Claims court endorsed by Montana Senate
Appointed by the governor, the court would take on constitutional and asbestos suits to streamline district court dockets; detractors say it’s another attempt to wrest control over the judicial branch
By Micah Drew for the Daily Montanan
District courts in the state of Montana saw more than 57,000 cases filed in 2024, with a record 13,854 criminal cases filed across the state’s 22 judicial districts. The former chief justice of the Montana Supreme Court has described the state’s court system as “stressed,” even as far back as 2019.
To fix that, Senator Majority Leader Tom McGillvray, R-Billings, introduced a bill to create a new intermediate-level court to remove complex civil cases related to the constitutionality of government actions, as well as asbestos claims, from the district court’s purview.
The bill passed the upper chamber 28-22, with four Republicans joining all Democrats in opposition.
The goal, according to McGillvray, is to free up the district court dockets and allow specialized judges to rule on complicated constitutional issues, which would “enhance the efficiency and productivity of the court.”
“I think the definition of insanity is keep doing the same thing over and over, you’ll get the same result, which is a clogged up court system that is behind on dealing with these civil cases that need to be addressed in an efficient manner,” McGillvray said during a hearing before the Senate Judiciary Committee on March 4.
The new government claims court created in Senate Bill 385 would have concurrent jurisdiction with the state’s district courts over alleged illegality or unconstitutionality of government actions, including legislative actions, administrative rules, citizen-passed ballot measures and agency permitting actions. The three justices would be appointed by the governor, rather than elected as district court and state supreme court justices are currently, and serve six-year staggered terms.
McGillvray listed off the number of additional district court judges needed to cover the existing workload — 11 across the state including five in Yellowstone County — as justification for the new court.
But opponents of the new court said McGillvray’s bill wasn’t adequately addressing the issue among district courts, took power away from the judicial branch and Montana voters, and was just a reaction to the Legislature losing several court cases over laws passed during the last two sessions.
Anne Sherwood, representing Friends of the Third Branch, an educational organization focused on the state’s judiciary, raised concerns about how many cases the court would actually divert from district court, saying that constitutional challenges are a small portion of the dockets. She also pointed out one major refrain from the Republican majority’s judicial reform push has been enhancing accountability for judges.
“These judges are going to be appointed by the governor. They’re not going to be accountable to the people of Montana,” Sherwood said. “These judges are going to be making decisions that have statewide impact, and people are not going to be able to vote for or against those judges. That’s huge.”
Proponents for the bill included the Montana Family Foundation, Americans for Prosperity-Montana and an attorney representing himself.
Derek Oestreicher, chief legal counsel with the Montana Family Foundation, said the group doesn’t typically weigh in on judicial bills, but felt the bill provided an opportunity to address a strained court system where judges are stretched thin with growing caseloads, especially criminal, neglect and dependency cases.
“These cases demand careful attention and swift resolution, particularly when vulnerable children and families are involved,” Oestreicher said, adding the Foundation sometimes saw cases take years to resolve. “The burdens on our court system have resulted in delayed justice far too often. This bill is a win-win for Montana.”
On the other side, Al Smith, representing the Montana Trial Lawyers, said the group opposed the new court and would rather see the legislature direct funds to the district courts.
“You’re taking powers that are granted to district courts and handing them over to an appointed, not elected judiciary,” Smith said. “Who came up with this idea? Was it the courts? Was it the people that used the courts? Was there any deliberative process to determine that this is the answer to our problems?”
A Court of Chancery and Business
The bill came out of the interim Senate Select Committee on Judicial Oversight and Reform, but in another form.
Originally introduced as Senate Bill 52, a proposed “Court of Chancery” would have also been a three-judge governor-appointed court, but would have overseen business law, land-use law and constitutional law.
In an early press briefing with Senate GOP leadership, McGillvray emphasized that the Chancery Court was “basically a business court.”
“The whole goal of this, of course, is to expedite business cases and bring them up to the surface and provide high quality judges where they’re predictable, they’re ruled by the rule of law consistently and accurately, and attract businesses in the state of Montana,” McGillvray said.
The bill came close to getting a hearing in the Senate Judiciary Committee — the Senate GOP sent out a press release about it on February 5 — but towards the end of February, McGillvray withdrew it.
He said the court’s jurisdiction was too broad and unwieldy, and that the Governor’s Office had concerns, so he reduced the jurisdiction.
But the junque file for SB 52 — documents detailing comments and emails among legislators, staff and consultants during the bill drafting process — indicates a court focused on constitutional claims was always the goal.
In an email to McGillvray, Rob Natelson, an attorney and former UM law professor who was an advisor to the Judicial oversight committee and contracted by the Legislature for $10,000 to help draft some of the judicial reform bills, outlined his consideration for the court.
“The new court’s jurisdictional scope should cover areas in which the existing system has been a problem in Montana,” wrote Natelson. “The poor quality of adjudication of constitutional cases has been a MAJOR problem in Montana.”
Another draft version of the Chancery Court would have only given it jurisdiction over constitutional claims and environmental lawsuits involving the Montana Environmental Policy Act — the law upon which a recent controversial court case, Held v. Montana, was predicated, and an order overturned two legislative statutes.
The new bill draft, SB 385, was requested by Senate President Matt Regier, R-Kalispell, using leadership privileges to submit a late draft request. McGillvray carried the bill and it passed through the Senate Judiciary Committee on a 5-3 party-line vote.
Floor Debate
Debate continued on the Senate floor Wednesday, mostly along partisan lines. Democrats, and a small number of Republicans, said it was adding partisanship to the judiciary and ignoring the existing problem with district court case loads, while a majority of Republicans lauded the effort to streamline the system.
“This work can help with those district court demands,” said Senator Barry Usher, R-Billings, who chairs the Senate Judiciary Committee. “I think this is a great deal, I think the sponsor’s done a lot of research. We spent a lot of time in the judicial select committee on this and I think it’s a great bill.”
Republican Senator Russ Tempel of Chester said he opposed the bill for its costs.
The fiscal note indicates that the court would cost the state a million dollars in fiscal year 2026, $3.5 million in 2027, and roughly $2 million each of the next two years.
“I was sent here to reduce government, not increase government,” Tempel said.
According to the bill’s fiscal note, each judge would be paid $240,000 — 20% higher than associate judges on the state’s supreme court.
McGillvray said the higher salary was not meant to disparage sitting supreme court justices, but to properly incentivize highly qualified, specialized judges for the new court.
“I think (Supreme Court judges) should be paid higher too. We need to start paying the judges more, because we need good judges and we need to attract high-quality attorneys,” McGillvray said.
Salaries and expenses for the government claims court would come from the state’s general fund.
Other opponents latched onto an amendment added in committee to put asbestos claims under the court’s jurisdiction.
Currently, asbestos-related claims, a major issue for residents of Libby who have been exposed to asbestos-tainted vermiculite mined near the town, are handled by the Montana Asbestos Claims Court, created in 2017. Hundreds of cases were moved from district courts to the asbestos court, and several lawyers who represent asbestos victims testified against the bill in committee.
Three Democratic senators said they’d received emails from residents of western Montana, specifically near Libby, worried the bill would affect the asbestos cases currently active.
McGillvray said he added asbestos claims to the jurisdiction of the government claims court at the request of current Montana Supreme Court Chief Justice Cory Swanson, and that active cases would just have the option of changing venue.
Senator Cora Neumann, D-Bozeman, said the bill should be considered in the context of dozens of other judicial reform legislation pushed by the GOP-majority this session.
“I can see how when bill after bill is introduced on the same topic, because it’s a high priority for part of the caucus, you start to lose track, almost,” Neumann said. “At the end of the day, this is just another attempt to control the courts, which our Chief Justice asked us not to do.”
In committee, McGillvray called opponents who testified against the bill as “hard-left dark money groups that like the status quo,” and on the Senate floor he pushed back against detractors again, saying many positions taken by opponents were red herrings.
He said an efficient and consistent justice system will bring business and money to Montana.
“I think this is a great idea, whose time was a long time in coming. It’s time to move forward with fresh ideas,” McGillvray said.
The final vote tally wavered a bit around the pass-fail margin before ending at 28-22, with Republican Senators Mike Cuffe, Gregg Hunter, Jeremy Trebas and Tempel joining all Democrats in opposition.
The bill was referred to the Finance and Claims Committee for further consideration.
Why do Republicans so hate the vital system of checks and balances created by our Founding Fathers?