Lawsuit filed against voter-passed ballot measure LR-121

A Montana immigration rights group is filing a lawsuit against a ballot measure passed by voters in this November’s election.

LR-121 denies certain state-funded services to illegal aliens.Voters passed the measure by nearly 80 percent of the vote.

Plaintiffs in the lawsuit believe it’s unconstitutional.

The Montana Immigrant Justice Alliance (or MIJA) is filing the lawsuit against LR-121 along with the state teachers union, the MEA-MFT. The groups are focusing the suit on the bill’s requirement that Montanans present proof of citizenship before accessing services like unemployment insurance, receiving certain state licenses or before they can work for a state agency.

Outgoing Victor Montana Republican State Senator Jim Shockley advocated in favor of LR 121 in the election. Shockley points to the overwhelming voter approval for the measure as the will of the people.

“Quite clearly the voters want the law enforced and the people of Montana want people to prove that they have government services coming,” Shockley said.

Plaintiffs say the law puts an undue burden on people to prove citizenship. Brian Miller is one of the plaintiff attorneys in the suit. He says this is not only an inconvenience, it is against the Constitution.

“One concern we have is from a privacy perspective,” he said. “You know, courts have recognized that inquiring into someone’s citizenship status is generally protected privacy interest. In Montana we have a right to privacy that is stronger than what’s recognized in the Federal Government.”

Miller cites studies showing up to seven percent of legal Montanans may not have the appropriate identification to access these services on them at all times. He says the law as it stands does not lay out due process for people to challenge wrongful denials of services. Miller does not think this lawsuit disrespects the will of the people.

“I don’t think it’s disrespecting anyone who when you vote on any piece of legislation to see if it’s constitutional or not,” he said.

Republican State Senator Jim Shockley is still not buying the plaintiffs argument. He says he doesn’t understand legal Montanans saying they don’t have an ID card.

“You can’t do anything without getting an ID card,” Shockley said. “You can’t cash a check a lot of times you can’t even use your credit card without an ID card, virtually everyone has an ID card.”

Shockley says this measure is a way for the state to save money by not giving these services to people they are not intended for. Plaintiffs say the process for proving citizenship will actually cost the state money and Montana does not have a demonstrated problem with undocumented immigrants illegally drawing on state services.

Also, plaintiffs argue ID cards like a driver’s license really doesn’t prove citizenship, and they say this means Montanans would need to have their passport or birth certificate on them.

The law goes into effect in January first. Plaintiffs are asking the courts put the law on hold while the suit is pending.

State Public Defender’s Office says it’s short on resources

The State Public Defender’s Office continues to tell state lawmakers it needs more money. A legislative committee heard a report today outlining how the office is short on resources. The public defenders will have to compete with many other requests for a piece of the state’s projected budget surplus.

Before the State Public Defender’s Office was created, people unable to afford their own defense received help at the County level.

The Montana chapter of the American Civil Liberties Union sued saying the county-controlled method was inconsistent—that some counties were not providing adequate public defense. So the Legislature created the State Office. It has been operating since 2006.

“But from day one the state has refused to put forward the money that’s necessary to make that commitment meaningful,” said ACLU Public Policy Director Niki Zupanic.

Both the ACLU and American University have released reports saying the state office is  not providing adequate services either. Now, the Public Defender’s Office itself has released a response to those reports that agrees in many ways.

“We are at a point where our ability to perform the mission of providing affective assistance of council becomes more and more in doubt because of lack of resources,” said the Chair of the State Public Defender Commission, Fritz Gillespie.

He says public defenders make far less than their peers in private practice—and they face unreasonable workloads. As an example, he says handling 400 misdemeanor cases a year is considered a national standard for a public defender. He then points to one Montana public defender who within six months had 260 active cases at once.

“I think it’s in trouble but I think it’s a lot better off than it was a year ago,” said Victor Republican Senator Jim Shockley.

He chairs the Law and Justice Interim Committee—which oversees the Public Defender’s Office. He says the office has been making great strides at the management level compared to where it was before.

“They didn’t know how they were spending their money, they weren’t keeping track of time properly on their attorneys. The managers at regional levels were not supervising properly,” Shockley said.

The ACLU’s Niki Zupanic agrees better management has led to a more efficient office. But she says that doesn’t entirely get to the heart of the matter—the caseloads are still going up and the funding is not keeping pace.

“The state needs to think again about the wisdom of trying to low-ball this office of trying to make this office either decrease services or try to do more with less. It’s not working, and it’s time for the state to match the commitment it’s made in creating this office with the dollars necessary to meet that constitutional obligation,” she said.

Thompson Falls Republican Senator Greg Hinkle calls the current situation at the Public Defender’s Office unacceptable.

“And I think the funding should be adequately increased to the public defenders office and our judicial system. So we may just need to make some cuts in another place and put the money over there,” Hinkle said.

Several Republicans on the committee also called for the Public Defender’s Office to start charging a small fee to those using the service as a way to raise funds—say $10 or $20.

The ACLU’s Niki Zupanic rejects that idea—saying the reason these people are using the Public Defender system is they don’t have the money for attorney’s fees.

Jim Shockley emphasizes legislative, military experience in Republican run for Attorney General

Jim Shockley

State Senator Jim Shockley has been playing a role in the Montana Legislature for 14 years. He currently chairs the committee that deals with law and justice issues. He’s looking to these years in the Legislature and his over 30 years of law experience to help him stand out in the Republican Primary Race for Attorney General.

Shockley was up at 4 AM the morning of our interview. The 67 year-old drove to Helena from his home in the Bitterroot Valley town of Victor. He had another radio interview on the phone beforehand and other stops in other communities afterward. That’s a statewide campaign for you.

“It’s a lot of work,” Shockley laughed, predicting he would be getting to bed around midnight.

In one respect, the Republican primary race between Shockley and attorney Tim Fox mirrors the Democratic AG primary between Jesse Laslovich and Pam Bucy. One candidate has extensive legislative experience—the other does not. The question is whether or not that’s important for the Attorney General’s seat. Not surprisingly, Senator Shockley says it is.

“If you’re in the legislature and you learn how the law is made, it’s easier to implement it and there will be certain times when the Attorney General is gonna want to lobby for legislation he thinks is needed by law enforcement, if you’ve been in the Legislature and know how the system works,” Shockley said. “You know the people in the Legislature, you can be much more effective.”

Shockley spent 20 some years in the Marine Corps. He received a purple heart for injuries received in Vietnam. And before opening his private law practice in Victor he worked as a military lawyer. When it comes to managing something, like the Attorney General manages the Department of Justice, he says Marines make things work.

“You’re oriented towards the mission–let’s call it a job. Second consideration is your people, let’s call that H.R. I’d take that approach to the Attorney General’s Office and I think I’d make it a better place to work and a more efficient place,” he said.

Shockley supports Attorney General Steve Bullock’s defense of Montana’s ban on Corporate Campaign Spending—the century-old Corrupt Practices Act. He also commends the Attorney General’s office for defending the most recent medical marijuana reform law passed by the state legislature.

He says that’s the Attorney General’s job regardless, though—to defend Montana’s laws—no matter how they came to be.

“I would represent the Legislature if they pass it by initiative or referendum regardless of how I might think about it,” he said.

He disagrees with Bullock not joining a lawsuit with other Attorney’s General against the Affordable Care Act. He calls the federal healthcare reform unconstitutional.

And he says Bullock made the wrong move in his state Land Board vote against leasing the Otter Creek Coal tracts. Bullock says he supported mining Otter Creek coal, but didn’t think the state was being offered enough money for the leases. The sale did end up going through anyway. But Shockley says that vote against Otter Creek is a risk he would not have taken.

He says with his seat on the land board he would be a strong advocate for responsible natural resource development. Shockley says people who worry about CO-2 emissions should look to China—which is building new coal-fired power plants every month.

“Us digging our coal in Montana is not going to make a difference in the big picture. They ought to have scrubbers to take out the sulfur and they do–there’s ways to take out the mercury,” Shockley said.

When asked about policy priorities he would pursue, Shockley does not list laws he wants to see enacted. He says Montana has enough law for the most part.

“I know a lot of politicians running for office saying I’m gonna do this that or the other with the law. Well I think enforcing what we got is probably the place to start and if we need more we can discuss it with the legislature.”

Shockley says he is being outspent two to one by his primary opponent, Tim Fox. But he says he’s trying to spend his money wisely meeting as many different people in as many different venues as he can—all across the state.

“I think the retail politics will pay off. People like to see the person who’s running for office, see what he looks like,” Shockley said.

He leaves my office shortly afterward to give more voters that opportunity.

Republican Tim Fox confident in run for Attorney General again despite 2008 loss

Tim Fox

Republican candidate for state Attorney General Tim Fox knows what it’s like to run a statewide campaign. The Helena attorney ran for the exact same post in 2008, narrowly losing to current Attorney General, Democrat Steve Bullock.

Fox believes results will turn out differently this time around.

Fox says he’s working hard to win this primary election against challenger State Senator Jim Shockley.

“I know from my days as a competitive athlete for many many years that you don’t want to look beyond the race at hand,” Fox said.

Fox says he brings 25 years of law experience to bear in this candidacy.

He’s held jobs in both the private and public sectors in criminal law and constitutional law. He’s been appointed a special assistant Attorney General. Fox has also served as a division administrator at the Department of Environmental Quality.

He says that prepares him to run something as large as the Department of Justice.

“I’ve budgeted. I’ve hired and fired. I’ve set policy and carried out policy,” he said. “I’ve worked with the legislature I’ve helped draft laws and regulations. I’ve carried out and defended laws and regulations.”

Fox says he’s hearing from supporters around the state that people want an Attorney General who will stand up to the Federal Government when it oversteps its bounds.

“One example of that of course is the Affordable Healthcare Act, otherwise known as Obamacare,” Fox said. He criticizes current Attorney General Bullock for not signing onto a lawsuit signed by 26 other Attorney’s General challenging the Affordable Care Act.

“There will be circumstances in the future where the federal government will overreach once again and I think we need a change of philosophy in how the Attorney General Acts in those circumstances,” he said.

Fox supports Bullock’s stance defending Montana’s century-old Corrupt Practices Act. A lawsuit has been filed to throw out this prohibition on corporate campaign spending in light of the U.S. Supreme Court’s Citizens United Decision. The nation’s high court has put a hold on the law until they decide whether or not to take the case.

Fox says he would also vigorously defend Montana’s Law.

“If I’m fortunate enough to be elected and take office in January it’s possible that case would be pending and I’ll be happy to take over that effort because that’s one of the responsibilities of the Attorney General, is to defend the statutes of the state of Montana,” he said.

Fox once served as the state’s primary hard rock and coal mining attorney—making sure mining companies were adhering to environmental laws. He says that experience will help him protect the provision of the Montana Constitution ensuring a clean and healthful environment.

Unlike some Republican Candidates, Fox supports Montana’s 1972 Constitution.

“There’s no one part of Montana’s Constitution that’s more important than the other,” he said. “It stands as a whole, it’s a great document. the people of Montana should be proud of that document and as Montana’s next Attorney General I would do everything I can to make sure that the provisions of the Montana Constitution are not only defended but respected as well.”

Tim Fox says the political atmosphere was different in 2008, when he lost to Steve Bullock. He says he thinks 2012 will be a better year to be a Republican and his 2008 loss will help him pull through.

“It’s always good to have experienced a campaign, particularly a statewide campaign once before and hopefully we’re making sure we get the message out,” he said.

But again, one race at a time. He first has to get past next Tuesday’s Primary Election.