Commentary: Rules for Thee but Not For Me
Senate Bill 21 seeks to give the Administrative and Legislative branches the power to override a Judicial branch order compelling them to follow the law and uphold their oaths of office
By Denise Rivette
Senate Bill 21, a bill that could allow the Administrative and Legislative branches to work together (without this law, an act that might be considered collusion) to void writs of mandamus issued by the Judicial branch mandating them to perform an act required by law or to respect the rights of others, is coming before the Senate Judicial Oversight and Reform Committee on Tuesday. Senate Bill 21 - “AN ACT ALLOWING LEGISLATIVE AND EXECUTIVE LEADERSHIP TO VACATE A WRIT OF MANDAMUS BY JOINT PLEADING; PROHIBITING A CONTEMPT OF COURT FINDING; AND AMENDING SECTION 27-26-102, MCA” is sponsored by Senator Barry Usher.
Montana Code Annotated Section 27-26-102 (MCA §27-26-102) is presented in its elegant, concise and unequivocal entirety below:
Montana Code Annotated 2023
TITLE 27. CIVIL LIABILITY, REMEDIES, AND LIMITATIONS
CHAPTER 26. MANDAMUS -- WRIT OF MANDATE
Part 1. General Provisions
27-26-102. When and by whom issued.
(1) A writ of mandamus may be issued by the supreme court or the district court or any judge of the district court to any lower tribunal, corporation, board, or person to compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is unlawfully precluded by the lower tribunal, corporation, board, or person.
(2) The writ must be issued in all cases in which there is not a plain, speedy, and adequate remedy in the ordinary course of law.
Applying the law to a fictional scenario, imagine you own your home on a few acres nestled up into State-owned land and you receive a notice from the State Land Board informing you that the State will be building a road across the middle of your land and taking down some of your fencing to create easier access to some feature on their land, and road construction will begin in three days. The above law allows for you to appeal directly and immediately to the Judicial Branch for a writ of mandamus (or writ of mandate) that requires (mandates) the State’s Administrative Branch to cease (or not start) construction and to follow the law and respect your property rights.
A writ of mandamus is sought when going through the normal legal process would allow damages to happen before the case wends its way to a court decision.
Senate Bill 21 would add the following to MCA §27-26-102:
(3) (a) When a writ of mandamus is issued to compel an elected official listed in Article VI, section 1, of the Montana constitution, an individual legislator, or the legislature as a whole or in part, to produce documents or to perform or not to perform an action, the president of the senate or the speaker of the house of representatives may file a pleading that vacates the writ in the court that issued it. The filing must be signed by either the president or the speaker and either the governor or the attorney general and be filed within 10 business days of the writ's issuance by the court. (b) When a writ is vacated pursuant to this subsection (3), the writ may not be enforced. (c) An elected official for whom a notice vacating a writ of mandamus is issued pursuant to this subsection (3) may not be found in either civil or criminal contempt of court."
If Senate Bill 21 were to be passed into law, the Administrative and Legislative branches will have the ability to create a document that voids a court order pertaining to them and provide themselves immunity from any recourse. It would be impossible for a citizen through the Judicial Branch to compel elected officials of the Administrative or Legislative branches to follow the law or do their duty. In the above scenario, there would be nothing you could do to stop the State from tearing down your fences and cutting a road through your property. But, if you have the time and resources, you would be able to file a civil lawsuit against the State after the fact.
SB 21, as drafted, may raise a potential separation of powers issue to the extent it allows legislative and executive officers to vacate a writ of mandamus that has been issued by a court of law.
The separation of powers clause of the Montana Constitution at Article III, section 1, provides:
Separation of powers. The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
When the branches of government are equal, each branch can hold the other branches accountable to their duty to follow the law and to their oath to support, protect and defend both the Montana State Constitution and the U.S. Constitution.
Senate Bill 21 will have its first hearing in the Judicial Reform Committee on Tuesday, February 4. Your representatives will only know your thoughts on the issues if you share those thoughts with them.
If you want to contact legislators in other districts, you can find the contact information for all Montana state legislators at https://www.legmt.gov/legislators/.
Our form of government has always had a vital system of checks and balances. Senate Bill 21 is un-American. Period.