Democratic AG Candidates Question Drug Testing Constitutionality

By Beacon Staff

The three Democratic candidates for state attorney general gathered for a forum in Kalispell recently, where they expressed skepticism about the constitutionality of proposed random drug testing for Whitefish high school students, and discussed the attorney general’s responsibility as a moderator during inter-local conflicts like the dispute between Flathead County and Whitefish.

When asked by the forum’s host, former state Supreme Court Justice and Whitefish attorney Terry Treweiler, how a proposed policy to randomly drug test Whitefish High students participating in extracurricular activities would hold up if challenged before the state’s highest court, all three candidates were wary.

“Is this actually interfering with the kids’ right of privacy?” was the fundamental question the court would consider, according to Steve Bullock, a Helena attorney and former deputy attorney general for the state Department of Justice.

“Montana’s constitutional right of privacy is stronger than even federal jurisprudence in that area,” said state Rep. John Parker, D-Great Falls, the House minority leader and deputy Cascade County attorney. “Frankly, I don’t think it would pass constitutional muster.”

“I would not be inclined to suspend the constitutional rights of the kids,” said Mike Wheat, a Bozeman attorney and former state senator. “I’m a firm believer and defender of our right to privacy.”

The forum, held at Kalispell’s KM Theater, drew roughly 45 people to hear the three candidates spar – congenially – over the Democratic nomination for a powerful and wide-reaching office that receives relatively little attention in a year of high-profile state and federal elections. The attorney general is the state’s chief legal officer, overseeing a staff of more than 700 on everything from police departments to the consumer protection division to serving on the state Land Board. Current Attorney General Mike McGrath, a Democrat, is term-limited out and is running for chief justice of the state Supreme Court, a nonpartisan office, against attorney Ron Waterman.

The candidates said they would continue some of the policies McGrath introduced, like reports on the charity care provided by Montana hospitals that receive tax breaks. But the candidates also said there are areas in which the office of attorney general could do more. When inter-local legal conflicts occur, like the current dispute between Whitefish and Flathead County heading to the Supreme Court over “planning doughnut” jurisdiction, the candidates said the attorney general should intervene between the two sides – while acknowledging the limits of that role.

“The attorney general should act to be a moderator when there are disputes brewing, but if someone’s going to sue, they’re going to sue,” Wheat said. Parker and Bullock agreed, adding that individual situations dictate whether attorney general intervention between municipalities will help or muddle conflicts.

A graduate of Whitefish High School, Parker emphasized his eight-and-a-half years as a criminal prosecutor and legislative career, where he carried the bill that gave authority over the consumer protection division to the AG’s office. Parker said he intends to enhance training at Montana’s law enforcement academy, and wants to improve relations with tribal councils, partly by cutting down on the response time to 911 calls from reservations. Parker also plans to introduce a bill in the 2009 Legislature requiring background checks for home healthcare workers.

Bullock, who authored the 2006 ballot initiative that raised Montana’s minimum wage law, said the attorney general needs to do more in the area of forensics investigation, and suggested expanding the number of attorneys in the consumer protection division, since legal victories in consumer fraud cases often result in large damage awards, allowing the division to pay for itself. Bullock also emphasized his intent to improve services and safety for children, calling for specialized training for school resource officers and even after-school programs to “make sure that every kid has opportunities.”

Wheat, who helped implement the state’s public defender system as a legislator, said the next attorney general should devote more resources to combating Internet predators, particularly those who attack both seniors and children. He also called for training improvements at the state law enforcement academy, and suggested the attorney general should be more involved in high-profile legal disputes between private parties when it involves the state – like the conflict over stream access on the Ruby River. “It’s the kind of case where the attorney general should be involved,” Wheat said. “That’s one area I think I would have done something differently.”

The winner of Montana’s June 3 primary election will face off against the winner of the Republican primary between Helena attorney Tim Fox and Butte attorney Lee Bruner. (The Beacon will report on the Republican AG race in a later issue).