Legislature’s decision to hide legal notes keeps public in the dark

Thursday, February 7, 2019

The Republican-controlled Montana Legislature is changing its rules to forbid the public posting of “legal reviews” on the Legislature’s website. This is good news for Rep. Greg DeVries, R-Jefferson City, who has introduced a bill to abolish Montana’s compulsory education requirement. (Where was this guy when I was in grammar school?)

Legal reviews are notes attached to bills that show there might be a good chance that a bill might, say, violate the Montana Constitution if it became law. DeVries’ bill (HB 303) might fly in the face of Montana’s constitutional requirement to provide “a quality education for all,” but then I guess that all the state must do is provide the education, it doesn’t have to be used.

DeVries’ silly idea aside, forbidding publication of legal reviews is equally silly. Why would you not want people to know if a bill might be unconstitutional? Well, of course, only if you didn’t like the criticism.

Imagine a bill banning firearms. Don’t you think that would be a violation of Montana’s constitutional right to bear arms, let alone the Second Amendment? Of course, most people don’t need a legal note to be told that, but there are many other less obvious issues that people would need to be told about; hence the legal reviews.

You don’t have to be around political people very long before you realize that every one of them is an expert on our state and national constitutions, and strangely enough they all manage to interpret the constitutions to suit their own ideological needs.

There are also a lot of legislators who believe the courts misinterpret the law, and that it’s up to the Legislature to make sure judges toe the line. To that end, a lot of laws are proposed that fly right in the face of established law, but lawmakers insist that they know more than the courts. To set the record straight, the ability of courts to review and rule on legislative acts was established in 1803 with Marbury v. Madison.

Hiding legal notes from the public doesn’t change the legal problems a bill might have, but it does make it harder to find out about them.

To be fair, eliminating the publication of legal notes puts the situation pretty much where it was before 2013, when there were no legal notes attached to bills.

At that time, the Chief Legal Officer for the Legislature – who reads ALL the bills to see if there might be any problems with them – would let the sponsor know if a bill proposed to do something that was unconstitutional. The sponsors, in that case, would most generally say they didn’t care what their head attorney thought and would go ahead with the bill, despite its constitutional problems.

I suspect that a legal note had no more effect on a bill’s sponsor trying to get the bill passed than just telling them it had big problems, but it might have given some legislators pause in voting for the bill.

Removing the legal notes has been decried as making the legislative process more difficult for citizens to understand, but to me the end of the world it is not, and I expect things will go on in much the same way as they did previously.

Constitutionally questionable or not, a law is considered constitutional until a court of law rules otherwise. Without legal notes there may be more challenges to laws, but significantly how many more is anyone’s guess. But the big question for me is: What does the public gain by getting rid of them?

Jim Elliott served 16 years in the Montana Legislature as a state representative and state senator and four years as chairman of the Montana Democratic Party. He lives on his ranch in Trout Creek. Montana Viewpoint appears in weekly papers across Montana and online at missoulacurrent.com .

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