A reality based independent journal of steely-eyed observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

 

18 June 2022 — 1731 mdt

Has a precedent for an unconstitutional transfer of power been set?

Constitutional experts need to review how Gov. Gianforte temporarily made Lt. Gov. Juras acting governor

By James Conner

When Gov. Greg Gianforte flew to Italy last week for a long planned, and deserved, vacation, I suspect the last thing on his mind was the possible need to direct Lt. Gov. Kristen Juras to become acting governor in his absence. He would be staying in a modern, first world, nation with excellent communications. He could stay in touch with Helena by telephone, electronic mail, and video. And when major flooding damaged Montana, he did:

Scott Miller, a commissioner in Carbon County, where flooding heavily damaged the town of Red Lodge and other areas, said Friday that he had been able to contact the governor by phone when he needed to and that the state did not neglect any duties. [NBC Montana]

Then Montana’s statutes and constitution appear to have made a transfer of gubernatorial power necessary. Montana needed to ask President Biden for a federal disaster declaration (which kicks loose resources for responding to natural disasters such as fires, floods, and hurricanes). According to MCA 2-15-201 Section 3, “The governor is the sole official organ of communication between the government of this state and the government of any other state or of the United States.”

And Article VI of Montana’s constitution states:

Section 4. Duties. (1) The executive power is vested in the governor who shall see that the laws are faithfully executed. He shall have such other duties as are provided in this constitution and by law.

(2) The lieutenant governor shall perform the duties provided by law and those delegated to him by the governor. No power specifically vested in the governor by this constitution may be delegated to the lieutenant governor.

If Gianforte could not electronically sign the letter to Biden, he needed to make Juras, an attorney, acting governor so she could sign it.

As I noted yesterday, quoting a story from the Montana Free Press, on 13 June Gianforte delegated limited authority to Juras:

[Gubernatorial spokesperson Brooke] Stroyke did not provide a copy of that request when asked, but said it stated: “Lt. Gov. Juras, During my brief absence from the state you have my delegated authority to act on my behalf in response to the flooding in Montana.”

That’s pretty informal. It omits citations to the relevant sections of Montana’s constitution and the MCA. And it assumes a transfer of limited gubernatorial power is possible, a dubious proposition. It’s less a directive to become acting governor and more an instruction to perform a certain task.

Nevertheless, Juras behaved as though she had been made acting governor, probably a wise decision, for the next day she signed a Montana disaster declaration identifying herself as acting governor.

disaster_juras

And she signed, again as acting governor, Montana’s letter to Biden asking for the disaster declaration.

All’s well that ends well, but it’s best that what ends well ends well by design, not by accident. Gianforte and his administration, caught by surprise, improvised. They muddled through. It worked out. But what they did could set a precedent for an unconstitutional transfer of limited gubernatorial power.

Montana’s constitutional experts should examine what happened. Is this the first time Montana has faced this issue of power transfer, or have previous administrations examined the question and produced memoranda addressing it? Does our constitution need to be amended? Does the next legislature need to take up the question?

Yesterday, I asked an expert on constitutional law for an informal opinion on the issue. The expert noted that the acting governor provision of Montana’s constitution is similar to and based on the 25th Amendment to the U.S. Constitution, an observation also made by Elison and Snyder in The Montana State Constitution (Note 1) (2011, part of The Oxford Commentaries on the State Constitutions of the United States). The constitution’s authors probably were thinking about the need to transfer power while a governor was under a general anesthetic or in a coma resulting from an accident or an assassination attempt. They probably did not think that a governor would be in a blizzard in Antarctica, out of touch and unable to travel, during a once in a century natural disaster in Montana, or even in a villa in Tuscan, unable to physically sign a letter to his nation’s President.

In some states — California and Idaho, for example — this would not be an issue. Their constitutions automatically make their lieutenant governors acting governor when the governor leaves the state. As proved by Idaho Gov. Brad Little’s exasperations with his truculent, rebellious, and disloyal lieutenant governor, Janice McGeachin (who lost the 2022 Republican primary for governor to Little), this is not a good idea.

These are interesting and serious questions. I look forward to the answers of the experts.

Note 1. Amazon is asking for $150+ for this book. Shop around. You should be able to get it for less than $30. I did two years ago.