~This will be an on-going column by incarcerated author Robert L. Rose.
The “RIGHT-TO-KNOW” and “RIGHT-TO-PARTICIPATION” sections of the Montana Constitution were designed to encourage “open government” and maximize citizen access to the decision-making institutional process of state and local government. (Article 2, Sec. 8-9, Mont. Const.)
Both rights enhance the Freedom of Information which is the cornerstone of democracy. The “right-to-know” is a companion to the preceding “right-to-participate”. Both arise out of the increasing concern of citizens and commentators alike that governments sheer bigness threatens the effective exercise of citizenship. Our government is derived from the people and is intended for the benefit of the people. Thus the people have a fundamental right to demand information about government activities and to obtain the information they request. Hence, Government in Montana is required to be more open and accessible because of these two very important sections. See( THE RIGHT TO PARTICIPATE AND THE RIGHT TO KNOW IN MONTANA, 66 Mont. Law Rev. 297., Summer 2005).
Mr. Foster, one of the delegates to the Montana’s Constitution stated the following: “Public awareness and access seem to be the only tools to remind the great mass of public servants that their job is to serve the needs of the public and no other; they are paid by tax dollars to benefit the public above all else.” [ed- emphasis added.]
Thus it is clear that these tools are there for “we the people” to utilize to remind our public servants of who they are accountable too.
To ensure that these correlating provisions of our constitution were enforceable and had any substance, the legislation passed laws for that purpose. Specifically, Montana Code Annotated Sec. 2-3-101, demonstrates the legislative intent, which closely tracks the language of Art. 2, Sec. 8 of the Montana Constitution:
“The Legislature finds and declares pursuant to the mandate of art. 2, Sec. 8 of the 1972 Mont. Const. that legislative guidelines should be established to secure to the people of Montana their Constitutional right to be afforded reasonable opportunity to participate in the operation of government agencies prior to the final decision of the agency.”
MCA Section 2-3-102(1) defines “agency” as “any board, bureau, commission, department, authority, or officer of the state or local government authorized to make rules, determine contested cases, enter into contracts except (a) the legislature…; (b) the judicial branches…; (c) the governor…”
MCA Section 2-3-103 deals with public participation, which has been refined by cases and Attorney General opinions. “Each agency shall develop procedures for permitting and encouraging the public to participate in agency decisions that are significant to the public. [emph. added]
MCA Section 2-3-112 provides the following limited exceptions to the public right to participate in agency decisions and the opportunity to submit views at public hearings: (1) Agency decisions dealing with emergency situations affecting public health, welfare, or safety; (2) An agency decision that must be made to protect the interest of the agency; (3) A decision involving more than a ministerial act-requiring no exercise of judgment-are subject to public participation mandates.
MCA Section 2-3-203 mandates the following: “(1) All meetings of public or government bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organization or agencies supportd in whole or in part by public funds or expending public funds must be open to the public. (2) All meetings of associations that are composed of public or government bodies referred to in subsection (1) and that regulates the rights, duties, or privileges of any individual must be open to the public.”
The Montana Department of Corrections is created by statute and is defined a state agency pursuant to MCA 2-15-2301. The Montana State Prison is an agency and division of the Montana Department of Corrections. Because they are agencies the public has the right to demand participation in agency decisions affecting the rights, duties, or privileges of any individual. Furthemore, the law requires meetings discussing such to be open to the public for those interested in participating. None of the exceptions listed above apply to the department or it’s Divisions, to include the State Prison. All agencies are required to also develop procedures for permitting and encouraging the public to participate. There seems to be no legitimate procedures as such that the Department has adopted concerning it’s institutional functions that affect the rights and privileges of famalies and friends of who interact with offenders in such institutions on a daily basis. (i.e. telephone, mail, visitation rules and policies).
It seems to be common practice within the Department of Corrections lately to discourage public participation rather than encourage it. I’m sure there are many readers who have experienced the closed doors they run up against when attempting to comment about department policies that have directly affected your rights and privileges in your quest to interact with incarcerated loved ones. According to the above statutes this is not to be. For those who are fed up with dealing with the callused attitude of department officials when greiving what your government is-or-is not doing that affects your rights and privileges, speak up. Get involved!! Let your voice be heard!! It’s your right to know and right to participate.
I cannot express enough the need for more public participation into what the Department of Corrections is doing. In order for there to be any real “positive change” we all must get more active in our government for under our great Constitution- we are the government. We have a duty to get involved and speak out. Luckily for us Montanan’s we have two very important and powerful sources of power in our constitution that limits our government’s power to operate in secrecy. Not only that, our Supreme Court in Montana has been particularly vigilant and uncompromising in protecting Montana’s Constitutional right to know and right to participate by rejecting other government bodies(agencies) attempts to limit or subvert these rights.
Justice Trieweiler noted:
“The delegates to the Constitutional Convention made a clear and unequivocal decision that government operates most effectively, most reliably, and is most accountable when it is subject to public scrutiny…Public officials gain undue power by their rarified access to information-and because average citizens are denied that same information, bureaucrats have another advantage: they escape full accountability to the people they serve.”
This article is a little long but necessary for you to understand not only your right to know and right to participate, but to realize you do have a powerful voice out there in the free world. You have a loud voice that needs to speak for so many of us that are locked up behind these walls. Our voices are stifled most of the time because of our conditions and retaliatory measures we often face. This voice speaks to concerned citizens in the advocacy group and beyond that are interested in speaking for “we the people” who are behind the walls. Please seize upon opportunities to be heard by your government about matters that are of interest to all of us.
The purpose of this article, and those to come, is to generate interest in more awareness of how we might spawn positive change through our rights to “know-and-participate” in state agency decisions such as those of the Department of Corrections. Many of their decisions are in need of ‘Correction’.
Robert L. Rose / MSP
