Regier’s Counsel Conundrum
The legislative leader first hired his own special attorney in 2023, even as a law to create the position died
By Tom Lutey for Montana Free Press
As Montana House speaker in 2023, Matt Regier hired a private attorney to serve as his partisan lawyer.
State law didn’t allow the speaker to have his own special attorney; he had to share one with the Senate president. But Regier had a bill to change that. The Legislature just needed to pass House Bill 260, allowing each chamber’s leader to have their own exempt personal counsel. If the bill failed to become law, he would have no authority to independently contract the attorney, beyond purchases of less than $10,000.
The bill died a procedural death on the last day of the 2023 session. By that time, attorney Abby Jane Moscatel had been working for Regier for three months. On government paperwork, she had called herself the “Chief Legal Counsel to the House Majority” since mid-January.
What started in that 2023 session, according to records gathered by Montana Free Press, were taxpayer dollars paid to Moscatel for work she did for the now-Senate president. The work includes tasks routinely done by other government employees and legal work that didn’t fit the scope laid out in the law cited in her contract. There was also a contract signed only after the work was done. The total payout from public funds for work during the 2023 session and for two contracts in 2024 was $22,970.
A message placed with Moscatel’s office hadn’t been returned by late Monday morning.
Moscatel’s title projected authority and leadership, though the billable hours for the 2023 session translated to $5,020. The low-dollar amount meant Regier could employ the partisan legal advisor without a contract and, according to the Legislative Services Division, without the signature of then-Senate President Jason Ellsworth, R-Hamilton.
Legislative Services Deputy Legal Director Jaret Coles in a Feb. 27 interview — in which Regier participated — said he would have “strongly encouraged” that the House speaker and Senate president both sign a Moscatel contract had the amount hit the $10,000 threshold at which contracts are required.
Coles equated Moscatel’s work for Regier in 2023 as a sort of test run while the speaker tried to pass his bill to create his own legal counsel position.
“I know that there was a bill, obviously, in the works that died, and I suspect that, you know, this individual is being tried out as well to see if that individual performed in the session,” Coles said.
Regier’s bill would have provided “retroactive applicability” for “exempt personal legal staff hired during … the session” and would have been “effective on passage and approval,” the text reads.
Moscatel’s invoices show Regier was looking for an attorney to work on conservative culture issues. In early testimony advocating for HB 260, he told fellow lawmakers he wanted access to a “second opinion” and downplayed the partisan feature of the job.
In late 2021, Moscatel made a splash in conservative circles by questioning whether COVID-19 vaccine mandates were constitutional and challenging mask requirements at a public school in Lakeside, where she resides. Three years later, Regier also used Moscatel for a private lawsuit.
In Lake County, he and others challenged the Secretary of State’s certification of two 2024 ballot initiatives, Constitutional Initiative 127, which would have required a majority vote share to win an election, and Constitutional Initiative 126, which would have created a non-partisan four-candidate primary in statewide elections.
When asked if state funds were used to pay for the lawsuit, Regier replied in a Feb. 27 interview: “There’s no invoices.” Pressed on whether he was confirming that state funds weren’t used, Regier refused to say. “There’s no invoices, it wasn’t billed.”
Regier said Moscatel is “very competent” and followed up by saying “I would equate that to conservative. When we’re looking for political advice, those are few and far between.”
During the 2023 session, Regier tasked Moscatel with reviewing “HB 359, draft and amendments” to “determine state and national trending language and constitutional concerns, provide analysis and attend meetings and provide wordsmithing for new amendments.” House Bill 359 was a bill to prevent minors from attending drag shows. It saw intense debate during the 2023 session and was later challenged in court. Moscatel’s work on the subject cost the state $1,200.
“Wordsmithing” amendments is a core part of the work done by already-employed legislative legal staff, whose jobs include drafting bills and amendments.
Moscatel’s work, according to an invoice, also included a review of an “abortion dismemberment” bill draft carried by Regier, as well as a memo on the “abortion 6pak,” a collection of abortion-regulating bills in 2023.
Legislative leaders did not have special counsel until 2021, when lawmakers created an investigative attorney position jointly answerable to the Senate president and House speaker. Unlike other attorney roles within Legislative Services, the position was also partisan, as leaders in the House and Senate at that time, and are today, Republican.
The job description, according to the law authorizing it, was to “investigate and examine state governmental activities” and inspect the “records, books, and files of any department, agency, commission, board, or institution of the state of Montana.” The management structure required the House speaker and Senate president to sign off on contracts and payments in tandem.
The first such special counsel was Abra Belke, who also served as chief of staff in the Montana Senate in 2021 and special counsel through June 2023. It was Belke who petitioned for emails from the judicial branch in 2021, an early step in the battle between the Legislature and the Montana Supreme Court over lawmakers’ subpoena powers. Belke also investigated Attorney General Austin Knudsen and the other elected officials who intervened when a Helena hospital refused to administer veterinary medicine to a dying COVID-19 patient.
Belke appeared to be well-liked by the Senate leadership: in his farewell speech to the 2021 Senate, then-President Mark Blasdel, R-Kalispell, called Belke his “conscience.”
“Every time I’d get over my skis, she’d bring me back in,” Blasdel said.
Belke recalled to MTFP being approached by Regier a couple of times in 2023. She might have been too moderate, she said, for the then-House speaker. Belke has described herself as a “medium-pink Republican” in blogs about her politics.
SCOPE OF LEGAL WORK
There are state contracts for Moscatel’s work in 2024, but the scope of the work in the contract doesn’t line up with the legal authority cited in them. The legal authority for the taxpayer money used to pay Moscatel states that it must be spent on “intervening, as of right, individually or jointly, in declaratory judgment actions involving alleged constitutional or statutory violations of state law.” The law requires legislative leaders to become parties in the lawsuits. But that’s not what happened.
A May 2024 contract in which Moscatel was assigned to “provide legal research on the topic of state and federal immigration laws” includes no work covered by the legal authority cited to authorize the contract.
The law, MCA 5-2-107, justifies the expense by allowing the Senate president or House speaker to formally participate in court cases involving declaratory judgments — essentially, lawsuits that go before the Montana Supreme Court. The law also applies to primary sponsors of legislation, and it clearly states when taxpayer dollars can be used to cover the work.
Regier requested the May work in preparation for a proposed special session on immigration, this after a Venezuelan migrant family’s relocation in Flathead County incensed state and federal Republican politicians who — without proof — blamed then-President Joe Biden’s administration for the family’s relocation. Regier’s call for a special session was one of three in the spring of 2024, and came just as primary election voting started.
In his role as House Speaker, Regier put Moscatel to work and after that called then-Senate President Jason Ellsworth, R-Hamilton, because state law required that a contract for special counsel be signed by both men. Ellsworth said that while he signed the contract, he never asked Moscatel to do any work.
Ellsworth told MTFP in a recent interview he didn’t support a special session, which he said seemed more intended to drive voters to the polls than to get state lawmakers to the Capitol for work on immigration.
Ellsworth told MTFP on February 27 that he was worried that if the special session did happen, it would derail the months-long work of his Senate select committee to limit powers of the judiciary.
In the interview, Ellsworth produced text messages between himself and Regier from May 6, 2024. The text messages indicate that Regier’s request of Ellsworth to co-sign the contract authorizing the immigration research came after Moscatel had done $2,550 worth of work, according to the lawyer’s invoices.
Ellsworth responded to Regier’s request: “absolutely fine. We are a team.” Ellsworth is currently under investigation by the Senate Ethics Committee for not disclosing a personal business relationship with a contractor he attempted to award $170,100 in work in late December without putting the job out to bid.
According to documents provided to MTFP, Regier and Senate Majority Aide Rhonda Knudsen in January asked Montana’s legislative auditor to investigate Ellsworth. The investigation resulted in allegations that Ellsworth abused his political power, a misdemeanor that is now being investigated by the state Department of Justice, which is overseen by Attorney General Austin Knudsen, the Senate majority aide’s son.
Regier and Ellsworth didn’t sign the immigration work contract until after the end of May 2024, and Moscatel didn’t sign it until June of that year.
The details in the invoice are vague:
“Legal Research Re Legal issue: $1,600.”
“Prepare Memorandum to speaker Re Legal issue: $800.”
In six entries, immigration is mentioned just once for a half-hour of work. The total bill is $3,550. None of the May 2024 work fits within the funding authority cited, which is also the funding source cited for a contract with Moscatel for work that February.
Coles, the legislative lawyer, defended the contracts in the February 27 interview by saying that the “scope and the duties assigned matter more than the legal authority cited for doing the work.”
Other attorneys familiar with state contracts told Montana Free Press that coloring outside the lines of the cited contract authority shouldn’t be permitted. Sources included state government attorneys who would speak only on background for fear of retribution, plus Jesse Laslovich, a former U.S. attorney, who was once chief counsel for Montana’s state Auditor.
“The scope of the contract must be consistent with the statutory authority, whether it’s a public or private contract,” said Laslovich, who is also a former Democratic state legislator. “MCA 5-2-107 gives the Senate president or speaker the ability to hire a lawyer to intervene in litigation. Intervention in the legal world means a third party formally intervening in litigation. And if the attorney did so here, then it would be consistent with the statute. If she didn’t, it appears the scope and duties exceed the statutory framework.”
Coles said he writes the contracts used by the legislative leadership and tends to reuse them.
The February 2024 contract with Moscatel, which cites the same funding authority as the May 2024 special session research contract, concerns Held v. Montana, a landmark environmental case in which 16 young adults successfully sued Montana for ignoring climate change when addressing the environmental risks of state-permitted power plants, refineries and other projects. The speaker and president didn’t become parties in the lawsuit before the state Supreme Court. Instead, they filed a “friend of the court” brief, for which Moscatel was paid $15,000 from a legislative branch account for “special counsel for legislative leadership and the Committee on Judicial Accountability.”
The difference between becoming a party and writing the court a letter is significant. Parties to a lawsuit present evidence, defend their positions and question opponents. To be accepted by the court as an intervenor is to be recognized as someone with a significant interest in the outcome. An intervenor’s arguments must be considered by the court when making a ruling.
“The way most lawsuits work, you’ll have the plaintiff, the defendant is the state of Montana. And then we frequently allow people who have interests in litigation to intervene as additional parties in litigation,” then-Senator Steve Fitzpatrick, a lawyer, said in 2023. “So, you would be an intervening party, and in that circumstance, we’d be able to do what other parties do, send motions, file briefs and so forth.”
In the February 27 interview, Coles said it’s his fault if the authority cited in the contract doesn’t match the scope and authority of the work.
“I drafted the contract. So, I would say that, you know, not to throw myself under the bus here, but if there was an issue with the scope and the authority, that would have been my purview.
“I see that the legislative leaders have the ability to do that with an amicus brief, regardless of whether or not the contract says that,” Coles said. “The scope is clearly defined that they could do that. I mean intervention is just one of the things … I’m trying to think why I would have put that one there. I don’t know.”
SENATE BILL 450
Coles didn’t mention to MTFP on February 27 that in the week leading up to the interview, he had written a draft for Senate Bill 450 specifically providing legislative officers with the right to participate as amicus curiae in cases involving the interpretation of legislative enactments. The bill is carried by Senator Josh Kassmier, a Fort Benton Republican who is on opposing sides with Regier in the intra-party power battle that’s jammed up the state Senate this year.
On March 3 when the Senate Judiciary Committee heard SB 450, Regier — who does not sit on the committee — participated in the hearing, questioning the motives of the original requestor, House Speaker Brandon Ler, R-Savage, and sponsor Kassmier. Regier insisted the Legislature can already file amicus briefs, but Kassmier said it was not clear.
“Under this bill, legislative leadership may use funding provided by the Legislative Council or through legislative funds. Given the heavy litigation climate involving our work, it is important that Montana and federal courts understand the point of view of the Legislature in our legislative goals and objectives,” Kassmier said in the hearing. “Amicus briefs are a key way to ensure our voice is heard in the judicial process”
Regier didn’t appear to buy Kassmier’s stated motives for the bill.
“I sat through an interview with the press on a hit piece that they were trying to do. It was about amicus briefs,” Regier said. “So, now I’m very concerned when the House majority leader, who is on the junque files on this, files a bill that’s unneeded.
“This seems 100% political, and I just want to go on the record here. I’m tired of that, especially in our own party,” Regier said. “And to bring something like this at the very end, 11th hour, using a gold bullet on something that I’ve already gone through the ringer on.”
Junque files are the public files containing information about how a bill is drafted.
After questioning Kassmier about whether anyone other than the House speaker was involved in the bill, Regier handed members of the committee an analysis by Coles stating that the amicus, or “friend of the court briefs,” are common. Coles cites in contracts the intervention authority authored by Fitzpatrick “simply to show that legislative leaders have far greater authority under current law than submitting an amicus brief,” the memo reads.
The March 2 analysis doesn’t reflect the uncertainty Coles expressed in an interview with MTFP three days earlier.
The Senate Judiciary voted to table SB 450 after Regier spoke, citing Coles’ memo.
In January of this year, Moscatel secured her third state government contract as special counsel to legislative leadership. The maximum payout is $40,000. Her past work for the Legislature was cited as justification for Regier not soliciting other attorneys. The cosigner on her new contract is House Speaker Ler.
Regier declined to say in the February 27 interview what Moscatel is working on, stating that there were no invoices submitted yet. The Senate president has also proposed new law granting legislative immunity to his staff, including special counsel. The bill died 26-24 on second reading Wednesday. [District 28 Senator Forrest Mandeville voted Nay.]