(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Bill aims to give Montana Legislature standing in court fights over laws – Daily Montanan [1] ['Blair Miller', 'More From Author', '- February'] Date: 2023-02-21 Two bills heard Tuesday in the House Judiciary Committee aim to give the Montana Legislature, and individual legislators, options to defend their laws in court, while another sought to implement a public comment period if the state attorney general wants to get involved in litigation. The first two bills – House Bills 518 and 512 – are sponsored by Rep. Bill Mercer, R-Billings. The latter, House Bill 532, is sponsored by Rep. Ed Stafman, D-Bozeman. While no one testified in favor or against either of Mercer’s bills Tuesday, he said both would help enforce the laws the legislature makes. If they are tied up in court over questions of their constitutionality or legality, it would allow lawmakers most involved in writing and passing the laws to weigh in during court proceedings, he said. “This bill stands for … the fairly simple proposition that the legislature should not be a potted plant,” Mercer told the committee of his HB518. “It should not be an entity that says, ‘We put something on the books, the governor agreed with it, it’s part of our statutory structure, and we’re powerless to do anything to make sure there is compliance.’” HB 518 would allow the legislature the right to sue or defend a law if its constitutionality has been challenged in court or if it is not being enacted or implemented. The bill would also allow the legislature to be an injured party if legislation isn’t implemented under certain conditions. Under the bill as introduced, if the legislature wanted to get involved in litigation as a full body, it would have to first send a notice to whoever is supposed to execute or implement a law. During a legislative session, a majority of both chambers would have to approve a resolution to take legal action. If the legislature is not in session, at least 20 lawmakers would have to ask the secretary of state to poll the legislature to see if a majority of both chambers wanted to move to litigation. “We want to be able to confer with the executive. But at the end of the day, we want to make sure that if we’re not getting compliance, that we have the ability to try to compel it,” Mercer told the Daily Montanan in a brief interview. During the hearing, Mercer gave the committee an example of a bill from 2003 that required the Department of Public Health and Human Services to come up with a strategic plan and associated performance measures. But he said in the years since it was signed into law, the measure was largely ignored by the executive branch. The department came up with a strategic plan in 2019, but Mercer said the department had never come up with the performance measures. He said giving the legislature standing, as his bill would do, would allow it to use the courts to enforce the laws it passes that the executive might ignore. “It strikes me as really problematic when something gets codified and it isn’t implemented, it isn’t enforced, and there’s no compliance with what it was the legislature agreed on,” Mercer told the committee. Rep. Laurie Bishop, D-Livingston, said Mercer’s focus on the enforcement of laws passed by the legislature was only a slice of what the bill aims to do, however, and pointed to the section that said the legislature would have standing to sue or defend its law if “a challenge to the constitutionality of legislation enacted by the legislature is at issue in a lawsuit,” as the bill states. Typically, Montana’s attorney general defends laws signed by the governor that see constitutional challenges. Mercer told the committee his bill would say the legislature would have standing in those cases as well. Currently, more than 20 laws passed during the 2021 legislature have been challenged in court — some over constitutional conformity, including one that limited transgender Montanan’s ability to change the gender marker on their birth certificates. Pressed by Bishop over the costs of attorneys in such actions, Mercer said he believed that perhaps counsel for the legislature would take the cases pro bono, the legality of which Bishop questioned. A legal review note attached to the bill said giving the legislature standing could conflict with a U.S. Supreme Court ruling that defined when a legislature as a whole could suffer injury. The legal review also found the bill could have conformity issues with the separation of powers in the Montana Constitution, which says the governor “shall see that the laws are faithfully executed.” Another Mercer bill would let sponsors, cosponsors intervene in litigation Mercer’s second bill heard in the committee Tuesday, House Bill 512, would allow individual lawmakers – current or past – to intervene in pending litigation tied to bills they sponsored or cosponsored in the past. He said allowing that to happen would give those lawmakers who closely worked on the bill the ability to have a say on the laws in court, and provide more information about the intent of lawmakers as a measure made its way through the House and Senate. Mercer told the committee the bill was aimed at a theoretical time in the future where an attorney general tasked with defending the law might not be of the same mindset of the lawmakers and might not be “as aggressive” in telling the court the intent of lawmakers who passed it. He said it would not supersede the attorney general representing the state of Montana in any litigation. Rather, it would allow the state legislator to share expertise. “‘I know this really well; I’ve lived this. I know what was said in committee; I know why certain language was picked, and I want to be in the case so I can make sure that my perspective is being met,’” Mercer said. A similar bill from Sen. Steve Fitzpatrick, R-Great Falls, Senate Bill 278, would allow the primary sponsor of a bill to intervene in litigation. It passed the Senate Judiciary Committee unanimously last week. Bill calling for public comment on AG litigation tabled The final bill heard Tuesday in the House Judiciary Committee was Stafman’s House Bill 532. It was tabled during executive action on a party-line vote. It sought to require the attorney general to post a notice of intent to engage in litigation in the interest of the state — like when Montana joins a federal lawsuit with other states or sues a city, as the state did last week when it sued Portland, Ore., over a fossil fuel transportation policy — five days before taking action. Additionally, the bill would have required the Department of Justice to accept public comment and hold a public hearing before engaging in any litigation in the interest of the state. Stafman said it was only fair because law- and rulemaking – each have to go through public comment periods, but the Attorney General’s Office is exempt from doing so when filing or joining lawsuits. He pointed to the request from the department for more than $2 million for litigation costs in this year’s budget. “We don’t have any checks on that. We just get the bill. If we don’t like it, we still have to pay,” Stafman said. “This requires [the attorney general to] provide information so we and taxpayers know our money is being well-spent.” Two DOJ employees testified against the bill, saying the timeframes provided in the bill were “unworkable,” that it could delay timely litigation, and that some public hearings could infringe on attorney-client privilege. “All of our decisions to enter in this litigation are a matter of public record,” said Deputy Solicitor General Brent Mead. “The people obviously can have views on our stances in that litigation. And that’s why we have elections.” The committee voted 13-6 to table the bill Tuesday during executive action. It did not take action on Mercer’s two bills. [END] --- [1] Url: https://dailymontanan.com/2023/02/21/bill-aims-to-give-montana-legislature-standing-in-court-fights-over-laws/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/