MONTANA ENVIRONMENTAL INFORMATION CENTER
A Fundamental Reshaping of State Government by Derf Johnson
H
ow our government functions, and the processes and procedures for governmental decision-making, are about as dry as a saltine cracker. These issues don’t get folks nearly as excited as MEIC’s work in protecting Montana’s clean air, clean water, and wild landscapes. But procedures for making important environmental decisions, such as those required by the Montana Administrative Procedures Act, are often just as important as substantive laws. Think of the Clean Water Act, or regulations for clean air and water, or that grizzly bears have room to roam. If there is one story to note from the 2021 Legislature on the processes and procedures of government, it is the attempts by the Legislature to consolidate power in the legislative and executive branches of government, to make government regulations and functions cumbersome, to reduce citizen participation and access to government, and to make the judicial branch of government less independent. Following this session, it’s clear that those of us who care about clean air and clean water in Montana need to engage at the fundamental level of how our government functions in order to assure that the processes we operate within are not stacked against us.
The Judiciary
The fundamental doctrine establishing the separation of powers implicit in our constitution
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became a top-of-the-fold story during the session. The brawl included legislative subpoenas, protective orders, and email information requests between the Legislature, Attorney General Austin Knudsen, and the Montana Supreme Court. All of this stemmed from SB 140 (Sen. Keith Regier, R-Kalispell), which eliminated Montana’s Judicial Nomination Commission and delegated appointment powers directly to the governor. This bill — along with HB 380 (Rep. Kerri SeekinsCrowe, R-Billings) that would contingently go into effect if SB 140 is found to be unconstitutional and would dramatically increase the number of individuals who serve on the Judicial Nomination Commission (and coincidentally are appointed by the governor) — is at the centerpiece of the Legislature’s and the governor’s attempts to reshape Montana’s judiciary. In Montana, judges are elected, and the appointment process only comes into play when there is a vacancy between elections. HB 395 (Rep. Barry Usher, R-Billings) will reduce the independence of the judiciary and make it more likely to be partisan. The bill requires Supreme Court candidates to run in districts, rather than “at large.” That will have the effect of preventing qualified judicial candidates from running for the Supreme Court and will prevent Montanans from being able to vote for all of the candidates. A similar law passed in 2011 was ruled unconstitutional, and HB 395 has already been challenged. A number of bad ideas failed to pass, including a bill that would have required judges to run for office with a partisan label and a bill that would have allowed for aggrieved parties to accuse judges of malfeasance (an impeachable offense) if they were not satisfied with the ruling or order of the judge. Because of the current makeup of the
Protecting Montana’s natural environment since 1973 .
