Personal Sentiment V The Constitution

Personal Sentiment V The Constitution

At the tail end of the session, two contentious bills made their way to the Senate floor; HB 549 by Rep. Fred Anderson and HB 562 by Rep. Sue Vinton. Rep. Vinton represents Lockwood which is the other half of my Senate District.

Both bills created new law for charter schools. Both bills carried legal notes deeming them unconstitutional.

Anderson unsuccessfully tried to correct the deficiencies. Vinton argued the point so her bill also remains unconstitutional.

The Montana Constitution is clear. Article 10 Sec 8 "The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law." Anderson amended his bill by adding "elected by the qualified electors of the community where the charter school is located."

Anderson's remaining problem is that he defines the charter school district as only the school grounds.

Nobody lives there.

Who can vote and who can serve in this hybrid model of a public school was not provided in his bill.

Majority Leader Vinton's argument failed before getting out of the gate. Her argument was that as "provided by law" meant that the legislature could override the "elected" part and just appoint the board for a three- year term before they are elected.

Floor sponsor, Rep. Bogner, repeated this gibberish during floor debate. Elected means elected. For the appointed school board to take their seats would be a constitutional violation on day one.

Rep. Vinton's and Anderson's bills also violate Art 14 Sec 1 of the U.S. Constitution.

So, this would be a federal case and Montana taxpayers will have to pay the legal fees of any challenger.

Taxation without representation lit the fuse that became the American Revolution. We never got over it.

Before we can get to the structure of the bill we have to have a constitutional bill or all we have, and should have, is scrap paper in the Supreme Court's circular file.

Majority Leader Fitzpatrick said, "Never mind the constitutionality. The Governor wants these two bills on his desk. Throw the constitutional questions to the courts." Several people favoring "school choice" (As do I. Always have.) stopped by my office to tell me constitutionality was not my concern. It was up to the courts. After all, they reversed with Espinoza.

As I walked in the Senate chamber to vote on the issue Henry Kriegel, legislative liaison for Americans for Prosperity, also told me the constitutionality of HB 549 or HB 562 was not my concern.

During debate I pointed out the constitutional challenges of 549 and 562 outlined in the legal note. After I spoke, Sen. Fuller, Kalispell admonished that "too many of us think they wear a black robe. We should throw this issue to the courts and just pass good policy". According to my inbox many school choice advocates agree with Fuller and Kriegel. According to the vote count, so do a bare majority of legislators.

This does not mesh with our oath of office; Montana Constitution Art 3. Sec 3, "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."

This oath is taken in public, recorded on video, and signed before the session begins. No mention of 'unless you like the policy" so then throw a Hail Mary to the courts.

Governor Gianforte asked the legislature to pass these unconstitutional bills so he can have a conservative sound bite. Shame on him. He now has them. Let's see if he can make them pass constitutional muster. It would take about 20 minutes.

There is no such thing as good policy that is unconstitutional. The diminishment of the constitutional rights of the minority or majority by legislative fiat simply asks who is next.

Senator Brad Molnar

SD 24

Laurel, MT


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