The chief justice of the state Supreme Court met with legislators recently, in part to assure them that the court is never willful and always guided by the Montana Constitution. Karla Gray must not have been paying attention last winter when her court - with her concurrence - declared plain English no longer applies to the parts of the constitution guaranteeing citizens the right to know about and participate in government decision-making.
In that case, the state's high court didn't follow the Montana Constitution: It rewrote it.
n Section 8. Right of Participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.
n Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
But when a Darby School District resident and taxpayer, Bruceen Fleenor, went to court with a lawsuit challenging the district's failure to follow open-meetings requirements in the hiring of a superintendent, the Supreme Court said she had no right to object because, essentially, it was none of her business. In legal parlance, the court said Fleenor lacked “standing” - she had no right to challenge the school district because she failed to demonstrate a clear “past, present or threatened injury to a property right or a civil right Š distinguishable from the injury to the public generally.”
Take another look at the two sections above. Neither says anything about “standing.” “No person shall be deprived of the right Š ” says the exact opposite of what the court said. “The public shall have the right Š” can't possibly mean only some people have that right. The Montana Supreme Court simply invented new conditions limiting the rights of Montanans. Some people might argue that people ought to show a direct stake in matters before they're allowed to participate. But that's not what the constitution says. Besides, there's a right way to amend the constitution, and judicial fiat isn't it.
State Sen. Rick Laible, R-Victor, has introduced a bill, Senate Bill 109, seeking to fix the hole the Supreme Court punched in the Declaration of Rights. His bill says denial of the right to observe and participate in government deliberations “constitutes an injury to the citizen,” presumably an injury that will garner him or her standing in court to challenge the action.
Laible's bill is welcome but flawed by the inclusion of a clause that says the citizen must be a resident within the geographical boundaries of the government agency at issue - for instance, within a school district. Yet another re-reading of the above passages will confirm that the carefully word-smithed Montana Constitution never intended the rights to know and participate to be limited in that way - or in any way.
SB109 should be easy enough to perfect - just delete the geographic residence provision. It's just too bad in the first place that a perfect piece of legislation is needed to fix constitutional rights that didn't need fixing until the Supreme Court broke them.
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)