Gazette opinion: Getting more than you bargained for

2014-08-17T00:00:00Z Gazette opinion: Getting more than you bargained for The Billings Gazette
August 17, 2014 12:00 am

Anyone up for a game of civics?

We didn’t think so.

OK, how about a conversation on city charters?

No takers there either, huh?

About the time conversation turns to talk of charters and civics, people start to tune out, get up to use the bathroom, turn the newspaper page, or have visions of a boring high school class in which they talked separation of powers and what the secretary of state’s duties are.

But lost in that arcane civics knowledge lies a pretty important point — the remarkable power of a charter city.

This may be an oversimplification of the concept, but when it’s boiled down, cities that use a charter ideally get powers not taken by state or federal government. It’s really a beautiful and an American concept — one that should resonate with many rugged, freedom-loving Montanans. It says that Billings (and other charter cities) should get to decide how to best govern itself through ordinances. The state and the federal government only get to claim powers they assign to themselves respectively. The rest is off-limits if your city is chartered.

Sorry about that civics lesson. However, it’s important to understand that so that residents understand just how dangerous it is when city leaders ask for an opinion, as happened recently when the city sent a proposed (and failed) ordinance about nondiscrimination to the state’s attorney general.

With all due respect to state Attorney General Tim Fox, that’s like asking the fox (no pun intended) his opinion on henhouse safety.

What would seem like nothing more than a friendly bit of advice could end up being a pretty far-reaching opinion — and not just for the City of Billings.

Sorry, we promised just one civics lesson. But, here comes another.

An opinion from the state’s attorney general isn’t a mere recommendation. A formal opinion by the office has the force of law until challenged and overturned by the courts. That means if Fox and his office believe (remember it’s just an opinion) that the city does not have the power to enact a nondiscrimination ordinance or other similar ordinances, then it will put the city on very shaky legal ground. The issue — whatever it is — would likely have to be referred to a court to get a definitive answer.

That’s a lot of hassle.

And, really this has nothing to do with the now-defunct NDO.

Sure, if the attorney general ruled that Billings couldn’t do it, it would have meant the NDO would have dissolved if it had passed. But even more far-reaching, if Fox’s office rules that the city charter doesn’t allow it to enact an NDO, that would nullify the similar ordinances around the state in Butte, Helena, Bozeman and Missoula.

This isn’t just about Billings. It’s about how cities govern themselves and what powers they have.

It should be noted that Fox isn’t necessarily a neutral party when it comes to the NDO.

As a private attorney, Tim Fox provided legal representation to the Montana Family Foundation and other parties opposed to rights for same-sex partners. As Montana’s attorney general, he joined 10 other state attorneys general in an amicus brief to defend Nevada’s ban on same-sex marriage on appeal to the Ninth Circuit U.S. Court of Appeals. Fox is defending Montana’s same-sex marriage ban against a lawsuit filed in U.S. District Court in Great Falls.

Finally, and most troubling, is that if the attorney general’s office were to issue a rule on this, it would have ramifications far beyond this ordinance.

City leaders hopefully have realized the magnitude of what they’ve done asking for an opinion on the limits of a city’s charter.

Any effort to curb the power of a city charter will mean that a little part of the city’s ability to decide laws for itself will be curtailed or limited. If the state rules charter cities don’t have as much authority, that power will revert back to places like Helena, or Washington, D.C., instead of resting in the hands of the city council. That should be an affront to most folks in places like Billings that value the notion of deciding our future for ourselves, not leaving it in the hands of politicians who don’t live here.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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