As readers of this blog know, in the Sixties Erika Holzer and I represented author Ayn Rand.
During that time, we had occasion to sue the Hearst Corporation on her behalf (see Ayn Rand v. The Hearst Corporation, 31 A.D.2d 406, aff'd 26 N.Y.2d 806, involving unuthorized use of her name).
Other than that one state case and another that cites it, and a few federal cases that refer to Rand v. Hearst or simply mention her name, not a single reported case in the annals of American jurisprudence has relied on Ayn Rand’s ideas in support of a majority, concurring or dissenting opinion.
Until a few months ago!
Here’s how the Montana Supreme Court described what Buhmann v. State was all about.
The [parties who lost]in this case were owners and operators of alternative livestock game farms (Game Farms) within the state of Montana. The Game Farm industry is premised on the notion that individuals are willing to pay significant amounts of money to shoot captive animals, primarily elk, within the confines of a Game Farm. Since 1917, it has been lawful for individuals to own alternative livestock, such as elk, and keep them in captivity. Game Farms are heavily regulated by the Montana Department of Fish, Wildlife, and Parks (FWP) because of the threat posed by chronic wasting disease (CWD), a fatal disease of the central nervous system of captive and free-ranging animals such as mule deer, white-tailed deer, and Rocky Mountain elk. To operate a Game Farm, the owner/operator must possess an alternative Game Farm license and comply with the rigorous and extensive licensing requirements set forth in Title 87, chapter 4, part 4, MCA.
On November 7, 2000, the voters of Montana[utilizing the state’s Initiative process]passed I-143, which made two significant changes to the regulation of Game Farms in Montana. First, it prohibited fee-shooting on Game Farms in Montana. Second, I-143 prohibited licensees from transferring their alternative livestock licenses to others. These changes had a significant impact on the Game Farm industry in Montana because the vitality of the Game Farm industry was premised upon the profits derived from fee-shooting. The ban on the transfer of licenses was significant because it essentially prohibited Game Farm owners from selling those Game Farms to others, since a Game Farm could not operate without a valid license. I-143 did not, however, eliminate all uses of alternative livestock as it still permitted Game Farm operators to own herds, harvest the animals for their meat or antlers, or sell them in out-of-state markets where fee-shooting was legal.
Operators of “game farms” where helpless animals were “harvested,” like corn, sued claiming that the Initiative constituted an unconstitutional “taking” of private property without “just compensation” in violation of the Fifth Amendment of the federal Constitution and the comparable provision of the Montana constitution.
The majority upheld the Initiative.
Justice Nelson dissented.
A lower court judge—William Nels Swandal— sitting by assignment with the Montana Supreme Court joined the Nelson dissent, but added that “[b]ecause of the majority's circuitous reasoning, its disdain for private property rights, its endorsement of unprincipled and unfettered government action, which will result in the total loss of value, without compensation, of some of the property at issue, and its disavowal of the plain language of the Montana Constitution, I offer additional comments.”
Judge Swandal believed there had been taking “under both the Fifth Amendment to the United States Constitution and . . . the Montana constitution . . . .
In support of his conclusion, the judge relied on the plain language of the Montana constitution, ridiculed the majority’s “reasoning,” quoted Thomas Jefferson, and turned to Ayn Rand’s views about the nature of “property”:
Ayn Rand correctly observed that the right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II Sections 3 and 29. I invite the majority to read them. The fundamental rights to acquire, possess, and protect property are not even given lip service by this Court. Under the majority's opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. There is no serious effort to balance benefits and burdens. It may be too early to start asking, “Who is John Galt?” [FN2] but more decisions like this will seriously impact all private property and business owners in this State. [FN2]. In Ayn Rand's work Atlas Shrugged, the phrase becomes an expression of helplessness and despair at the current state of the novel's fictionalized world.
While those of us who have been influenced by Rand’s ideas are pleased to see her argument for property rights finally noted in an American judicial opinion (albeit a dissent), those of us who have concerns about the treatment of animals (a subject nowhere discussed expressly in her extensive body of writing and speeches) are not pleased to see those ideas enlisted in behalf of people whose business was the euphemistically named “fee shooting”—the practice of charging hunters to kill helpless captive animals in the name of “sport.”