House bill NO. 532

INTRODUCED BY E. Stafman

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR CITIZEN PARTICIPATION IN FURTHERANCE OF ARTICLE II, SECTION 8, OF THE MONTANA CONSTITUTION WHEN THE ATTORNEY GENERAL SEEKS TO ENGAGe IN litigation IN WHICH THE STATE MAY HAVE AN INTEREST; PROVIDING NOTICE WHEN THE ATTORNEY GENERAL INTENDS TO ENGAGE IN LITIGATION IN WHICH THE STATE MAY HAVE AN INTEREST; REQUIRING A PUBLIC HEARING AND PUBLIC COMMENT ON THE ATTORNEY GENERAL'S INTENT TO ENGAGE IN LITIGATION IN WHICH THE STATE MAY HAVE AN INTEREST; REQUIRING THE ATTORNEY GENERAL TAKE UNDER CONSIDERATION AND RESPOND TO PUBLIC COMMENTS AFTER A PUBLIC HEARING; requiring a projection of litigation costs and reporting of actual LITIGATION costs; and AMENDING SECTION 2-15-501, MCA."

WHEREAS, Article II, section 8, of the Montana Constitution provides that 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"; and

WHEREAS, Article VI, section 4, of the Montana Constitution provides the Attorney General "shall have the duties and powers provided by law"; and

WHEREAS, the Attorney General currently has broad authority to litigate matters in the name of the State of Montana in which the state may have an interest pursuant to section 2-15-501, MCA; and

WHEREAS, the public currently has no opportunity to provide input or public comment as to whether the litigation furthers the interests of the State of Montana or not; and

WHEREAS, there are few checks on the spending of government funds to pursue such litigation and ensure that it is in the interests of the State of Montana; and

WHEREAS, providing for public comment and public participation in Executive Branch decisions strengthens democracy and trust in government; and

WHEREAS, the Montana Supreme Court has held that the Attorney General's authority may be restricted or modified by the Legislature in State ex rel. Olsen v. Public Service Commission, 129 Mont. 106, 283 P.2d 594 (Mont. 1955).

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 2-15-501, MCA, is amended to read:

"2-15-501. General duties. It is the duty of the attorney general:

(1) to prosecute or defend all causes in the supreme court:

(a) in which the state or any officer of the state in the officer's official capacity is a party; or

(b) in which the state has an interest, subject to the following:;

(i) At least 5 business days prior to engaging in litigation in which the state may have an interest, the attorney general shall produce a statement of intent to engage in litigation in the interest of the state, which must be provided to the governor's office and the house and senate judiciary committees or, in the interim, the law and justice interim committee, and published on the department of justice website. The statement of intent must include:

(A) the nature and location of the proposed litigation;

(B) the nature of the state's interest;

(D) an itemized projection of costs to the state for engaging in the litigation;

(ii) Once notice of intent has been provided, the attorney general shall schedule a public hearing with at least 5 business days' notice and provide an opportunity for comment from the public concerning the attorney general's proposed litigation before engaging in litigation in which the state may have an interest.

(iii) The attorney general shall fully consider any written submissions and public comment when deciding whether to proceed with litigation in the interest of the state. The attorney general's decision and a statement responding to the written submissions and public comments made during the hearing must be posted on the department of justice website within 5 business days of the public hearing and prior to the attorney general engaging in litigation.

(iv) As used in this subsection (1)(b):

(A) "Attorney general" means the attorney general, any subordinates, or any agency under the department of justice.

(B) "Engaging in litigation" means filing or joining in litigation as a party, participating as amicus curiae, or by providing funding or personnel to support the litigation.

(2) to represent the state in all bankruptcy proceedings in which the state's interest may be affected and in other debt collection proceedings at the request of a state agency;

(3) after judgment in any of the causes referred to in subsections (1) and (2), to direct the issuing of a process as may be necessary to carry the judgment into execution;

(4) to keep a permanent register of all cases prosecuted or defended by the attorney general. Each case under subsection (1) must be entered into the register upon commencement of the litigation and updated within 30 days of the conclusion of litigation in the matter. The update at the conclusion of litigation must include an itemization of costs associated with the litigation for each case, including but not limited to fees and expenses for outside counsel and the number of hours expended in the matter by in-house counsel. The register must be open to the inspection of the public during business hours. The attorney general shall deliver the register to the attorney general's successor in office.

(5) to exercise supervisory powers over county attorneys in all matters pertaining to the duties of their offices and from time to time require of them reports as to the condition of public business entrusted to their charge. The supervisory powers granted to the attorney general by this subsection include the power to order and direct county attorneys in all matters pertaining to the duties of their office. The county attorney shall, when ordered or directed by the attorney general, promptly institute and diligently prosecute in the proper court and in the name of the state of Montana any criminal or civil action or special proceeding.

(6) when required by the public service or directed by the governor, to assist the county attorney of any county in the discharge of the county attorney's duties or to prosecute or defend appropriate cases in which the state or any officer of the state in the officer's official capacity is a party or in which the state has an interest;

(7) to give an opinion in writing, without fee, to the legislature or either house of the legislature, to any state officer, board, or commission, to any county attorney, to the city attorney of any city or town, or to the board of county commissioners of any county of the state when required upon any question of law relating to their respective offices. The attorney general shall give the opinion within 3 months following the date that it is requested unless the attorney general certifies in writing to the requesting party that the question is of sufficient complexity to require additional time. If an opinion issued by the attorney general conflicts with an opinion issued by a city attorney, county attorney, or an attorney employed or retained by any state officer, board, commission, or department, the attorney general's opinion is controlling unless overruled by a state district court or the supreme court.

(8) to discharge the duties of a member of the board of examiners and state board of land commissioners;

(9) to perform all other duties as required by law."