Day 45 of Montana’s 68th Legislature provided indisputable evidence that any notion of the Republican lawmakers’ relationship with the Montana court system cooling down between the last legislative session and the current one was completely false.
It’s true that compared to last session — when debate about legislation giving the governor unilateral power to fill judicial vacancies spiraled into a broader fight about judicial transparency and the extent to which the Legislature can or should be involved in the court’s business — judicial bills have occupied less space thus far in the 2023 session, with its focus on a $2.4 billion state budget surplus and focus on a conservative social agenda.
However, the conflict between branches extends beyond specific legislation. It arises from the clash between a steadfast institution, the state Supreme Court, which strongly aligns with the Montana Constitution, and a resurgent, ideologically motivated Republican Party that has gained control in the Legislature and executive branches of state government by pledging to challenge the existing order.
As an example: One of the Legislature’s major court bills this session, Senate Majority Leader Steve Fitzpatrick’s Senate Bill 191, currently awaits the signature of Republican Gov. Greg Gianforte. It seeks to raise Montana courts’ standards for granting injunctive relief — a court order that preserves the status quo.
According to Fitzpatrick, a representative from Great Falls, SB 191 does not correlate with the quantity of bills that have encountered constitutional challenges or injunctions during the 2021 session. He dismisses the notion despite several bills receiving court-ordered injunctions that halted their execution. However, the proposed language in his bill aligns with the argument presented by the state attorney general in support of a Republican-sponsored abortion law. The argument asserts that plaintiffs can easily obtain injunctions in Montana.
Lawmakers have not been hesitant to make efforts in reshaping the court during this session. Republicans argue that it is crucial for the Legislature to assert its role as a check on other branches of government and allow public (and partisan) scrutiny of the judiciary’s internal processes.
In 22 different instances in the section establishing the judiciary, the 1972 Montana Constitution assigns some deference to law or the Legislature, House Speaker Matt Regier, R-Kalispell, said last week.
He stated that there are twenty-two distinct areas, as outlined in the Constitution, where we can reinstate checks and balances within the judiciary. Many legislators have taken notice of this, including the Judicial Standards Commission and the district court council, which oversees the allocation of funds in district courts. There isn’t a comprehensive master plan, but rather a collection of individual good ideas being considered.
Fitzpatrick’s SB 191 was not the only court bill that swiftly passed through the Legislature. However, certain significant changes faced obstacles and were delayed in committee or on the floor before the transmittal deadline. Examples include a proposal for a constitutional amendment, which aimed to grant the Legislature the power to appoint Supreme Court justices and gradually reduce their number from seven to six and eventually to five in the coming years.
And last Thursday, the defeat of Great Falls GOP Rep. Scot Kerns’ House Bill 595 on the floor sounded the death knell for a quartet of bills to allow or mandate partisan judicial races (and, in some cases, other nonpartisan positions), a response to the 2022 race for Montana Supreme Court. Each bill died, either in committee or on the floor. Kerns’ proposal was the last to go up for a vote, and some Republicans teamed up with Democrats to kill the bill 46-54.
Republican lawmakers have indicated their intention to persist with their judicial efforts in the latter half of the session, perhaps through the introduction of constitutional amendments. These amendments would necessitate two-thirds votes in the Legislature and approval from the voters. According to the legislative saying, no idea is truly considered dead until sine die.
“I guess I’d say stay tuned,” Rep. Bill Mercer, R-Billings, a former U.S. attorney for the state of Montana, said last Friday.
Here is a summary of what was approved, what was rejected, and what might happen in the future.
INJUNCTIVE RELIEF REVISIONS
- ✅ SB 191, SB 134, SB 135 and SB 136, a suite of bills from Sen. Steve Fitzpatrick, R-Great Falls, that seeks to change the standards for judges to grant temporary restraining orders and injunctions in Montana courts, all passed both chambers in the first half of the session and now await Gianforte’s signature. SB 191, the flagship bill, directs courts to adopt the ostensibly more stringent federal court standards for injunctions, which could be relevant in legal challenges to bills passed by the Legislature.
- ✅ House Bill 695, sponsored by Rep. Bill Mercer, R-Billings, passed the House. It would implement a change to temporary restraining order laws that was struck out of Fitzpatrick’s SB 191 during the committee process. Under the bill, parties in a court case could not request a restraining order against a state or local government agency without first notifying the defendant. Mercer pointed to multiple court cases in the last two years where that has been an issue. One case concerned a proposed ballot initiative from 2022 that would cap property taxes in Montana. In that litigation, the Montana Federation of Public Employees sued the state to stop signature gathering on the initiative, successfully obtaining — without prior notice to lawyers with the attorney general’s office and the Montana secretary of state — a restraining order against the initiative from a district court.
JUDICIAL ELECTIONS
- ❌ HB 595, sponsored by Rep. Scot Kerns, R-Great Falls, died on the House floor Thursday 46-54, with a group of Republicans joining Democrats in opposition. One of several bills on a similar theme, Kerns’ bill would have required judicial candidates to run for election as Democrats, Republicans or independents. “I acknowledge that candidates need a level playing field from which to run, but it is not achieved by installing a partisan teeter-totter on that field,” one of those opposing Republicans, Rep. Wayne Rusk of Corvallis, said in explaining his vote.
- ❌ SB 302, from Rep. Daniel Emrich, R-Great Falls, died on the Senate floor at the hand of a bipartisan coalition. It would have required all candidates for judicial office to run with a party affiliation in a general election following a nonpartisan primary.
- ❌ SB 200, from Sen. Greg Hertz, R-Polson, fell in the Senate State Administration Committee in early February. It would have allowed, but not required, candidates for judicial office and several other nonpartisan positions to run with party affiliations.
- ❌ Thompson Falls Republican Rep. Paul Fielder’s HB 464 came close. The bill, which would allow judicial candidates to run with party affiliations and announce partisan endorsements, died on the House floor, 49-51.
- ❌ SB 372, a constitutional amendment referral from Emrich, died in the Senate Judiciary Committee. It proposed a constitutional amendment to replace the state’s long-standing system of judicial elections with legislative appointments.
JUDICIAL ETHICS AND STANDARDS
- ✅ SB 201, sponsored by Sen. Greg Hertz, R-Polson, is headed to the House. It says a party in a court case can request the judge be recused if a lawyer, law firm or party in the case has directly or indirectly provided financial support to the judge’s election campaign during the last six years to the tune of $10,000 for Supreme Court candidates and $5,000 for other judicial positions.
- ❌ HB 772, sponsored by Rep. Lyn Hellegaard, R-Missoula, was tabled in the House Judiciary Committee ahead of transmittal. It would have established an even lower donation threshold to get a judge recused, and, in certain circumstances, allowed the attorney general to assign a district court judge to replace the chief justice on a case.
- ✅ HB 436, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, passed the House. It would allow for the substitution of judges in child abuse and neglect cases.
- ✅ HB 412, sponsored by Rep. David Bedey, R-Hamilton, would expand certain sections of the state code of ethics to legislative and judicial officials. It passed the House in February. Judges in the state are historically bound by the state code of judicial conduct.
- ✅ SB 252, sponsored by Hertz, would extend the state code of ethics to judicial officials. It passed the Senate and now heads to the House.
- ✅ SB 313, sponsored by Sen. Keith Regier, R-Kalispell, would open up certain proceedings of the Judicial Standards Commission, which hears complaints of judicial misconduct, to examination by the public and other state officials. It passed the Senate 26-24.
- ✅ HB 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, passed the House and now awaits a Senate committee hearing. It changes the appointment process for the five-member Judicial Standards Commission, giving legislative leadership and the Montana attorney general — both partisan positions — authority to nominate members to the commission.
COURT ADMINISTRATION
- ✅ SB 410, sponsored by Sen. Barry Usher, R-Laurel, passed out of the Senate. It removes a single line of statute related to the duties of the state court administrator, a nonpartisan position appointed by the state Supreme Court that became a focal point of the separation-of-powers fight. The bill would strike language prescribing that the court administrator carry out whatever “other duties that the supreme court may assign.”
- ❌ SB 230, sponsored by Sen. John Fuller, R-Kalispell, died on the Senate floor in early February. It takes an even more direct swipe at the court administrator, giving the partisan clerk of the Supreme Court the ability to hire and fire the administrator.
- ❌ SB 299, sponsored by Usher, calls for a one-time legislative performance audit of Montana district courts. It died on the Senate floor.
- ✅ SB 224, sponsored by Sen. Greg Hertz, R-Polson, is similar to SB 299. It requires the court administrator to report district court caseloads and the rate of judge substitutions to the Legislature. It passed on the Senate floor.
- ❌ SB 311, sponsored by Usher, would reduce the number of justices from seven to six and then to five over the next several years. The mechanics of the bill introduced a potential complication: There would be a scenario in which the court could have a tie vote, which isn’t provided for in the state Constitution. It died on the Senate floor.
LEGISLATIVE INTERVENTION
- ✅ SB 490, sponsored by Sen. Greg Hertz, R-Polson, passed out of the Senate. It would broadly expand the Legislature’s subpoena and investigative powers. During the separation-of-powers clash, the Supreme Court ruled legislative subpoenas for court records invalid, saying they did not express a proper legislative purpose.
- ✅ SB 278, sponsored by Sen. Steve Fitzptrick, R-Great Falls, allows the sponsor of legislation to intervene in a declaratory judgment action in court involving their bill. It passed out of the Senate.
- ✅ HB 518, sponsored by Rep. Bill Mercer, R-Billings, is a variation of the same theme: increasing legislative involvement in litigation surrounding legislative bills. It would authorize the Legislature to sue or defend legal challenges to the constitutionality of its bills. It passed out of the House.
RESOLUTIONS
- ✅ SJ 15, sponsored by Sen. Tom McGillvray, R-Billings, passed out of the Senate. Resolutions don’t have the force of law, but they do express legislative intent. SJ 15 states: “The belief that the court has exclusive authority to interpret the constitution and that its decisions are binding on the other two branches is a myth based on a faulty understanding of Marbury v. Madison.”
- ❌ SJ 11, sponsored by Sen. Keith Regier, R-Kalispell, died on a 25-25 vote in the Senate. It resolved that “nowhere does the Montana Constitution authorize the Supreme Court to define the law.”
WHAT COULD BE NEXT
One notable aspect of the current bicameral Republican supermajority is their capacity to approve constitutional amendment ballot referrals. These referrals, which necessitate a two-thirds vote from both chambers of the Legislature, can now be passed without relying on Democratic support.
However, up until now, Republicans have primarily concentrated on making statutory modifications to the judicial branch. However, this emphasis might shift in the latter part of the session due to the later transmittal deadline for referendum proposals compared to general bills. A compilation of bill drafts indicates potential amendment suggestions concerning the Judicial Standards Commission, judicial term limits, and other related matters.
In the second half, Mercer, who has developed a keen focus on judicial bills, offered a sneak peek into a potential significant revamp of the court that might take place.
Mercer mentioned during a press conference after adjournment on transmittal day that a constitutional amendment proposal will be presented in the latter half. This proposal aims to include a ballot measure suggesting the appointment of Supreme Court justices by the governor, subject to confirmation by the Senate. He further stated that there might be additional constitutional amendments that could touch upon this matter.
