Republican leaders outline plan for judicial reform during 69th legislature

A slew of judicial reform bills will be introduced during the 69th Legislature including some aimed at the Montana Supreme Court. The state high court’s chambers are pictured here. (Photo by Eric Seidle/ For the Daily Montanan).

Montana Senate President Matt Regier, R-Kalispell, doesn’t believe the tension between the courts and the state legislature should be characterized as a war between two coequal branches of government; however, he does believe that lawmakers have an obligation to check the power of the judicial system during the upcoming legislative session. 

Speaking at a press conference with Speaker of the House Brandon Ler and two additional members of the Republican leadership, Regier said that when the 69th Legislature convenes next week, “top of mind here for the Republican Majority is judicial reform.”

“Here in Montana, it’s pretty obvious that we are here to legislate, we’re the legislative branch. That’s obvious to us. It’s obvious to Montanans, but not quite so obvious to our judicial branch, who has been legislating,” Regier said. 

Regier derided recent actions taken by the state’s judiciary including the recent Montana Supreme Court decision in Held v. Montana, which Regier characterized as inventing a “new and completely unenforceable policy;” the “weaponization” of the judicial branch in bringing charges against Republican Attorney General Austin Knudsen; and a district court decision that blocked housing reform bills.

He also pointed out that the Montana Constitution contains 22 instances in the section establishing the judiciary that reference a deference to the legislature or law. 

“We are three branches of government with checks and balances. Nobody’s independent of anybody, so that attitude that has been in the judicial branch needs to change,” he said. “We’re just standing up for the people of Montana and the state government as founded.”

Speaker Ler decried the “egregious overreach” of the judicial branch and gave his own list of grievances, including several cases of alleged judicial misconduct, decisions related to transgender procedures and the Montana Bar Association’s alleged endorsement of partisan attacks against Republican officials. 

“This is not an exhaustive list,” Ler said. “These are just some of the examples that illustrate the systematic problems with the judicial branch. Over time, these issues have compounded, creating unprecedented and harmful precedents that could take years, if not decades, to undo.”

Democrats, though, have resisted many of the GOP efforts to reshape the judiciary, pointing out that many of the bills passed by the Republicans in previous sessions haven’t been upheld because they violate the state’s Constitution rather than creating new law. Furthermore, Democratic legislators  declined to participate in the Judicial Oversight Committee because they believe the committee’s formation and objectives are an attack on the judiciary.

At a news conference about the committee’s list of bill drafts last month, Sen.-elect Laura Smith, D-Helena, said the committee was pushing out more unconstitutional bills in response to courts finding prior bills passed by the Republican-led legislature unconstitutional.

“Our constituents have a right to ensure that their taxpayer money is being used with integrity, and now what we have is a small group of individuals pointing their fingers at the court for doing its job, upholding your individual rights under the Constitution,” said Smith, formerly in the House.

Former Republican Gov. Marc Racicot, who has been rebuked by the state GOP and has repeatedly spoken out against the party, said at the conference that some legislators were trying to wrest control of the judicial branch and “threatening the demise of democracy and ultimately our way of life.”

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Among the actions the House will take to address Republican concerns is a bill to appoint two new members to the Judicial Standards Commission — which disciplines and recommends removal of judges for misconduct — as well as move the commission under the purview of the Department of Justice, rather than under the Montana Supreme Court. Lawmakers have requested six additional bills to revise the commission. 

At the heart of the judicial reform outlined by Republican leadership are 27 bills that came out of the Senate Select Committee on Judicial Oversight and Reform. 

Senate Majority Leader Tom McGillvray, R-Billings, who served on the committee and will be carrying several bills stemming from its work. which he said will “be beneficial to the courts as well as the people of the State of Montana.”

One bill, Senate Bill 45, will create a judicial performance evaluation committee by which Supreme Court, district court and other judges can be evaluated. McGillvray equated these reviews to performance evaluations teachers must undergo and indicated that evaluations would essentially give judges a scorecard that will be used to inform voters during elections. 

Additional bills are aimed at making judicial elections partisan by requiring party ID for all judicial candidates allowing party endorsements, a common focus by the state GOP in recent years. A bill that failed to pass during the 2023 session was opposed by the Montana Trial Lawyers Association, Montana Judges Association and Montana State Bar Association. 

Twelve lawmakers also called for a special session in May of last year seeking to allow Supreme Court candidates to declare a party affiliation ahead of November’s election, which had two races for the highest court.   

Additional judicial reform bills that will be introduced this session include the creation of a Chancery Court to hear business, land usage and constitutional cases; audits of the State Bar and the Office of Disciplinary Council; a bill requiring courts to not defer to agency interpretations of law but defer to legislation; and a bill establishing a “beyond a reasonable doubt” burden of proof for claims of unconstitutional legislation. 

“There is a pretty strong sentiment that (judicial reform) needs to happen,” Regier said. “We’re pretty jealous of the legislative branch’s prerogatives, and that has been overstepped by the judiciary. We’re looking forward to getting back to state government as founded.”

Regier said he is confident that all 27 major judicial reform bills will make it through the Republican-controlled legislature and pass through the Governor’s Office, and said he hopes that Democrats in the legislature will join in the efforts. 

“This is not a red or blue issue,” he said. “This is really about the legislative branch legislating, the executive branch executing and the judicial branch adjudicating.”