This week, a Senate committee reviewed a proposed legislation aiming to gradually decrease the number of associate justices on the Montana Supreme Court from six to four in the coming years.
According to the existing legislation, the court is composed of a chief justice and six associates.
Senate Bill 311, sponsored by Sen. Barry Usher, R-Laurel, is one of several bills under consideration this session that would reshape the court system, its ethical standards and its processes.
Usher testified that the bill aims to establish “efficiencies” within state government.
During his testimony to the Senate Judiciary Committee on Wednesday, Usher expressed his curiosity about the workload of our Supreme Court. He shared that he conducted research and was astounded to discover that California, with a population of 39 million, has an equal number of Supreme Court justices as a state with only 1 million residents.
The court often appoints five-judge panels to hear cases, Usher said. And its caseload has shrunk by 15% between 2018 and 2022, he noted, citing court data — so why not shrink the number of justices?
According to lobbyist Bruce Spencer’s testimony from the Montana Judges Association, the solution, as Usher proposed, is efficiency.
Spencer, who expressed opposition to the bill, informed the committee that basic math and logic indicate that if you distribute the same number of cases among fewer justices, it will result in a longer time frame for obtaining opinions.
Chief Justice Mike McGrath has expressed concern about the impact of the bill on the court’s workload, according to him.
According to Spencer, the high court’s docket for 2022 includes over 730 cases. While this number may be lower compared to 2015, where they received more than 800 case filings, it still exceeds the court’s historical average. Moreover, he mentioned that unlike California, Montana lacks an intermediary appeals court. Consequently, the state Supreme Court is obligated to handle all appeals brought before it.
According to Spencer, the court has an internal regulation stating that it must resolve cases within 180 days. If the membership of the court is reduced, meeting this deadline would become more challenging.
He stated that justice denied would be the result of delaying it.
The 1972 Montana Constitution envisions a court with four associate justices and one chief justice, but gives the Legislature the authority to increase the number of associate justices to six. Lawmakers took that step in 1979, and have reaffirmed that choice in multiple sessions since.
The Constitution remains silent about the option for lawmakers to decrease the number of justices, and it also does not specify a fixed count for the total number of justices on the court, which can only be five or seven.
Usher’s bill, which presents two possibilities for decreasing the number of justices, has the potential to generate a constitutional conflict.
In the proposed scenario, there will be no Supreme Court election held in either 2024 or 2026 in the state. Consequently, this would result in the removal of the court’s third and fourth seats, currently held by justices Dirk Sandefur and Beth Baker, respectively.
But that method would create a two-year period during which the court has a total of six justices — a circumstance not described in the Constitution that would leave open the possibility of evenly split decisions. Legislative staff flagged that constitutional friction in a legal note attached to the bill.
Consequently, if the court deems the initial approach unconstitutional, the bill outlines an alternative scenario. In this alternate version, the state would not conduct a Supreme Court election in 2028, when two associate justice seats are scheduled for the ballot simultaneously. Consequently, Justices Laurie McKinnon and Jim Shea would be removed from their positions.
Sean Slanger, representing the Montana State Bar, testified that even that could potentially give rise to legal complications.
He stated that the Constitution permits the Legislature to add more justices. The term ‘increase’ is specifically used in the Constitution, while it does not mention any provision for the Legislature to reduce the number of judges. According to the principles of statutory interpretation, a judge or justice cannot include something that has been left out or exclude something that has been included.
In an interview after the hearing on Wednesday, Usher disregarded that argument and stated that the Legislature’s power to reduce the number of justices is implied.
The bill has not been acted upon by the committee yet.
OTHER JUDICIAL BILLS
In a conversation with Montana Free Press on Wednesday, Usher expressed that he does not perceive SB 311 as connected to other judiciary bills supported by the GOP in this session.
He declared, “This thought, this process, belongs to me.”
However, the strain between Republican lawmakers and the judiciary has become a recurring issue in recent years, particularly following the 2021 session. During this time, Republicans successfully enacted approximately twenty-four bills that have encountered legal challenges based on their constitutionality.
Among those proposals was Senate Bill 140, which gave the governor direct power to fill judicial vacancies. While the state Supreme Court eventually upheld that measure, the legal battle over the bill ignited a broader conflict between the Legislature, its attorneys and the judiciary over the lobbying practices of the Montana Judges Association, the role of the Supreme Court’s administrator, the relative opacity of the state’s judicial disciplinary body, the reach of legislative subpoena powers and more.
During this session, Republicans have presented several proposals addressing the aforementioned conflict, although they frequently avoid explicitly linking them in official interviews.
The proposals include a slate of bills from Sen. Steve Fitzpatrick, R-Great Falls, that would make it more difficult for plaintiffs to obtain injunctive relief in court proceedings. The flagship proposal of that suite is Senate Bill 191, which directs Montana courts to adopt federal standards for granting injunctions and temporary restraining orders, which Fitzpatrick says are more stringent.
The language in SB 191 mirrors an argument that attorneys for the state made in litigation surrounding abortion restrictions passed in 2021, Planned Parenthood v. State: in short, that it’s simply too easy to obtain an injunction in Montana courts. That bill has flown through the process, leaving minority-party Democrats suspicious that Republicans are planning to pass the bill in advance of possible litigation over other issues on the agenda this session.
Other bills target the Judicial Standards Commission, the five-person body that reviews complaints of judicial misconduct. House Bill 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, gives the Montana Attorney General and partisan officials in the Legislature more power to appoint members to the commission. Another JSC bill, Kalispell Republican Sen. Keith Regier’s SB 313, would provide for public disclosure of elements of the commission’s process.
In my opinion, the current situation revolves around the challenge of maintaining a harmonious equilibrium among the three branches of government. It seems to me that the governor, the Legislature, and the Supreme Court perceive themselves as superior to others, neglecting the need for balance.
Sen. Barry Usher, R-Laurel
As Sen. John Fuller, R-Kalispell, put it during debate on his bill to give the partisan clerk of court hiring and firing power over the nonpartisan court administrator, some conservatives regard the court as a “self-licking ice cream cone.”
Still more proposals would allow judges to declare partisan affiliations while they run for office, an issue that arose during the 2022 Supreme Court race between Justice Ingrid Gustafson and current Public Service Commission President James Brown.
The court would be faced with a challenging situation if certain bills were passed, as it would have to handle cases concerning its own administration. This arrangement could attract criticism from the GOP, and as a result, attorneys representing the Legislature requested broad recusals from justices during the legal battle in 2021.
In the previous session, Usher, the former chair of the House Judiciary Committee, expressed that Republicans have a general inclination to impose limitations on a branch of government that they perceive as excessively empowered over the Legislature and executive. With supermajorities in both chambers of the Legislature and a clean sweep of every statewide office in the 2020 election cycle, Republicans hold significant control.
On Wednesday, he expressed his belief that the key issue is to achieve a balance among the three branches of government. Currently, he perceives that the governor, the Legislature, and the Supreme Court hold an elevated opinion of themselves, considering themselves superior to others.
Most Democratic lawmakers, along with critics of the bills, perceive them as a clear strategy employed by Republicans who are dissatisfied with recent court decisions. Their intention appears to be introducing partisan influence into a supposedly nonpartisan branch of government.
House Minority Leader Kim Abbott, D-Helena, described an “attack on independence on a coequal branch of government” in a press conference this week, and said Montanans, despite what the slew of judicial bills would suggest, like their courts.
Referring to justices Ingrid Gustafson and Jim Rice, Abbott highlighted that despite a two-year attack on the judicial branch, incumbents were elected by significant margins in November. He emphasized the need to support and defend this branch of government, as it is something Montanans have demonstrated their support for.
