The city of Billings is considering a non-discrimination ordinance similar to those adopted by Missoula, Helena, Butte and Bozeman. It is my opinion that the foregoing self-government cities acted in excess of their legal authority. My purpose is to point out how the enactment of such an ordinance by the Billings City Council would exceed its authority.
I was the first city attorney for Billings when, in 1977, it commenced as a self-government City. I served for about 7 years as city attorney, and as litigator for the city for about 12 years. During those 19 years, I learned a lot about self-government powers. The city has not fared well in the courts when it attempted to exceed its authority.
Additionally, I served four terms as a Montana legislator and as chair of the House Judiciary Committee my last term. The issues now being brought to the city plus other matters geared to advance the LGBT agenda came before the Legislature each term, including 2013. As always, the Legislature held extensive public hearings in the House and Senate, the issues were lobbied extensively, and they were debated on the floor of both houses, but changes to the laws failed to pass.
LGBT legislative agenda
Homosexual and transgender advocates are now bringing these issues through the back door to circumvent the legislative process. They are pushing for city NDOs hoping the momentum will cause the Legislature to add sexual orientation, gender identity, and gender expression to the state nondiscrimination law. They are putting cities in a position to be sued for exceeding their authority. Nevertheless, cities are unwittingly going along.
The Montana Constitution is the basic law governing all laws, persons, and entities in the state, and is supreme. Adopting an NDO will allow some of the rights granted to everyone to be infringed by a small active segment of society. See Article I Sections 3, 4, 5 and 10. No self-governing city in the state of Montana has authority to infringe the rights guaranteed to all in the constitution. Passing an NDO would put the city in the position of supporting discrimination by LGBT segment of society.
Article XI Section 6 describes the extent of self-government powers:
A local government unit adopting a self-government charter may exercise any power not prohibited by this constitution, law, or charter.
The Legislature has passed laws that prohibit self-governments from exercising certain powers:
MCA 7-1-111. A local government unit with self-government powers is prohibited from exercising the following: (1) any power that applies to or affects any private or civil relationship ...
MCA 7-1-113 (1). A local government with self-government powers is prohibited the exercise of any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control ...
(3) An area is affirmatively subjected to state control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency.
State restricts cities
The whole area of illegal discrimination has been affirmatively subjected by law to state regulation and control, MCA Title 49 Part 2. The Montana Human Rights Commission is directed by the Legislature to establish administrative and procedural rules in implementing the act, MCA 49-2-204. Therefore, a self-government city is prohibited from passing any ordinance dealing with discrimination.
I was not hired to write this letter. I am sharing my knowledge and understanding on the issues.