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HELENA — On Jan. 25, 2019, the Montana Senate passed joint rules on a party-line vote. With 29 Republicans in favor of the measure, and 18 Democrats opposed, (three lawmakers were excused) the joint rules now head to the House.
One of those rules, which came in the form of an amendment by Sen. Keith Regier, R-Kalispell, limits public disclosure by prohibiting the Legislature’s legal staff from posting legal review notes on the state LAWS website.
The LAWS database is how lawmakers and the public can track every action on a bill as it makes its way through the legislative process. The legal review notes — which are rarely drafted — have in the past been disclosed on that website.
The notes are included in what’s known as a “junque file,” which is a file that legislative staff refer to when writing and reviewing legislation. Junque files typically contain notes from the lawmaker who is requesting the bill, as well as suggestions and input from lobbyists, other lawmakers, legal staff, etc.
The Legislative Services Division is required by law to conduct a legal review of all bill drafts prior to the bill being introduced. As part of that review, lawyers for the Legislature examine each bill for constitutional conformity issues. In other words, lawyers comb through bills to see if proposed legislation may be impacted by U.S. or Montana Supreme Court rulings.
The legal review process has no impact on a bill’s ability to move through the Legislature. It only provides lawmakers with information about potential legal challenges a bill might face in the future if the bill becomes law. Legal review notes are attached to the bill and posted on the LAWS website only if the bill is introduced.
Legal review notes are rare:
- In 2017, 22 of the 1,188 bills that were introduced during the regular session had legal review notes attached.
- In 2015, 25 bills of the 1,187 bills introduced had a legal review note attached.
- And in 2013, 43 bills out of a total 1,201 were flagged for possible constitutional issues by legislative attorneys.
Just 2.5 percent of bills introduced over the past three regular legislative sessions had legal review notes attached and posted to LAWS.
In a 2015 memo prepared for the Legislative Council, the Legislature’s Chief Legal Counsel and Code Commissioner, Todd Everts, provided some history of the current legal review note process:
Before the 2013 Session, the constitutional conformity notations in the junque file by the legal director did not necessarily have any analysis attached to provide justification for the notation. They were based on the legal director’s professional legal training and judgment. After the fact, especially for controversial bills, the legal director would get requests from legislators on all sides to provide both oral and written legal opinions regarding whether a particular bill raised any constitutional conformity issues. These after-the-fact legal opinion requests increased in frequency as term limits impacted the Legislature and took up a lot of the legal director’s time and resources.
Starting in the 2009 Session and coming to a head during the 2011 Session, the junque files for controversial bills were copied by interested parties from all sides and were raised both in the session standing committee hearings and debates and in the Committee of the Whole debates regarding whether a particular bill did or did not have any particular constitutional conformity issue associated with it. The junque files had notations from the requestor, constituent working with the requestor, the bill drafter, and the legal director, and those notations weren’t always consistent. Based on longstanding practice, the legal review notations weren’t necessarily always justified by documented legal analysis. This created confusion and justifiable consternation on the part of legislators and put legislative staff in an untenable position.
In the interim session following the 2011 regular session, the Legislative Council, which is the bipartisan committee that oversees the Legislative Services Division staff, instructed its lawyers to come up with a more transparent, consistent, and formalized system for producing legal review notes.
The result, patterned after the Utah Legislature’s legal review, was the legal review process we have today, which is triggered only when a proposed bill may have potential constitutional conformity issues because:
- The bill as drafted may directly conflict with the plain language requirements of the Montana Constitution or the U.S. Constitution or federal law; and/or
- Montana Supreme Court or federal court case law specifically addresses a potential constitutional conformity issue raised by the bill as drafted.
MTFP believes these legal review notes serve an important purpose by giving legislators, and the public, a heads-up that a bill may have constitutional issues. Removing the legal review notes from the Legislature’s website limits transparency and public access. The notes continue to be a matter of public record and, as such, reporters at the Capitol will continue to have access to them.
In the interest of maintaining public access to important legislative records, MTFP will request and post all legislative review notes on introduced bills as we receive them throughout the session.
Both measures currently have legal review notes available on the LAWS website, but if the joint rules passed by the Senate on Thursday are approved by the House, then legal review notes will no longer be available on the state’s website.