Montana has a procedure for committees of the state legislature to weigh in on whether they believe that a particular proposed rule is consistent with legislative intent. Using that procedure, the relevant committees of the Montana House and Senate voted that the proposed rule is inconsistent with legislative intent. (Notice of Legislative Poll). The results of this legislative poll are admissible in evidence in the suit challenging the new rule.
The Great Falls Tribune reported yesterday:
Montana Solicitor General Dale Schowengerdt submitted comments while the rule was still in draft form that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason.
“The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.
But Fox will have to defend the rule in the lawsuit and another expected to be filed in federal court. The Department of Justice is the attorney for the state when an agency is sued.