Montana Republicans Launch Into Debate Of 27 Judicial Reform Bills
Republican lawmakers spent nine months of 2024 working on bills to reshape the judiciary. Democrats say the problem is GOP legislators passing unconstitutional laws
By Tom Lutey for Montana Free Press
Frustrated by several unfavorable court rulings in recent years striking down laws they championed, Montana Republican legislators have teed up a bucket of judicial reform bills this session to reshape the courts to their liking.
Tuesday, the Senate Judiciary Committee heard some of the 27 pieces of legislation intended to overhaul the judicial branch, while House Republicans gave the initial OK to the first of their judicial bills along mostly party lines, 57-43. Proposals to inject partisanship into judicial races and expose judges to outside review were among the first policies to get hearings. Republican lawmakers spent nine months of 2024 in the interim between sessions working on the legislative ideas.
The first bill to get a floor hearing, House Bill 39, would remove the financial contributor wall between judicial candidates and political parties. Judicial candidates currently cannot accept money from political parties.
“Are we going to have a lot of mailboxes full of flyers and all that kind of stuff? That is not going to happen,” said Representative Tom Millett, a Marion Republican and sponsor of HB 39. “Basically what happens, if we repeal this, then political parties can donate directly to a judicial candidate or a judge, and the limit’s set by the commissioner of political practices.”
Speaking on the House floor before the chamber advanced his bill on a second reading, Millett said the cap for parties would be $84,150 for each of the primary and general elections, the limit political party committees can give to other statewide candidates except the governor.
Representative Peter Strand, D-Bozeman, told lawmakers the bill opened a new avenue for spending in judicial races. He reminded lawmakers that Republican Governor Greg Gianforte in his State of the State speech the night prior bemoaned the amount of outside money in judicial races.
One campaign consultant involved in judicial races, Tim Warner, told Montana Free Press that the proposal would allow political parties to get access to deep discounts offered only to candidates for advertising.
“There is a dramatic difference between the rate for candidates and the rate for independent expenditures, as much as 50% to 75%, depending on the company that owns the cable network,” Warner said.
The spending by political parties and other political action committees in elections is known as independent expenditures. These groups pay full price for advertising, not the candidate rate.
In the Senate Judiciary Committee on Tuesday, reform bills were met with concerns by witnesses who said that the proposals violated the Montana and U.S. constitutions.
Senate Bill 13 would stop lawsuits over constitutional initiatives from going directly to the state Supreme Court, as is currently the case. It drew criticism from groups worried about making it more difficult for the public to directly petition to change state law. Challenges would instead start in district court.
“The ballot measure process has been an important and constitutionally provided process for Montana voters,” said Heather O’Loughlin with the Montana Budget and Policy Center. “Senate Bill 13 adds another step in the process and creates further hurdles for citizens accessing their constitutional right to consider ballot measures.”
The committee meeting was paused so Chairman Barry Usher, R-Molt, could unwind problems with Senate Bill 43, which sought to limit district court rulings on constitutional matters to parties in the lawsuit. That narrow application would mean that the rest of the community would be denied the benefit of a law being ruled unconstitutional, said Al Smith of the Montana Trial Lawyers Association.
“Say you’ve got a vaccine or a mask mandate and a district court makes the determination that it’s unconstitutional, but it’s only five businesses that challenged the mask mandate in court,” Smith said. “So each individual business then in that particular district court area would have to come in now with their own lawsuit.
“That’s not a hypothetical, folks. This is what happened in Flathead County,” Smith said.
A judicial ruling deemed particularly egregious by Senate Majority Leader Tom McGillvray, of Billings, was the March 2024 order striking down election laws passed by the Legislature in 2021. A judge found the Legislature’s efforts to end Election Day voter registration, tighten voter ID requirements and forbid third-party ballot assistance violated the constitutional rights of American Indian voters.
The state Supreme Court had also ruled similar legislation unconstitutional in 2022. The court’s majority then found the Montana Constitution provided more protections than the U.S. Constitution. Justices Dirk Sandefur and Jim Rice disagreed, however, arguing that their peers applied “unrestrained judicial power overriding public policy determinations made by the Legislature in the exercise of its constitutional discretion.”
To Democrats, however, the problem isn’t the courts. Senator Andrea Olsen, D-Missoula, said certain laws passed by GOP majorities violate the U.S. or Montana constitutions, and when Republicans find rulings against them unfavorable, they blame the courts.
“Many of the bills that were passed, we were told in hearings, we were reminded on the floor, that there were constitutional problems with them, and they passed them anyway,” Olsen said of Republicans. “So, is that the court’s fault that they’re finding more unconstitutional bills? Or is it really our fault that we have failed to recognize that when we trample on somebody’s rights, we’re actually trampling on everybody’s rights? The court is going to uphold those rights.”
Two of the three minority Democrats on the Senate Judiciary Committee, including Olsen, are attorneys.
Other bills focus on performance reviews for judges and a chancery court to hear business cases and constitutional challenges to laws.
Democrats declined to participate in the 2024 interim committee that produced the 27 bills concerning the courts. Minority lawmakers didn’t think the Legislature had the authority to affect a coequal branch of government as Republicans were determined to do. Last year’s interim committee was the second of its kind since 2022. In both cases, Republican lawmakers alleged impropriety and overreach by the judiciary.
At the start of the session, Senate Republican leaders suggested they were answering the public’s call for judicial reforms, though the four bills heard by the Senate Judiciary Committee on Tuesday drew only one supporting witness, James King, a Gallatin County man who served six years in prison for threatening a Bozeman municipal court judge over fines in a disorderly conduct case.
What we really need are legislature reform bills. They need to stop trying to undermine the checks and balances in our system, and stop trying to undermine Montana's Constitution, and start working on real problems Montanans are facing. A lack of affordable housing and health insurance, increasing threats from man-caused climate change, property tax relief and etc. The legislature needs to stop obsessing about trans people and get to work.