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State Legislature Could Be Exempt From COVID-19 Directives While In Session

Montana lawmakers meet via video conference to discuss the 2021 legislative session and concerns around COVID-19, August 10,2020.
Montana lawmakers meet via video conference to discuss the 2021 legislative session and concerns around COVID-19, August 10,2020.

Montana lawmakers are working out plans for what their 2021 session will look like and there’s still plenty up in the air, like whether they’ll be required to wear face masks.

Legislative staff have explored whether local or state health rules, like Gov. Steve Bullock’s statewide mask mandate, apply to legislators in the Capitol building. Staff told lawmakers during an interim planning committee meeting Monday that there’s no clear answer.

In a 17 page memo, staff outlined why state lawmakers might or might not be subject to a state health rule while carrying out their legislative duties. Code Commissioner Todd Everts said it comes down to the codified separation of power between the governor and the Legislature.

“The Montana Supreme Court has held that it would be an impermissible intrusion of legislative power for another entity to regulate the internal legislative operations."

However, Everts said, that rule is not absolute. The state supreme court has also held that legislators could be bound to a state-issued health rule if it’s considered "minimal or an inoffensive intrusion."

Everts said a final ruling on whether state lawmakers have to follow Bullock’s mandate would have to be decided in court. Everts did say that if a lawmaker violates a health rule, like the mask mandate, during a legislative session, the lawmaker would have constitutional immunity from arrest.

Mask wearing has become a contentious political issue. Democratic lawmakers left a committee meeting last month in protest of their Republican colleagues declining to wear masks in the capitol. Republicans have said it should be a personal choice.

Democratic Sen. JP Pomnichowski, from Bozeman, asked Everts for clarification, saying she didn’t understand how lawmakers could be exempt from the rule.

"We’re also just human bodies capable of transmitting a virus," she said.

Republican Speaker of the House Greg Hertz, from Polson, urged fellow lawmakers to not get wrapped up in how the governor’s directive may or may not be enforced.

"We’ve got plenty of time going forward, I mean, we’ve seen things develop over the last four months, things are going to change dramatically over the next three to four months, too," Hertz said.

Lawmakers also talked Monday about the need for legislators and the public to have virtual access to meetings; what methods are best to prevent widespread transmission of the coronavirus in the capitol building and whether lawmakers should even meet in person at all.

Lawmakers will get another update from staff on planning efforts at the end of this month.

Shaylee covers state government and politics for Montana Public Radio. Please share tips, questions and concerns at 406-539-1677 or  
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