9 December 2020 — 1805 mst

Guest post

Responsible Conduct: A Constitutional Imperative

By James C. Nelson
Montana Supreme Court Justice (Ret.)

Montana’s Constitution guarantees each of us a number important rights. Among those are the right to: pursue safety and health in all lawful ways and to a clean and healthful environment (Article II, sec. 3); to peaceably assemble and petition for redress or peaceably protest governmental action (Article II, sec 6); to free speech and press (Article II, sec. 7); to participate in government (Article II, sec. 8); and to observe the deliberations of all public bodies (Article II, sec. 9).

With those constitutional rights in mind, it is dismaying, to say the least, to open the newspaper or watch the local evening news and to observe a vast majority of our legislators congregating without any regard for the common sense and scientifically based requests and recommendations of our public health agencies and our private health care providers to: wear face coverings, physically distance, and use opportunities for virtual meetings.

Certainly, we all recognize the Legislature must meet in some fashion every two years to discharge its constitutional duties under, among others, Articles 5, 8, 9, 10 and 12.

That said, however, there is absolutely no mandate or prohibition in our Constitution that requires legislators to discharge their duties in derogation of the equally important rights of we the people—who, incidentally, are, as a matter of law, the very source of all political power in this State (Article II, sec 1).

To this point, many Montanans may wish to attend legislative committee hearings and to testify in person; many may wish to sit in the galleries and observe the debates and deliberations of their elected senators, representatives and of the public officials and witness who testify; many may wish to speak with their elected legislators in person at the Capitol; and many will have traveled long distances to Helena to exercise these rights of Montana citizenship. And, of course, many persons will be at the Capitol as lobbyist representing business and special interests. Certainly, the press will want to cover the session.

In short, many Montanans may desire — in truth, demand — to be able to exercise their constitutional rights referred to in the first paragraph under the safest conditions possible, given that our Country and State are in the midst of global pandemic which is completely out of control. As I write this, tens of thousands of Montanans have been sickened with the novel corona virus and hundreds of our fellow citizens have died from it. Sadly, the numbers keep climbing each day.

With the vast majority of legislators blatantly ignoring face covering, distancing, and congregating rules, to say that the Capitol building will become a covid-petri dish, is a gross understatement. Every day the Legislature meets will be a super-spreader event—imposed not only upon those in the Capitol complex, but also on Helena’s health care facilities, front line responders, and general populace.

Montana citizens — we the people—who desire or need to exercise our constitutional rights, while protecting our own health and safety and that of our families, will be effectively shut out of that opportunity by the irresponsible—indeed, shameful—conduct of the very people who swore an oath to support, protect and defend the Constitution of the State of Montana (Article III, sec. 3) and our rights.

So, is it really too much to ask our legislators to act in a socially responsible manner; to wear face coverings, to physically distance, and to use virtual meetings when possible? I, for one, hope not.

In fact, if you look at Montana’s Constitution, it is an imperative that they do so.