(Photo illustration by Getty Images.)
A bill to allow political parties to contribute to judicial candidates is a “very simple bill,” according to the sponsor, repealing a single line of Montana Code.
“By repealing this statute, this will allow political parties, through their committees, to financially support judicial candidates directly, out in the open, transparently, and with accountability,” Rep. Tim Millett, R-Marion, said of House Bill 39.
The first bill in the Republican Legislature’s 27-part package aimed at judicial reform was voted out of the House State Administration Committee 11-8 on party lines last week, and was debated on the House Floor on Jan. 14.
Three Democratic representatives spoke in opposition to the bill, saying it would boost both the money involved in elections and perceived partisanship of the judicial branch.
Rep. Becky Edwards, D-Bozeman, said while she respected Millet’s desire for greater transparency in elections, “an attack on hardworking, impartial Montana judges is an appropriate means to get there.”
“HB 39 only increases and deepens the deep partisan divides all of us in this chamber are navigating on a daily basis making it more difficult to simply do our jobs as representatives of everyday Montanans,” Edwards said.
Rep. Alanah Griffith, D-Big Sky, who spent 24 years working as a staff attorney and chairs the Professionalism Committee of the State Bar of Montana, said she believes the law is unconstitutional and flies in the face of the Code of Judicial Conduct, which prohibits judicial candidates from accepting political endorsements and funds.
To address that point, Millett, the bill sponsor, said he is bringing another bill, HB 169, to allow judges to take part in political activities. The House Judiciary Committee will hold a hearing on HB 169 on Thursday.
Another opponent to the bill, Rep. Peter Strand, D-Bozeman, centered on the need for judges to be impartial as a reason to keep partisan money off the table. He pointed out the conduct of the Montana Supreme Court Justices during Gov. Greg Gianforte’s State of the State address the previous night in contrast to his fellow lawmakers’.
“They were stoic as could be imagined. They sat there through all of that, taking it in, nodding their heads a bit, they clapped at the very end. And that’s because their entire job, their training, everything about what they do is about objectivity,” Strand said. “They have to find ways to separate the partisan ideas in their hearts from the work they do. Our job here is to help them to get that job done right.”
Republican Rep. Braxton Mitchell, from Columbia Falls, said the bill should be supported because political parties can already donate money to Political Action Committees, which will in turn funnel money straight to a judicial candidate.
The House voted to approve HB 39 57-43, with one Republican, Rep. George Nikolakakos of Great Falls, joining all Democrats in opposition.
Senate committees get to work after delay
The Senate Judiciary Committee took up its first handful of judicial reform bills introduced in the upper chamber on Tuesday. Several bills were initially scheduled for hearings last week, but an inter-party rift among Senate Republicans halted business for most of the first five days of the Legislature.
Sen. Daniel Emrich, R-Great Falls, sponsored all four bills requested by the Senate Select Committee on Judicial Oversight and Reform heard by the committee — Senate Bills 13, 41, 43, and 44.
Senate Bill 13 would give district courts original jurisdiction over citizen ballot measures, instead of the Montana Supreme Court.
Emrich said the bill would provide additional oversight for the ballot initiative process, ensuring they undergo thorough factual reviews and comply with constitutional requirements, rather than get rushed through the system.
Opponents, however, said the measure adds unnecessary steps and could slow down the review process.
“Senate Bill 13 adds another step in the process and creates further hurdles for citizens in accessing their constitutional right to consider ballot measures,” said Heather O’Loughlin, with the Montana Budget and Policy Center.
Hal Smith, of the Trial Lawyers Association, said that the group had a “soft opposition” to this particular bill, mostly because he said the Supreme Court can send an initiative to a district court for fact finding — emphasizing that this creates additional steps.
Sen. Theresa Manzella, R-Hamilton, said she isn’t as concerned about slowing down the review process. “Scrutiny concerning ballot measures is extremely important and needs to be thoughtful. And if that means slowing them down to a degree for the purpose of accuracy, that’s a good thing.
At one point in the hearing, Democratic Vice Chair Andrea Olsen, D-Missoula, brought up the partisan nature of the bill, leading to a brief dust up with committee chair Barry Usher, R-Billings, and Emrich, who brought up the fact that Democrats declined to take part in the interim committee where the bills were first vetted.
“I don’t think [the current system] is being effective,” Emrich said. “I don’t think that it brings solace to the public at large … I think more oversight of the process by the entire court system is appropriate and I think it is effective.”
Elusive definitions of randomness
Emrich also brought forward Senate Bill 41, which he believes is needed to ensure judges are assigned to cases in a “random” way rather than other judges or a court administrator selecting them based on their own preferences.
Emrich said the current system, which “includes spreadsheets,” is not really a random process, but it should be.
Dave McAlpin, the new Supreme Court Administrator, told the committee that out of 56,000 cases filed in district courts last year, there were only 450 substitution motions, less than 1% of the total caseload. He explained that true randomness in judicial assignments could be detrimental and costly, especially in single-judge districts, where a judge will often assign a case to a neighboring judge when necessary.
“We have to have some practicality,” McAlpin said. “If your definition of random includes assigning a Libby judge to a Scoby case, I think the cost to the taxpayers would be prohibitive.”
Narrowing the scope
A third bill presented to the committee, Senate Bill 43, aims to limit the scope of a court’s injunctive powers to the parties of a lawsuit.
Emrich said the goal of the bill was to be as narrowly tailored as possible, so that, for example, if an individual brought suit over potentially unconstitutional actions, the judge could grant an injunction, but it would only be applicable to the individual — not broadly to all Montanans.
Hal Smith, with the Montana Trial Lawyers Association, said the bill “just isn’t good policy.” He used an example from the COVID-19 pandemic that if an individual or business filed suit that a mask mandate is unconstitutional and an injunction were granted, under SB 43, that injunction would only apply to the parties in the lawsuit.
Similarly, Henry Seaton, a lobbyist for the ACLU of Montana, said that the law could lead to “additional and redundant” lawsuits to bring the same relief to multiple parties.
“If a law is unconstitutional to one person, it is likely unconstitutional to everyone,” Seaton said. “For the legislature to place itself as a roadblock to justice for potentially thousands of Montanans amounts to denying those rights altogether.”
The committee discussed adding an amendment to clarify that this bill would only apply to district courts, not the Montana Supreme Court, and injunctive relief would apply within the district. However, an appeal could be made to the Supreme Court in order to apply to the entire state.
Redefining the separation of powers
The final bill before the judicial committee was Senate Bill 44, which codifies the separation of powers doctrine in the Montana Constitution into statute, and defines the powers of the Board of Regents of Higher Education and the Board of Public Education.
“This bill is designed to create a uniform way of looking at our constitutional boundaries within the separation of powers. All those powers are listed in the Constitution,” Emrich said. Many of the same opponents spoke against this bill, with some claiming that codifying so many parts of the Constitution into law laid the groundwork for the bill to be tied up in litigation.
Bruce Spencer, with the State Bar, cited a recent poll from Montana State University that found 90% of respondents felt separation of powers is critical to preserving constitutional rights, but said this was not the right way to do it.
“The fact is, the role of interpreting the Constitution and defining what it says is strictly limited to the courts,” Spencer said. “That’s part of the separation of powers. This bill directly impedes into that role. It is not a proper use or legislative power.”
Sen. Manzella asked Spencer to indicate where in the U.S. or Montana Constitutions it specifically gives the judicial branch that power.
“That has been the standard of the United States since Marbury vs. Madison in 1803. It has not changed,” Spencer said, citing the pinnacle case establishing judicial review.
Manzella, however, pushed back by saying that there are other interpretations of that foundational case, including that James Madison, an author of the U.S. The Constitution, disagreed with the decision.
“He lost, of course he disagreed,” Spencer responded.
In his closing remarks, Emrich agreed with Manzella that the power to interpret the constitutions that was relegated to the court system was “quite frankly, a fallacy.”
“We believe that the Constitution in the State of Montana is a limiting document, that is designed to limit the powers of all branches of government,” he said, and this bill just puts those limits into law.
All four bills will be up for executive action by the Senate Judiciary Committee at a later meeting.
On Wednesday, the House Judiciary Committee will take up five judicial reform bills, while its Senate counterpart will take up two bills that are part of the judicial reform package, and another requiring a citizenship marker on Montana driver’s licenses and identification cards.