ATTORNEY GENERAL MIKE MCGRATH
STATE OF MONTANA

FOR RELEASE: December 6, 2005

CONTACT: Lynn Solomon, 444-0582 or Judy Beck, 444-5774

AG: Public Defender, Commission Have Discretion Regarding Hiring, Retention

HELENA – In a formal attorney general's opinion (PDF) released today, Montana Attorney General Mike McGrath held that the Office of the Public Defender and the Public Defender Commission have complete discretion to decide how to hire employees to provide criminal defense services.

The 2005 Legislature passed the Montana Public Defender Act, creating a statewide public defender system. The legislation also created a Public Defender Commission to oversee the new system, and set July 1, 2006 as the starting date for the system.

James Park Taylor, chairman of the Public Defender Commission, requested the opinion, asking if the legislation required the commission and Office of Public Defender to retain public defender staff members employed in city and county public defender offices.

The opinion noted that the relevant section of the legislation said that employees "may be transferred to state employment" when the system goes into effect next year.

The opinion held that the legislature used the word "may" in its ordinary sense, to convey discretion. So, that section "allows the Commission and the Office of Public Defender discretion to determine which current county and city public defender employees to retain…."

Attorney general's opinions carry the weight of law unless a court overturns them or the legislature modifies the laws involved.

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