VI.4 Duties

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Constitution of Montana -- Article VI -- THE EXECUTIVE. Section 4. Duties. (1) The executive power is vested in the governor who shall see that the laws are faithfully executed. He shall have such other duties as are provided in this constitution and by law.

(2) The lieutenant governor shall perform the duties provided by law and those delegated to him by the governor. No power specifically vested in the governor by this constitution may be delegated to the lieutenant governor.

(3) The secretary of state shall maintain official records of the executive branch and of the acts of the legislature, as provided by law. He shall keep the great seal of the state of Montana and perform any other duties provided by law.

(4) The attorney general is the legal officer of the state and shall have the duties and powers provided by law.

(5) The superintendent of public instruction and the auditor shall have such duties as are provided by law.

History

Sources

Article V of the 1884 Constitution covered the Executive. Section 5 provided that "[t]he supreme executive power of the State shall be vested in the Governor, who shall see that the laws are faithfully executed." Section 15 provided "[t]here shall be a seal of this State, which shall be kept by the Secretary of State, and used by him officially. It shall be known as ""The Great Seal of the State of Montana." Finally, Section 17 provided "An account shall be kept by the officers of the Executive Department, aid of all public institutions of the State, of all moneys received by them severally from all sources, and for every service performed, and of all moneys disbursed by them severally, and a semi-annual report thereof shall be made to the Governor, under oath; they shall also, at least twenty days preceding each regular session of the Legislative Assembly, make full and complete reports of their official transactions to the Governor, who shall transmit the same to the Legislative Assembly." The 1889 Constitution adopted these sections, renumbering them under Article VII, Sections 5, 17, and 19. The 1889 Constitution gave the Lieutenant Governor the duty to be president of the Senate in Art. VII, Section 15.

Drafting

Delegate Proposal 77

Delegate Roeder introduced Proposal 77. His proposal did not contain a specific subsection enumerating the powers of the executive branch. Roeder's proposal provided that duties prescribed to the Governor by the Constitution may not be delegated to the Lieutenant Governor, and specifically enumerated to the Lieutenant Governor the power to reside as president of the Senate, and the ability to vote only when the Senate is equally divided. Roeder's proposal does not include the Attorney General, Secretary of State, Superintendent of Public Instruction, or Auditor. Montana Constitutional Convention 1971-1972, Vol. I, Delegate Proposal 77, at 180-84 (1979).

Delegate Proposal 107

Delegate Arbanas introduced Proposal 107. His proposal contained two sections pertaining to duties of the executive. Section 1, Executive Power, simply stated that "[t]he executive power of the state shall be vested in the Governor." Section 6, Executive and Administrative Powers, provided "[t]he Governor shall be responsible for the faithful execution of the laws. He may, be appropriate action and proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate or restrain violation of any constitutional or legislative power, duty or right of any officer, department or agency of the state or any of its civilian divisions. This authority shall not authorize any action or proceedings against the legislature. The Governor shall commission all officers of the state. He may at times require information, in writing or otherwise from the officers of any administrative department, office, or agency upon any subject relating to their respective officers. He shall be commander-in-chief of the armed forces of the state, except when they are called into the service of the United States and may call them out to execute the laws, to preserve order, to suppress insurrection or to repel invasion. Montana Constitutional Convention 1971-1972, Vol. I, Delegate Proposal 107, at 228-33 (1979).

Delegate Proposal 170

Delegates Babcock and Wilson introduced Proposal 170. This proposal contained the closest language to what was ratified. The proposal included the Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, Superintendent of public Instruction, and State Auditor in the executive branch, and provided that each officer shall perform such duties as prescribed by the Constitution and the laws of the state. This proposal also contained the recordkeeping and great seal provisions that ended up in the Secretary of State's duties. Montana Constitutional Convention 1971-1972, Vol. I, Delegate Proposal 170, at 319-23 (1979).

Majority Proposal

The majority proposal from the Executive Committee contained the following:

(1) The executive power of the state is vested in the governor, who shall see that the laws are faithfully executed. He shall have such other duties as are herein provided, and as provided by law.

(2) The lieutenant governor shall perform the duties delegated to him by the governor, and those provided for him by law, but no power specifically vested in the governor by this constitution may be delegated to the lieutenant governor in this manner.

(3) The secretary of state shall maintain the official records of the acts of the legislative assembly, and of the executive department, as provided by law. He shall keep the great seal of the state of Montana, and perform any other duties provided by law.

(4) The attorney general shall be the legal officer of the state, with the duties and powers provided by law.

The Committee comments on the majority proposal noted that "this section retains Article VII, Section 5 of the present Constitution with the deletion of the word "supreme" as superfluous." The proposal also allowed for Lieutenant Governor to be a full-time position, and deleted the existing constitutional authority of the Lieutenant Governor to assume the powers of Governor every time the Governor left the state. The Committee also noted that the hope was for the Secretary of State and Attorney General to not become policy makers; for this reason, they restricted the duties of the Secretary of State to recordkeeping and supervising of elections, and declined to make the Attorney General's statutory law enforcement and public safety duties constitutionally required. Montana Constitutional Convention 1971-1972, Vol. I, Executive Committee Majority Proposal, at 435-47 (1979).

Minority Proposal

The Minority Proposal contained the following:

(1) The executive power of the state is vested in the governor, who shall see that the laws are faithfully executed. He shall have such other duties as are herein provided, and as provided by law.

(4)The attorney general shall be the legal officer of the state, with the duties and powers provided by law.

(5)The auditor shall be the custodian of all fiscal records of the state. He shall be the issuing officer for all state warrants, with other duties and powers provided by law.

The comments on the Minority proposal indicated that the inclusion of the auditor was meant to strengthen the office and assure citizens that there would always be an independently elected auditor free of political pressure. The minority proposal expressed concerns over allowing a Governor to appoint the head of a department overseeing all state fiscal and audit functions, and viewed such a creation as an overcentralization of power and an invitation to corruption. Montana Constitutional Convention 1971-1972, Vol. I, Executive Committee Minority Proposal, at 458-65 (1979).

Style and Drafting

The Style and Drafting Committee recommended that the post-auditor language added to subsection (6) during floor debate should be moved to the Article on the Legislature. Montana Constitutional Convention 1971-1972, Vol. II, Style and Drafting Committee Report, at 904 (1979). Style and Drafting's changes were adopted without much debate. Montana Constitutional Convention 1971-1972, Vol. V, Verbatim Transcript, at 1698-99 (1979).

Floor Debate

On February 24, 1972, Delegate Cate introduced an amendment to subsection (4) of Article VI, Section 4, which would have given the Governor the power to appoint the Attorney General. He believed the Attorney General, and every attorney representing every agency in the state, should be of the same political party as the Governor, or else the Governor would be ineffective. This amendment was rejected. Montana Constitutional Convention 1971-1972, Vol. IV, Verbatim Transcript, at 867-70 (1979).
When debate commenced on Section 4 at large, subsection (1) of the minority report was adopted.
Delegate Cate introduced another amendment to subsection (2), which would have given the Lieutenant Governor the duty to provide information relative to government to any person who requests it and allowed the Lieutenant Governor to investigate any act or omission of any agency of government, which he deemed "people's advocate" duties. This amendment was rejected, and subsection (2) was adopted as from the Executive Report. Id. at 900-04.
Subsection (3) of the minority report was adopted without discussion.

Delegate Kelleher introduced an amendment to subsection (4) that would have required the Attorney General to be the same political party as the governor, in an effort to "stop the feuding between the Attorney General and the Governor." This amendment was rejected by a vote of 82-4. Subsection (4) of the minority report was then adopted. Id. at 904-10.

Delegate Wilson proposed an amendment to subsection (5) of the minority report, which, due to a printing error, inadvertently left of the duties of the treasurer. The amendment would have provided "[t]he state treasurer shall keep a separate account of each fund, and the legislative assembly may provide further duties by law." Delegate Wilson's amendment created a new subsection (6) for the Auditor's duties. Delegate Davis added an additional amendment that would have held "[t]he state treasurer shall not be eligible to his office for the succeeding term." Davis' amendment was rejected. Delegate Joyce then moved a substitute motion for subsection (5) to read "[t]he state treasurer shall have such duties as are provided by law." Delegate Joyce's motion succeeded, and subsection (5) was passed.

Subsection (6) received extensive debate and motions to amend. Delegate Felt moved to amend and create a much more detailed list of the Auditor's duties. Delegate Martin moved a substitute motion that would have provided "[t]he auditor shall have such duties as provided by law." Delegate Martin's motion passed. Subsection (6) was brought up for debate again two days later, by Delegate Felt's motion to make the Auditor's duties more detailed once more. Felt's amendment provided "In addition to the State Auditor, the Legislature shall appoint a legislative post-auditor, who shall conduct post-audits of financial transactions and accounts of the state, and of all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state, established by this Constitution or by law, and perform post-audits thereof. The appointment may be made through a legislative audit committee or as otherwise provided by the Legislature." Delegate Joyce moved a substitute motion to keep the language already adopted, which Felt agreed to accept and added as the first sentence of his amendment. Joyce then moved again to amend Felt's amendment, changing it to read "In addition to the State Auditor, the Legislature may appoint a legislative post-auditor, who shall perform such post-audit duties as shall be prescribed by law." This amendment passed. Subsection (6) was finally passed, reading "The State Auditor shall have such duties as are provided by law. In addition to the State Auditor, the Legislature may appoint a legislative post-auditor, who shall perform such post-auditing duties as shall be prescribed by law."

Delegate Habedank then moved to create a subsection (7) for the superintendent of public instruction, which passed. Id. at 911-27.
Article VI, Section 4 was approved by the Convention on March 10, 1972 by a vote of 84-11, with 5 delegates excused/absent. Montana Constitutional Convention 1971-1972, Vol. VI, Verbatim Transcript, at 1933-34 (1979). Prior to final adoption, on March 20th, Delegate Joyce moved to delete the language of subsection (5) that "The Legislature may appoint a legislative post-auditor who shall perform such post-auditing duties as may be provided by law." The motion passed and the language was deleted Delegate Babcock's proposal that "The Superintendent of Public Instruction and the auditor shall have such duties as are provided by law" was left in. This was approved by a 73-5 vote. Montana Constitutional Convention 1971-1972, Vol. VII, Verbatim Transcript, at 2799-2809 (1979). Article VI in its entirety was adopted by the Convention on March 22, 1972 by a vote of 87-8, with 5 delegates excused/absent. Montana Constitutional Convention 1971-1972, Vol. VII, Verbatim Transcript, at 2935-36 (1979).

Ratification

The 1972 Voter's Pamphlet regarding Art. VI, Section 4, informed Montanans that the "[o]nly change is subsection (2) which is new provision allowing legislature to make lieutenant governor full time. Deletes provision that lieutenant governor be president of senate." 1972 Voter's Pamphlet at 11.

Proposed Amendments

There have been multiple attempts to amend Article VI to rename the state Auditor the "Commissioner of Securities and Insurance." Generally, these efforts are legislatively referred constitutional amendments. In 2006, the proposed amendment was rejected by 64% of voters. Montana State Auditor, C-43 (2006). [1] In 2014, the amendment was rejected by a much closer margin of 51% of voters. Montana State Auditor Renaming Amendment, C-45 (2014). [2]

Interpretation

It is the duty of the Attorney General to institute and prosecute all actions or proceedings necessary for enforcement of regulation of utilities, whether requested by the Public Service Commission or not; the AG may authorize counsel employed by the Commission to act as special assistant AGs in prosecution of court actions. Mont. Power Co. v. Mont. Dep't of Public Service Regulation, 218 Mont. 471, 709 P.2d 995 (1985).

The State Auditor does not hold dual offices by carrying out legislatively imposed duty of membership on the Board of Hail Insurance, where the board duties do not pertain to legislative or judicial departments of government. Mountain States Ins. Co. v. State, 218 Mont. 365, 708 P.2d 564 (1985).

Commentary

Jesse Kodadek, "Expensive Free Speech: Western Tradition Partnership and the Silencing of the Private Attorney General Doctrine," 75 Montana Law Review 275 (2014).
G. Alan Tarr, "The Montana Constitution: A National Perspective," 64 Montana Law Review 1 (2003).

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