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Missoula City Attorney: Legislative meddling quashing city’s right to self govern

John Wilkins
Posted at 9:35 AM, Feb 07, 2022
and last updated 2022-02-07 16:52:21-05

MISSOULA — The Missoula City Attorney has joined other city leaders from Montana’s urban areas in calling out the Legislature’s recent push to nix the rights of municipalities to self govern, even as its members decry federal overreach from the nation’s capital.

Citing a long list of bills that preempted ordinances adopted by self-governing cities, Missoula City Attorney Jim Nugent last week issued a legal opinion intended to “inform and provide” local elected officials clear insight into what many are now describing as the long arm of the Montana Legislature.

“There currently is a trend evolving pursuant to which state legislatures throughout the United States are more frequently and with more breadth, topic wise, preempting local government authority and power of local governments with respect to local community issues,” Nugent wrote in a legal opinion released on Friday.

Nugent’s concerns follow that of Missoula Mayor John Engen, some members of the City Council and all three Missoula County commissioners in voicing frustration with recent legislative activity and its heavy-handed push to curtail rules and regulations adopted at the local level.

In some cases, legislators from eastern Montana have taken offense to some regulations adopted by elected officials in Missoula and have successfully pushed to change state law, effectively preempting the will of a majority of local voters.

“In recent decades, there were numerous instances of state preemption that directly affected the City of Missoula,” Nugent said. “There already had been quite a wide spectrum of the state of Montana preemptively intervening into Missoula City Council and Missoula community issues.”

In the past, that has included Missoula’s effort to require background checks for most guns sales and transfers within city limits. It also has included items ranging from local building codes to local regulations covering amateur radio antennas.

But during the 2021 session, with Republicans holding a solid majority in both the House and Senate, as well as all state offices, a sweeping number of bills quashed the rights of a city’s powers to self-govern.

Among them, the Legislature denied the authority of a local health officer to take certain actions during a public health emergency, such as the current pandemic. It also denied local government “any power to prohibit the sale of alternative nicotine produces or vapor products,” Nugent noted.

The Legislature also denied local governments the right to adopt carbon fees, prohibited “discrimination” based on a person’s vaccination status, and banned mask requirements. It also overturned a voter-approved measure placing a 2-cent tax on gasoline, despite the fact that the 1979 Legislature itself created that authority.

“The 2021 Montana State Legislature preemptively intervened into more than a half-dozen issues of potential local government regulatory interest, and/or potential regulatory interest to some Missoulians,” Nugent wrote.

Nugent isn’t alone in his concerns. Missoula Mayor John Engen last year said cities and counties across Montana have advocated for reasonable local control as provided by the state Constitution.

But in recent years, the Legislature has worked to limit local control while expanding its own powers, he said.

“When legislators from far-flung places in Montana impose their values over those of local jurisdictions, those actions seem to fly in the face of the spirit and letter of our Constitution,” Engen said.

Missoula County commissioners also have weighed in. Members of the Montana Republican Party have proudly advocated for state’s rights, seeking the room to craft their own rules and regulations free from Washington, D.C., interference.

That history has left many questioning the hypocrisy, including Commissioner Dave Strohmaier.

“They argue about getting the federal government off the state’s back and leave more decision-making power locally, but they’re doing the exact same thing to local government,” Strohmaier said recently. “The connection is tenuous at best if folks are claiming that the decisions we’re making locally here adversely impact another jurisdiction across the state.”