Judicial Oversight Committee Asks for 27 Bills; Dems and Racicot Call Them Attacks on Judiciary
Committee’s final work includes bill aiming to outline separation of powers in statute
By Blair Miller for the Daily Montanan
Republicans on the Senate Select Committee on Judicial Oversight and Reform will have 27 bills ready for introduction in the 2025 legislative session that starts in January, several of which seek to move some power away from the judicial branch or make judicial elections partisan.
The committee wrapped up what is likely to be its final meeting December 4, just hours after Democrats held a news conference alongside former Republican Governor Marc Racicot in which they pledged to fight against the bills coming out of the committee, calling them political attacks on the judiciary. Democrats are in the minority in both chambers and chose not to participate in the committee because they did not want to legitimize its efforts, they said.
The committee’s members, however, praised their work and that of their staff after seven months of meetings and bill drafting.
“It was a big lift. Got a lot of work accomplished in a short amount of time. I’m anxious for the bills coming out of here. We have some good legislation,” Senate President and Committee Chair Jason Ellsworth, R-Hamilton, told the oversight committee to finish its 12th meeting since April.
The committee’s final act – barring signing off on a report summarizing the committee’s work – was to approve for drafting three more bills on top of the 24 already ready to go or which are in process. One attempts to outline in statute what the Montana Constitution says about the separation of powers among the three branches of government. The other two seek to make changes to judicial recusal and to limit the effect of an injunction only to the parties involved in the case.
While most of the committee’s meetings have been day-long or two-day affairs full of presentations on parts of the judicial branch and discussion over lawmakers’ many proposed bills, Wednesday’s meeting was much shorter, and most of the discussion surrounded the bill on the separation of powers, which will be carried by Senator Daniel Emrich, R-Great Falls.
Emrich said the bill is “one of the most important bills you may see this session.” Deputy Director of Legal Services Jaret Coles told the committee the version they were looking at was his seventh draft of the measure, which over 12 pages creates several new sections of law that describes the baselines of each branch’s powers according to the Constitution, he said.
“I think that the most important part about this entire bill is that it creates boundaries and fences that every branch can see,” Emrich said. “And so, there’s a lot of question on where those boundaries are between the branches of government, and I think this puts some pretty good definition on it.”
Senator Tom McGillvray, R-Billings, who will be Senate majority leader come January, asked Coles if putting some of the language that involves legislative rules into statute could create legal issues for the legislature because the proposed bill directly outlines its duties.
Coles said that whether rules, which are the sole responsibility of the legislature, trump statute or vice versa has been interpreted differently by different courts and states, and that he included “limited language” in the bill to try and avoid legal issues.
“They’re the legislature’s rules. They’re not supposed to be interpreted by any other branch,” Coles said. “So, I think you’d have to get to your questions, look and see, is there any of these areas that seem like they would restrict the legislature’s powers? I don’t believe so, but you raise a good question. That’s always going to be, you know, a struggle.”
Emrich’s other bill, which aims to make injunctions apply only to the parties in a suit and not to the entire state or court system, would “prevent the court from offering a blanket injunction that affects the entire state of Montana,” he said.
Emrich told the committee that he believed the bill would allow the legislature to weigh in when it believes the court is “misinterpreting” the state Constitution and ensure any relief granted from a bill being declared unconstitutional would be narrowly tailored. He claimed that a court enjoining a portion of a bill violates the separation of powers because a court is altering a statute.
“This gives the legislature the ability to say, ‘OK, if there is an issue with the statute, we can go back and fix it,’” Emrich said. “And if there’s not, or if we need to restate it in a different way, it gives us the ability to do that. So, it really gives the legislature a seat at the table when it comes to constitutional review.”
Ellsworth pointed out that many bills already have severability clauses built in that say that the rest of a bill can stand even if one portion of them is found unconstitutional, and wondered if the “knife would cut both ways” because the legislature might have to defend a bill in every district court in Montana. Moreover, he added, a district court decision still may be appealed to the Supreme Court, whose ruling would bind district courts across the state.
Emrich responded by saying he believes courts, through judicial review established by Marbury v. Madison in 1803, are abusing their authority.
“I think it opens up new territory, but it’s also opening up old territory where the courts really never had any authority to do this for quite a long time,” he said. “I believe us as a nation survived just fine for quite a long time, and the state survived just fine without the courts stepping into this arena.”
Group Including Democrats Says Committee Aiming to Pass More Unconstitutional Bills
Earlier Wednesday, a panel of two legislative Democrats, Racicot and former First Judicial District Court Judge Jim Reynolds, who all have experience as Montana attorneys, said the committee was knowingly pushing out more unconstitutional bills as it responds 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 Senator-elect Laura Smith, D-Helena.
Smith said she expected lawmakers regardless of party to vote against bills during the session that “clearly violate” Montanans’ constitutional rights, lest those bills also end up back in court being defended by the state.
Racicot, rebuked by the Montana GOP last year and who spoke up against what he said were attacks on Montana’s Constitution during the 2023 session, said a “faction” of legislators was trying to exercise complete control over the judicial branch and “threatening the demise of democracy and ultimately our way of life.”
“These proposals that have been discussed … are simply extremist measures offered for the convenience and for the ultimate satisfaction of individual groups within the legislature,” he said of the oversight committee’s efforts.
Representative-elect James Reavis, D-Billings, a public defender in Montana for a decade, talked mostly about the committee’s bills seeking – as some bills that failed last session did – to make judicial candidates declare a party. He said having nonpartisan and impartial courts is key to the principle of justice, as someone facing a judge of an opposing political party, for instance, might not feel they were afforded due process based on their politics.
“That’s not a future for Montanans that I want and I don’t think it’s a future Montanans want,” he said.
While nearly every bill from last session that the group on Wednesday said attacked the judiciary failed, they said that some efforts to pick away at the Constitution take time. Smith said nonpartisan people and groups have been taking notice of the wave of bills out of the oversight committee and plan to fight them during the upcoming session, and that she believes her colleagues will take notice.
“Our colleagues in the House and Senate are thoughtful people who will have conversations with us about the impact of what these laws will actually do, and so I am hopeful in that regard,” she said. “But at the same time, the sheer volume and content of these bills is extremely concerning.”
Why are Republicans so fearful of the checks-and-balances so vital to our nation?