointed, after he has received his certificate of election or appointment, shall, before entering upon the duties of his office, take the constitutional oath of office, which must be filed with the county clerk.
    (2) Before the county clerk may file the oath, the elected or appointed justice must satisfy the clerk that he is certified as provided in 3-1-1502 or 3-1-1503.

    5-2-212. Organization of senate. At 12 noon on the day appointed for the meeting of any regular session of the legislature, the senior member present must take the chair, call the senators and senators-elect to order, call over the senators from the certified roster prepared by the secretary of state, and then, from the certified roster prepared by the secretary of state, call over the senatorial districts and counties, in their order, from which members have been elected at the preceding election. After the same are called the members-elect must take the constitutional oath of office and assume their seats. The senate may thereupon, if a quorum is present, proceed to elect its officers.

    5-2-213. Organization of house of representatives. At the time specified in 5-2-212, the secretary of state, or in case of his absence or inability then the senior member-elect present, must take the chair, call the members-elect of the house of representatives to order, and then, from the certified roster prepared by the secretary of state, call over the roll of counties and districts. After the same are called the members-elect must take the constitutional oath of office and assume their seats. The house of representatives may thereupon, if a quorum is present, proceed to elect its officers.

    7-1-4137. Oath of office. (1) Every elected and appointed municipal officer shall take the oath of office prescribed in Article III, section 3, of the Montana constitution. Before the officer performs any official duties, the oath of office, certified by the official before whom the oath was taken, must be filed. An elected officer shall file the oath with the county election administrator. Except as provided in subsection (2), an appointed officer shall file the oath with the city clerk.
    (2) A person appointed to fill a vacancy in an elected municipal office shall file the oath of office with the county election administrator.

    7-3-4217. Oath of office and official bond. Every person who has been declared elected mayor or councilman shall, within 10 days thereafter, take and file with the city clerk an oath of office in the form and manner provided by law and shall execute and give sufficient bond to the municipal corporation in the sum of $10,000, conditioned for the faithful performance of the duties of the office. This bond shall be approved by the judge of the district court of the county in which such city is situated and filed with the clerk and recorder of the county in which such city is situated.

    7-4-101. Filing of oath of office. Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially provided, as follows:
    (1) in the office of the secretary of state for all officers whose authority is not limited to any particular county;
    (2) in the office of the clerk of the respective county for all elected or appointed officers for any county, all officers whose duties are local or whose residence in any particular county is prescribed by law, and the clerks of the district courts.

    7-4-2205. Term of office -- oath. (1) Each person elected to an office named in 7-4-2203 holds the office for the term of 4 years and until a successor is elected and qualified.
    (2) A person appointed to any of the different offices serves at the pleasure of the commissioners.
    (3) Each officer who is mentioned in this part and who is elected to office shall:
    (a) take the oath of office on the last business day of December following the officer's election; and
    (b) take office at 12:01 a.m. on January 1 following the officer's election.

    7-32-303. Peace officer employment, education, and certification standards -- suspension or revocation -- penalty. (1) For purposes of this section, unless the context clearly indicates otherwise, "peace officer" means a deputy sheriff, undersheriff, police officer, highway patrol officer, fish and game warden, park ranger, campus security officer, or airport police officer.
    (2) No sheriff of a county, mayor of a city, board, commission, or other person authorized by law to appoint peace officers in this state shall appoint any person as a peace officer who does not meet the following qualifications plus any additional qualifying standards for employment promulgated by the board of crime control:
    (a) be a citizen of the United States;
    (b) be at least 18 years of age;
    (c) be fingerprinted and a search made of the local, state, and national fingerprint files to disclose any criminal record;
    (d) not have been convicted of a crime for which the person could have been imprisoned in a federal or state penitentiary;
    (e) be of good moral character, as determined by a thorough background investigation;
    (f) be a high school graduate or have passed the general education development test and have been issued an equivalency certificate by the superintendent of public instruction or by an appropriate issuing agency of another state or of the federal government;
    (g) be examined by a licensed physician, who is not the applicant's personal physician, appointed by the employing authority to determine if the applicant is free from any mental or physical condition that might adversely affect performance by the applicant of the duties of a peace officer;
    (h) successfully complete an oral examination conducted by the appointing authority or its designated representative to demonstrate the possession of communication skills, temperament, motivation, and other characteristics necessary to the accomplishment of the duties and functions of a peace officer; and
    (i) possess or be eligible for a valid Montana driver's license.
    (3) At the time of appointment a peace officer shall take a formal oath of office.
    (4) Within 10 days of the appointment, termination, resignation, or death of any peace officer, written notice thereof must be given to the board of crime control by the employing authority.
    (5) (a) Except as provided in subsections (5)(b) and (5)(c), it is the duty of an appointing authority to cause each peace officer appointed under its authority to attend and successfully complete, within 1 year of the initial appointment, an appropriate peace officer basic course certified by the board of crime control. Any peace officer appointed after September 30, 1983, who fails to meet the minimum requirements as set forth in subsection (2) or who fails to complete the basic course as required by this subsection (a) forfeits the position, authority, and arrest powers accorded a peace officer in this state.
    (b) A peace officer who has been issued a basic certificate by the board of crime control and whose last date of employment as a peace officer was less than 36 months prior to the date of the person's present appointment as a peace officer is not required to fulfill the basic educational requirements of subsection (5)(a). If the peace officer's last date of employment as a peace officer was 36 or more but less than 60 months prior to the date of present employment as a peace officer, the peace officer may satisfy the basic educational requirements as set forth in subsection (5)(c).
    (c) A peace officer under the provisions of subsection (5)(b) or a peace officer who has completed a basic peace officer's course in another state and whose last date of employment as a peace officer was less than 60 months prior to the date of present appointment as a peace officer may, within 1 year of the peace officer's present employment or initial appointment as a peace officer within this state, satisfy the basic educational requirements by successfully passing a basic equivalency test administered by the Montana law enforcement academy and successfully completing a legal training course conducted by the academy. If the peace officer fails the basic equivalency test, the peace officer shall complete the basic course within 120 days of the date of the test.
    (6) The board of crime control may extend the 1-year time requirements of subsections (5)(a) and (5)(c) upon the written application of the peace officer and the appointing authority of the officer. The application must explain the circumstances that make the extension necessary. Factors that the board may consider in granting or denying the extension include but are not limited to illness of the peace officer or a member of the peace officer's immediate family, absence of reasonable access to the basic course or the legal training course, and an unreasonable shortage of personnel within the department. The board may not grant an extension to exceed 180 days.
    (7) A peace officer who has successfully met the employment standards and qualifications and the educational requirements of this section and who has completed a 1-year probationary term of employment must, upon application to the board of crime control, be issued a basic certificate by the board, certifying that the peace officer has met all the basic qualifying peace officer standards of this state.
    (8) It is unlawful for a person whose certification as a peace officer, detention officer, or detention center administrator has been revoked or suspended by the board of crime control to act as a peace officer, detention officer, or detention center administrator. A person convicted of violating this subsection is guilty of a misdemeanor, punishable by a term of imprisonment not to exceed 6 months in the county jail or by a fine not to exceed $500, or both.

    Court decisions:

    Substitute Justice of the Peace Not Duly Authorized or Properly Called -- Search Warrants Invalid: A Justice of the Peace submitted a written waiver request form for proposing substitute Justices of the Peace but failed to create a list of proposed substitutes as required in 3-10-231. One of the designated substitutes took the judicial oath of office, but not in the form required by this section. The substitute justice was called by a Deputy Sheriff, who requested warrants allowing a search of defendant's property. The warrants were issued and executed, but the warrants were challenged by defendants on the grounds that the warrants were not issued by a properly authorized substitute justice. The state argued that the authorization and call-in of the substitute justice were in substantial compliance with the law and that any technical errors in the procedures should not operate to suppress evidence. Applying Potter v. District Court, 266 M 384, 880 P2d 1319 (1994), the Supreme Court held that substantial compliance was insufficient. The procedure used in authorizing the substitute justice with a variant form of the constitutional oath of office was a major discrepancy in the authorization process, and the procedure of providing law enforcement with a menu of substitutes from which to choose clearly violated Potter. The substitute Justice of the Peace was not duly authorized, thus the warrants issued by the substitute were void ab initio. St. v. Vickers, 1998 MT 201, 290 M 356, 964 P2d 756, 55 St. Rep. 859 (1998), distinguishing U.S. v. Leon, 468 US 897, 82 L Ed 2d 677, 104 S Ct 3405 (1984).

    "Civil Office" Defined: The words "civil office" as used in Art. V, sec. 7, 1889 Mont. Const., in providing that no Senator or Representative shall, during the term for which elected, be appointed to any civil office, mean any public office not of a military character. State ex rel. Barney v. Hawkins, 79 M 506, 257 P 411 (1927).
    To make any position of employment a public office of a civil nature, it must be created by the state Constitution or by the Legislature or created by a municipality pursuant to authority delegated to it; it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the Legislature or through legislative authority. The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the control of a superior office or body. It must have permanency and continuity, and the incumbent must take and file an oath, hold a commission, and give an official bond, if required by proper authority. State ex rel. Barney v. Hawkins, 79 M 506, 257 P 411 (1927). See also State ex rel. Nagle v. Page, 98 M 14, 37 P2d 575 (1934).

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