Letter To The Editor: Elections
Author: Tom Budewitz
Elections
Dear Editor:
Several weeks ago, the MT43 published a letter from my friend Ed Regan in which he suggested that we should not support a former federal judge who is a candidate for chief justice of the Montana Supreme Court because, according to Ed, the judge is “clearly political.” No evidence was cited in support of that conclusion. Oddly, in telling us that politics should not be involved in an election to this non-partisan judicial position, he identifies himself as chairman of the Broadwater County Republicans. Ed should follow his own advice.
More recently, Angie Paulsen, identifying herself as Broadwater County Clerk and Recorder, Elections Administrator and County Surveyor, told us the Supreme Court should stick to its knitting, leave legislation alone and seemingly endorses one candidate by quoting his views of the Court’s job. She is, of course, wrong. First, she should not be using her office to support any other candidate for public office. Second, if she does, she should get her facts and law straight. As she suggests, both our state and federal constitutions provide for a separation of powers among the three branches of government. That separation of powers is designed as both a check and balance on the powers of each of those branches. While the legislature has the power to enact legislation, that power is checked by the power of the Governor to veto and, as she acknowledges, the power of the judicial branch to interpret and determine the constitutionality of laws passed by the legislature. But, having first acknowledged that it has those powers she argues that it should not use them. She can’t have it both ways.
In truth, her unstated argument is really that the court should not hold as unconstitutional a law that she likes, even if the Court was correct. Or maybe she thinks the Court’s conclusion was wrong in which case I would like to see her authority for that conclusion. In many cases, the GOP caucus was warned by legislative staff that a bill was likely unconstitutional but the advice was ignored. Just this week the Court found three more bills unconstitutional, two of which the Attorney General conceded by not contesting the issue. The principle that the Supreme Court is the final arbiter of the constitutionality of both executive and legislative actions dates at least to the 1803 U.S. Supreme Court decision in Marbury v Madison in which the Federal Court held that the Constitution is law that overrides executive and legislative acts. It is the Court, not the legislature, that determines constitutionality.
Ms. Paulsen says this problem has been going on “for years now” and “it has led to endless litigation every session.” Actually, most of the litigation arising from the legislature has occurred in the last three years after the last two legislative sessions and that is for a very simple reason. For the previous sixteen years, Democratic Governors Schweitzer and Bullock used their veto power to check the most outrageous and clearly unconstitutional bills from becoming law. It has only been the last two sessions dominated by ultra-conservative ideologues and with the approval of a Republican Governor, that have generated the recent litigation. The Republican legislators appear concerned primarily with preserving their own power, preventing college students and Native Americans from voting, and regulating everyone else’s personal lives instead of real governance such as preventing dramatic increases in our property taxes.
Calling the current Court “activist” is a meaningless statement. The court should be active in the face of unconstitutional legislation. The only valid question is whether a particular case was correctly decided. Rather than criticize the court as being “activist” Ms. Paulsen should consider whether the Court was right. That she may have liked the legislation does not make it constitutional.
Sincerely,
Tom Budewitz
Former Assistant Attorney General, Former Broadwater County Attorney, retired Attorney at Law, avid flyfisherman
