The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
Republican legislative leadership filed a brief earlier this week with the Montana Supreme Court requesting the court overturn a temporary block placed on two housing bills by a lower court.
In the amicus, or “friend of the court” brief, the lawmakers say the court should do away with the temporary hold on the bills passed through the 2023 legislature because the courts overstepped the legislature’s authority, “weighing in on policy choices using unsupported or contested factual assertions and speculative opinions.”
Legislative authority has been at the center of several lawsuits Republican state legislators have brought in recent months, with claims the judicial system has not been fairly considering laws passed by the legislature. Plaintiffs in the case, Montanans Against Irresponsible Densification (MAID), see this as a weak argument that isn’t persuasive, but another amicus party, Institute for Justice, said the court is blocking legislation intended to combat the immediate housing crisis in Montana.
The two laws in question were part of a four-bill housing package signed into law by Republican Gov. Greg Gianforte. Senate Bill 323, sponsored by Sen. Jeremy Trebas, R-Great Falls, gives permission for duplex housing to go on land zoned for single-family housing. Senate Bill 528 sponsored by Sen. Greg Hertz, R-Polson, adjusts zoning regulations to allow for accessory dwelling units on single-family homes .
Gallatin County District Court Judge Michael Salvagni issued the preliminary injunction on the bills in December, saying the laws were contradictory, confusing and did not involve the public in the process. The state later appealed the injunction to the Supreme Court.
In their filing submitted Monday, Republican leaders pushed back on Salvagni’s order, saying the bills went through the legislative process, which included public hearings.
Republicans also said MAID did not have a legitimate constitutional challenge because they were “dissatisfied” with the laws that passed.
The leaders said Salvagni’s order mentioning the effectiveness of the legislation had “no judicial remedy” as “no judge may substitute his or her personal judgment for that of the legislature.”
“It is wholly inappropriate to declare legislative policies ineffective and therefore inoperable in advance of carrying out those policies,” the filing read. “Furthermore, if the policy choices prove ineffective once implemented, the Legislature may revisit those choices next session or in any session where stakeholders prevail upon the body to so act.”
Attorney James Goetz with MAID said in an interview the brief was unpersuasive and “makes pretty garden-variety comments on separation of powers at sort of a high-school level.”
“They keep making this kind of argument in the kind of general abstract way,” he said.
Goetz said the filing is also “late in the game” as both sides have already submitted their filings to the Supreme Court.
Attorney Ari Bargil with Institute for Justice, one of the other amicus parties, said in a statement the laws that are being blocked by the courts intend to help Montana’s housing affordability crisis.
“By eliminating some of these zoning barriers, they return to citizens the right to use their properties to add much-needed housing stock and bring down costs,” Bargil said in an email. “We look forward to a decision from the Montana Supreme Court that vindicates Montanans’ property rights and rejects the challengers’ case for what it is—another attempt to exclude.”
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