Republican Effort to Regulate Courts Fizzles
A 27-bill GOP package to alter the judiciary is barely alive
By Tom Lutey for Montana Free Press
Once thought to be a legislative priority, a Republican effort to regulate Montana courts is going out with a whimper in the final days of the Legislature.
Of the 27 bills crafted by a select committee to “reign in the courts,” only eight remain as the Legislature nears its endpoint. Several attempts to get judicial candidates to declare a political party have died, even though that objective was cited as a priority by Republican Governor Greg Gianforte in his State of the State address. Lieutenant Governor Kristin Juras, a former law professor and 2014 state Supreme Court candidate, testified before the House and Senate judiciary committees in support of partisan judicial races.
State’s Supreme Court Chief Justice Cory Swanson and the Montana Bar Association have cautioned lawmakers against politicizing the judiciary.
“I have personally stated that the judiciary should remain nonpartisan, despite the almost irresistible pull of partisan spending and messaging in these campaigns,” Swanson said in an address to the Legislature in February.
House Speaker Brandon Ler, R-Savage, still bristled at the mention of Swanson’s remarks during a late March interview with Montana Free Press.
“I guess I’ll push back with Chief Justice Swanson just a little bit because he got elected by people that wanted Supreme Court reform, or just judicial reform,” Ler said. “And that’s what the House and the Senate are still committed to bringing, judicial reform. He doesn’t have to agree with us, but that’s what a good majority of people that voted him into office want.”
But Ler said House lawmakers were divided over whether all court races should be partisan. Senate Bill 42, by Senator Daniel Emrich, R-Great Falls, offered partisan judicial races at all levels. The bill passed out of the Senate on a 28-22 vote, but failed 41-59 in the House, where Republicans have a 58-seat majority.
Testifying before the House Judiciary Committee in late March, Emrich suggested freedom was on the line if judicial races weren’t partisan.
“Our founders described the judges in the English courts as black-robed tyrants because their power was unchecked. And I pray that we never get to a day in this state or in this nation that our judiciary’s power is unchecked,” Emrich said. “Right now, it is chaotic, and we have an opportunity to give the power back to the people.”
Later, a Ler bill to allow state Supreme Court candidates to use party affiliation, if they chose to, also died by a 46-54 vote in the House.
Limiting the powers of Montana courts was a low priority for voters responding to a Montana Free Press-Eggleston poll conducted in late January and early February. Only 20% of respondents said Montana courts have too much power and 40% said courts had the right amount of power, while 25% of respondents said they didn’t know. The poll surveyed more than 900 Montanans and has an overall margin of error of plus or minus 4.1%.
So far, just one of the bills drafted by the Senate Select Committee on Judicial Oversight and Reform has been signed into law. House Bill 39, by Representative Tom Millett, R-Marion, repeals a state law banning political parties from contributing to judicial campaigns.
A second bill passed out of the Legislature, Senate Bill 48, by Senator Carl Glimm, R-Kila, removes a ban on citizens discussing complaints against judges before the matter is settled by the Judicial Standards Commission.
The Montana State Bar Association opposed the bill in the House Judiciary Committee on April 8.
“If you do this, judges would be the only profession that would not have confidentiality until a determination is made that a complaint is substantive,” Bruce Spencer, the state bar lobbyist, said. “So, 98% of complaints are dismissed.”
Glimm told the House Judiciary Committee that lifting the ban on speaking about complaints against judges before cases were decided was a matter of free speech. He carried a similar bill in a previous legislative session.
A bill to create a judicial performance review of judges is still alive. Senate Bill 45 sponsor Senate Majority Leader Tom McGillvray, R-Billings, framed the reviews as something voters could refer to. The issue received attention from the Senate Select Committee on Judicial Oversight and Reform, which met for eight months in 2024.
New laws crafted by the Legislature’s Republican majority haven’t fared well before the state Supreme Court in recent years, spurring GOP frustration with the courts that led in part to the formation of that committee. Laws curtailing abortion rights, election participation, or limiting environmental review have been declared unconstitutional. One failed bill this session would have required the Supreme Court to “presume constitutionality of, and deference to, legislative acts,”
There was a bill to audit the Office of Disciplinary Counsel, which last year prosecuted Montana’s Republican Attorney General for undermining public confidence in the judicial system. AG Austin Knudsen refused to comply with a court order in 2021 while representing the Legislature in a subpoena battle with the state Supreme Court. The attorney general also disparaged the Supreme Court justices. The bill failed, as did another one to prevent disciplinary action against attorneys serving in public office.
An attempt by McGillvray to create a governor-appointed “general claims court” as a first stop for cases with constitutional issues died on a tie vote on the Senate Finance and Claims Committee after Democrats and some Republicans questioned the cost of creating a new court when many staffing requests by existing courts were going unfulfilled.
“It’s called out that the salary would be 20% greater than the salary for a Supreme Court justice,” said Senator Chris Pope, D-Bozeman, of Senate Bill 385. “It just doesn’t financially add up.”
Base pay for a state Supreme Court justice is $78.13, according to the state employee data portal.
The 2024 Senate select committee was spearheaded by then-Senate president Jason Ellsworth, R-Hamilton. Ellsworth has since been censured for not disclosing a personal relationship with a friend to whom the senator awarded a government contract.
As a result of the censure, Ellsworth has been barred from attending the Legislature in person. The former president’s Senate Bill 20, prohibiting retired judges from hearing constitutional cases, is one the select committee’s eight surviving bills. The House Judiciary Committee has postponed three hearings on the bill because Ellsworth wasn’t in attendance.
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