GOP Leaders Caught Trying to Keep Constitutional Problems with Bills Secret, Dems Call Foul

On Friday morning at 7am, democrats in the legislature succeeded in forcing GOP leadership to reverse their edict that legal memos detailing constitutional problems with bills be removed from the public LAWS website.

In 2013, the MT legislature, through its official Legislative Council made a bi-partisan decision to make the legal review notes created by legislative staff and attorneys public documents.  Every bill undergoes a legal review, and if there are potential problems with the US or federal constitution and other major case laws there was a memo created and those documents were public.

But in 2015, the GOP leadership of the legislature directed its staff to take those documents–and any references to them in the LAWS system–down from the website .   Instead, the GOPers told their staff to keep them in the offices of the legislative staff where most citizens will never see them, and even require members of the public to sign them out when they ask to see the public documents so that the GOP leaders could know who was looking for them. The GOP is very “pro-privacy” when it comes to themselves, but when it comes to what you do, they must know, you see.

Thes Republicans apparently don’t want the public–or the press–to know if their bills have constitutional problems.  This is counter to democracy and good government.

Even legislative staff noted that they had been asked if there were legal review notes in committees, only to have GOP leadership get angry that the staff had answered honestly that such a note exists.  Rep. Essmann (R-TEA Billings) expressed his personal belief that if a law was passed by the legislature, it simply  was constitutional just because the legislature passed it, until a court challenged the law.

Anyway you can see why democrats complained that the notes had been hidden and removed from the website, and the legislative council on Friday morning, January 30, passed a motion to reiterate that the documents needed to be public again – as the legislative council had already affirmed –  with some additional language clarifying for legislators what legal review means.  Sen. Session also asked that the GOP leaders in the future not make unilateral decisions, but take them to the legislative council, which is the process set up for managing legislative staff.  The change was made Friday am as part of a Legislative Council committee meeting.




9 Comments on "GOP Leaders Caught Trying to Keep Constitutional Problems with Bills Secret, Dems Call Foul"

  1. Hiding the legal review, or making it unreasonably difficult to obtain, is the kind of behavior I expect from people bent on engineering a coup d’etat. Here, I hope, the real excuse for this behavior is not concealing planning for a putsch, but from knowledge that the bills are unconstitutional and that there are no good arguments to refute the legal review.

    Of course, just as censoring a book is a good way to boost its sales, trying to conceal a legal review is a good way to call attention to it.

  2. Dear Cowgirl,
    The line, “Rep. Essmann even expressed his belief that if a law was passed by the legislature, (it was constitutional just because until a court challenged the law,”) is interesting to note. This phrasing was used by then State Senator Greg ‘Spearchucker’ Hinkle at a candidate forum in Hot Springs, in October 2012, while he was there mentoring candidate Jennifer Fielder. Seems this must be the party’s standard phrasing for anything that has a legal note attached expressing concerns about constitutionality.
    Last session, 42 legal review notes appeared on proposed bills. To be fair, 6 of those notes were attached to bills introduced by the executive branch. Of the 42, 15 passed, with 4 being vetoed by Governor Bullock.

    John Marshall

  3. Time to SUE GOP legislative leaders to violation public’s RIGHT to know and participate, give ’em a taste
    of their own medicine. I thought GOP was also about transparency, integrity and always ‘croaking’ Constitutional ‘Ritezzzzz’………….

  4. How can one find the legal memos? I’m trying to see if any pertain to HB212.

    • Go to$.startup?P_SESS=20151, enter the bill’s type and number, hit find or return. That takes you to the bill’s page (you may have done this already). If the legal review is posted on the website, you’ll find it at the top left. Otherwise, you can ask the bill’s sponsor and others to send it to you. You have a right to see it.

      The part of the MT Constitution targeted by HB-212 is:

      Article IX, Section 7. Preservation of harvest heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.

      History: En. Sec. 1, Const. Amend. No. 41, approved Nov. 2, 2004.

      I think HB-212 is a constitutional stretch and would be vulnerable to a legal challenge.

      Democrats Rae Peppers, Kelly McCarthy, and Zac Perry voted for HB-212 on the 2nd reading. The 3rd reading is today.

      As for trapping, it’s a cruel, morally repugnant, economically unnecessary activity that should be outlawed.

  5. Old Line Democrat | February 3, 2015 2:46 PM at 2:46 PM |

    Unfortunately, Rep. Essman’s assessment is accurate. Statutory provisions can be enacted and continue on the books until they are challenged on a constitutional or other basis. This of course forces someone who has standing to follow the process and get a resolution. The recent election for Supreme Court Justice shows the hard right’s intent to cook the books on every side this is particularly troublesome in that the Supreme Court generally has the final say.

    What is really disturbing about the events related in Cowgirl’s post is the fact that when these legislators are alerted to the questionable constitutionality of their legislation by people trained to make such determinations they want to hide the fact that they are deliberately ignoring sound legal advice.

    It is indeed a sad commentary when public service has fallen from statesmen to politicians to the ideologues who seem to be running our Legislature.


    On a side note, didn’t Steve Daines say he only voted once to repeal ObamaCare during his term in office? yet this article talks about 56 prior votes with number 57 on the way. Was Daines absent those other 55 times, or simply a no show.

    • On a side, side note – Does anyone know how much it costs the tax payers each time these “fiscal conservatives” push one of these dead end bills through the house?

Comments are closed.