Legal reviews are important to legislation

Sunday, February 10, 2019
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Montana Viewpoint

The Republican controlled Montana Legislature is changing its rules in order to forbid the posting of “legal reviews” on the Legislature’s website. This is good news for Representative 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 were notes attached to bills that pointed out that 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 has to 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 there 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 think that the courts misinterpret the law, and that it’s up to the legislature to make sure the judges toe the line the legislators think they have drawn. To that end, a lot of laws are proposed that fly right in the face of established law, but law makers 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 (Marbury v. Madison).

Doing away with legal notes 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 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 themwould let the sponsor know if the bill proposes to do something that is 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 in spite of 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 that 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, either before legal notes, or during legal notes.

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 sixteen 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.