CHAPTER 2: IN MONTANA Introduction agencies. Once adopted, these rules have the force of . This delegation of power is valid if the provides There are many operating sufficient statutory standards and criteria in Montana. This chapter describes and to guide the agency. Delegation discusses the of the three of rulemaking authority without sufficient branches of state government, the federal guidelines is an unlawful delegation of government, Indian , and local power. governments. Legislative Branch Three Branches of State Government The Legislature is a body of elected persons that has the power to enact , levy , and appropriate money. The The Montana provides for Montana Legislature is bicameral and is three distinct branches of state composed of 50 senators and 100 government. The three branches of representatives. The has the government and their general functions power to confirm appointments made by are: the , such as the appointment of agency heads. T the Legislative Branch, which sets public policy through laws and The Legislature also has impeachment appropriations; powers. The T the Executive Branch, which may accuse certain officials of felonies, implements laws; and misdemeanors, or malfeasance in office. T the Judicial Branch, which settles The Senate may try and convict these disputes arising from the officials and require that the officials be interpretation or application of suspended or removed from office. laws. There are limits on the power of the Furthermore, the constitution prohibits Legislature. The Legislature may not one branch from exercising the power of exercise the powers of the the other branches, except when the branches of state government. For constitution expressly directs or permits example, the Legislature generally may this exercise of power. This concept is not interfere with the Executive Branch in referred to as "". the purely administrative aspects of carrying out the law, such as imposing a The application of this important hiring freeze or making specific staffing constitutional provision may not be as and resource allocation decisions. clear as this simplistic summary indicates. Legislative power and responsibility may For example, the Legislature may not be abdicated to private organizations delegate rulemaking power to state or the federal government.

[2] The organization and services of the Legislative Branch are described in more detail in the following chapter.

Executive Branch

The Executive Branch includes elected officials and agencies under the of these officials. Article VI, section 7, of the Montana Constitution provides for no more than 20 principal departments and for the 3 boards of . Elected officials and the agencies under their jurisdiction are described below.

T Governor. There are 13 principal departments established in state law whose heads are appointed by the Governor. There are three boards established in the Montana Constitution that are under the authority of the Governor, which along with the Superintendent of Public Instruction constitute the Department of Education. In addition, there are numerous additional boards, councils, commissions, and other entities established by law. These are attached to a department or board for administrative purposes. T Lieutenant Governor. T Secretary of State. T Attorney General. The Attorney General is the head of the Department of Justice. T State Auditor. The State Auditor serves as the Securities Commissioner and the Commissioner of Insurance. T Superintendent of Public Instruction. The Superintendent of Public Instruction supervises the Office of Public Instruction. T Public Commission. The Public Service Commission functions as the department head for the Department of Public Service .

Judicial Branch

The judicial power of the State of Montana is vested in the following:

T the Supreme Court, consisting of a Chief Justice and six Associate Justices; T the District Courts; T the Workers' Compensation Court; T the Water Court; and T the courts of limited jurisdiction, which include Justices' Courts, Municipal Courts, and Courts.

[3] Unlike most state court systems and the and the Rules of Lawyer Disciplinary federal , Montana does not have Enforcement that govern lawyer discipline an intermediate appellate court. cases. On occasion, the Montana Consequently, the Supreme Court hears Supreme Court also must determine direct appeals from all of the District whether to impose judicial discipline as Courts across Montana, as well as from recommended by the Judicial Standards the Workers' Compensation Court and Commission. In addition, the Supreme the Water Court. Because people have a Court, as part of the state assumption of right to an appeal and there is no District Court funding, must adopt a intermediate appellate court for personnel plan for the Judicial Branch. Montanans to go to, the Montana The Chief Justice also chairs the District Supreme Court does not have discretion Court Council, created by the Legislature to turn down appeals; it must take them to implement and administer the state- all and resolve them. funded District Court program.

The Montana Constitution also vests the The Clerk of the Supreme Court keeps all Supreme Court with original jurisdiction. Supreme Court records, maintains the Original jurisdiction may be asserted via court's docket, and performs other habeas corpus applications from inmates administrative tasks. and petitions for supervisory control over District Courts in cases still pending The Court Administrator is the chief there. The Supreme Court also may administrative staff person for the exercise original jurisdiction in a case that judiciary. Answerable to all seven justices has not been through a District Court if of the Supreme Court, the administrator there are no facts in dispute and the case executes the day-to-day administrative presents only legal or constitutional operations of the Supreme Court, questions. An example of a case in recent including some administrative matters years in which the Montana Supreme concerning District Courts and courts of Court had accepted original jurisdiction of limited jurisdiction. this type was the challenge to term limits. Federal Government ANY ACT OF THAT IS NOT ITSELF IN VIOLATION OF THE Under the supremacy clause of the U.S. U.S. CONSTITUTION MAY NOT BE Constitution, any act of Congress that is not itself in violation of the U.S. CONTRAVENED BY A STATE Constitution may not be contravened by a LEGISLATURE. state legislature. The U.S. Constitution also places certain direct limitations upon the states. For example, compacts The Montana Supreme Court has other between states require congressional duties, including lawyer discipline and consent. The federal government revisions of various rules, such as the sometimes encourages the states to Montana Rules of Civil and Appellate adopt or comply with certain laws by Procedure, the Rules of Professional Conduct that apply to Montana lawyers,

[4] withholding federal funds if a state does of the U.S. Congress. With rare not comply with a federal requirement. exceptions, a state has jurisdiction within a reservation only to the extent that Tribal Governments Congress has delegated specific authority to the state or in situations in which neither federal nor tribal law preempt Although Montana is home to seven state law. reservations, the state has eight tribal governments (see Figure 2-1). Indian The Legislature established the Office of tribes have the right to develop their own State Coordinator of Indian Affairs, which form of government and to establish their is administratively attached to the own civil and criminal laws; jurisdiction is Governor's Office. The coordinator is often shared among federal, tribal, and charged with carrying out the legislative state governments. Tribal courts policy regarding Indian affairs, which is adjudicate the laws of tribal governments. established in section 90-11-101, MCA. The U.S. Constitution gives plenary One element of the legislative policy is a authority over Indian tribes to the federal declaration that "the best interests of government, not the states. As a result, Montana Indian tribes will be served by the federal government has a trust engaging in government-to-government responsibility to fulfill treaty commitments relationships designed to recognize the rights, duties, and privileges of full citizenship that Indians are entitled to as citizens of this state". Dealing with tribal governments on a government-to- government basis means that a dialogue is initiated between governing bodies rather than interacting with tribal governments as if they were special interest groups.

Under the State-Tribal Cooperative Agreements Act (Title 18, chapter 11, MCA), state agencies may enter into agreements with tribal governments to administer and programs and to promote cooperation between state agencies and tribal governments in Mission Mountain Encampment mutually beneficial activities and services. Photo courtesy of Monte Marengo For example, since 1990, the state has had a cooperative agreement with the that are unique to Indians and Indian Confederated Salish and Kootenai Tribes tribes. The Montana Constitution explicitly regarding fish and wildlife management acknowledges that all lands owned or on the Flathead Reservation. held by any Indian or Indian are under the absolute jurisdiction and control

[5] Figure 2-1. Indian Reservations and Tribal Governments in Montana

Blackfeet Reservation Crow Reservation Flathead Reservation Fort Belknap Reservation Fort Peck Reservation Northern Cheyenne Reservation Rocky Boy Reservation Little Shell Band of Chippewa*

*The Little Shell Band of Chippewa has a tribal government but does not have a reservation. It is seeking federal recognition, which provides a tribal government with access to federal programs and services.

Local Governments Local governments with self-governing powers are those that have adopted a self-governing charter under Montana Local governments, such as counties and law. In general, local governments with incorporated and towns, are legal general powers have those powers that creations of the state. The powers of local are expressly or implicitly granted by the governments are derived from the state's Montana Legislature. Local governments constitution and . Under the with self-governing powers have those Montana Constitution, there are two basic powers that are not specifically denied by types of local governments: governments Montana law or the with general powers and governments government's charter. with self-governing powers.

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