By Greg Jergeson
Over the years I have served in the Montana Senate, I have often received the following admonition: When you pass legislation, make sure your meaning is clear and don't leave it to someone else's interpretation. We've all heard horror stories of state agencies interpreting the laws passed by the Legislature in ways that violate what legislators may have intended when they passed those laws. We've all heard arguments that courts have overstepped their bounds in interpreting laws passed by the legislature.
It seems to me that the appropriate response, rather than bashing the "bureaucrats" or the "lawyers," is to follow the wisdom of the admonition. Make sure your meaning is clear and don't leave it to someone else's interpretation.
That, then, is at the root of my concern about the language in SB 3, Sen. Sam Kitzenberg's bill proposing a four-lane highway on Highway 2. Amendments, proposed by the Department of Transportation and adopted by the Senate Highways committee, cause me some genuine concern because I feel they can be misinterpreted in the future by others in the state, in the department or in the courts.
Those amendments provide that highway construction on Highway 2 will be done, generally,' as four-lane. Hey, that's great. I support that. Bravo! Those amendments go on to say that only federal funds, not requiring a state match, may be used for the Highway 2 project. No resources may be used for the Highway 2 project that reduces other highway construction
projects in the state.
I've pondered that language for weeks. I've thought about how it could be interpreted, or more to the point, misinterpreted. I have expressed the fear that someone, somewhere would interpret that language to mean that the only construction projects permitted on Highway 2 would be those that create a four-lane highway and any reconstruction projects that don't create a four-lane highway would not be permitted. Therefore, that 148 miles on Highway 2 planned for reconstruction in the next five years would not be permitted because those projects are not for four-lane and if they were redesigned for four-lane, existing resources, federal and state could not be used for them.
Clearly, that interpretation is not Senator Kitzenberg's intent. It's certainly not my intent. The Department of Transportation has stated that that is not their intent. So what's the problem?
The problem is that someone else may not recognize that intent. Perhaps those proposing a four-lane from Billings to Great Falls would like to grab the $104 million it will take to reconstruct 148 miles on Highway 2 as a handy down payment on their project. Perhaps the delegations along Highway 93 in western Montana would like that money diverted to their projects. Remember all the property tax wars that shifted resources from the east to the west. Let's face it folks, $104 million is a huge incentive for others to try to impose their own interpretation of the law to meet their own demands and desires.
I can understand Sen. Kitzenberg's reluctance to ask the House to amend SB 3 to clarify the intent of the bill. Senators often view the House as an unpredictable arena. Senators fear that House consideration of amendments will lead to confusion and, in that confusion, a well-intended bill may die. That is certainly a risk. I've succeeded, over the years, in getting a bill passed in the Senate, only to lose it in the House.
On the other hand, we have a bicameral legislature in order to preserve a system of checks and balances.' The second house must carefully scrutinize the bills sent to it from the other. That is a process that protects the public. Even were I not to offer my amendment to clarify the intent of SB 3, the members of the House really are obligated to carefully examine every Senate Bill they consider, just as Senators must carefully examine every House Bill considered in the Senate.
I've been advised to just let it go. There apparently are some who are misinterpreting my concern about the language as opposition to a four-lane for Highway 2. Not true!
And then there is the opinion from the chief legal counsel for the Legislature, Greg Petesch that the language in SB 3 will pose no problem. Well, Mr. Petesch is a brilliant lawyer and dedicated public employee. On any given day, perhaps a third of the legislators are asking him for his opinion on one matter or another. However, in one famous case from last session, the Montana Supreme Court ruled that a major piece of legislation passed in 1999, based on legislative interpretation of advice from Mr. Petesch, was unconstitutional.
Others have suggested that I have not been sufficiently "rah, rah, sis-boom-bah" enough for the proposal. Well, what can I say?
As my Senate career concludes, I hope those who will be serving there in the future keep the admonition I mentioned in the opening paragraph uppermost in their minds. "When you pass legislation, make sure your meaning is clear and don't leave it to someone else's interpretation."