The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
The division between the Legislature and the judicial branch has been on display in recent months with Republican leadership in both chambers stating that reining in the courts is top of mind this session. However, a new bill brought before the House Judiciary Committee on Wednesday morning added the executive branch into the crosshairs.
The House Judiciary Committee heard a bill that looks to curb executive power and agency overreach by requiring courts take “legislative intent” into consideration when interpreting laws rather than deferring to a state or federal agency’s interpretation of its rules.
Rep. Lee Deming, R-Laurel, sponsored House Bill 52 at the request of the Senate Select Committee on Judicial Oversight and Reform and said the bill will prioritize legislative intent, increase transparency in government actions, and help limit burdensome regulations.
Lyn Hellegaard a former legislator, who served on the Senate Select Committee, said she suggested the bill after looking at similar bills passed in Indiana and Idaho.
“Put simply, this bill requires a judge to examine the laws and regulations without bias towards the government agency’s interpretation of the law or rule, and resolve remaining doubt in the disputes in favor of a reasonable interpretation that limits the agency’s power and maximizes liberty,” Hellegaard said. “I’ve been in government for 25 years, and agencies do misinterpret regulations. This, in my view, gives a level playing field when it gets to the courts.”
According to the Pacific Legal Foundation, a public interest law firm that “defends Americans’ liberties” and testified as a proponent for the bill, a dozen states have ended the practice of judicial deference. Three states — Idaho, Indiana and Nebraska — did so last year following the U.S. Supreme Court decision overturning the federal Chevron deference precedent.
At the federal level, the precedent gave agencies broad discretion to interpret Congressional statues where ambiguous, and it required judges to favor government agencies in litigation. Now, courts have a greater latitude to make judgements on interpreting statutes, taking legislative intent into greater account.
Members of the state’s executive branch spoke in opposition to the legislation.
Speaking for the Governor’s office, Lt. Gov. Kristen Juras criticized the bill for expanding judicial power, ignoring the complicated and nuanced nature of agency rulemaking and characterizing Montana as having an administrative state that needs reining in.
“Let me assure you, under this administration we do not have agencies creating law or exceeding their authority. And if they do, you have given yourself, the Legislature, the ability to repeal, by a bill, any agency rule,” Juras said. “You have in place safeguards to prevent a runaway bureaucracy, which we do not have in Montana.”
One criticism of the overturning of the precedent was that judges often do not have the subject matter expertise to rule on the myriad rules implemented by agencies covering all aspects of government work. Similar arguments were made before the Judiciary Committee.
“We have deference based on our scientific and technical expertise,” said Montana Department of Environmental Quality Director Sonja Nowakowski. “There are numerous instances where agencies have received the benefit of any doubt on factual issues based on deference.”
She cited a recent decision by the Montana Supreme Court on a mine tailing lawsuit that involved “very detailed scientific equations,” to determine the safety of the tailings impoundment.
“We were very pleased to see the court say, ‘We are not scientists and engineers, and we defer to the agency,’” she said.
Other opponents of the bill included representatives from the AFL-CIO and Montana Mining Association, who expressed concerns over unintended consequences.
Labor and unemployment laws are areas in Montana statute that are “relatively broad and vague by nature,” said Jake Brown for the AFL-CIO, a federation of around 38 unions. His example was the Montana Safety Culture Act, passed 30 years ago, which provides broad rulemaking authority for the Department of Labor to establish protocols for specific workplace safety needs and requires employers to develop safety programs.
“If an employee were to sue their employer for enforcing safety hats on the job because they thought that violated their rights, what basis would a judge have to uphold that requirement? There’s nothing in statute that says that you need to wear a hard hat,” Brown said. “But we are able to defer to agency rulemaking in discerning that legislative intent.”
Nowakowski also clarified to the committee that state agencies don’t develop rules “in a vacuum.” Instead, there is an established process, and between legislative sessions, interim committees are able to review and object to proposed agency rules.
In addition to the Pacific Legal Foundation, proponents for the bill included representatives from the Goldwater Institute, a conservative policy think tank, the Coalition for Safety and Justice, and Jeff Patterson, a retired private investigator who raised additional concerns about regulatory overreach.
Juras added that HB 52 “disrupts the separation of powers balance by removing a court’s respectful consideration of an agency’s expertise and long standing practice, which provides predictability to the people appearing before our agencies and boards.”
“We oppose this because it does invade, not only the legislative authority … but also the executive branch authority in implementing your laws, shifting inappropriately even more power to our judiciary,” Juras said.
Other judiciary committee
The House Judiciary Committee also heard three bills related to the judicial branch — one to audit the State Bar of Montana; two aimed at reallocating the Judicial Standards Commission from under the purview of the Montana Supreme Court and change who can lead the commission; and one requiring courts apply a burden of proof “beyond a reasonable doubt” when considering if a law is unconstitutional.