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Week 16 — Separation of powers and the future of Colstrip
As of midday Friday, 1,297 bills have been introduced and at least 197 have been signed into law. This week we’re watching a mounting dispute over separation of powers between the Legislature and the Montana Supreme Court. We’re also watching the debate on a bill that would incentivize the state’s largest utility to buy more of the Colstrip coal-fired power plant.
The biggest story over the last week is the escalating conflict between the legislative and judicial branches. The whirlwind started with a new law that gives the governor more power to appoint judges to vacancies when judicial positions end up vacant between election cycles. Instead of having the governor pick from a list of finalists forwarded by the Judicial Nomination Commission, Senate Bill 140 gives the governor power to fill vacancies directly. Those picks are subject to state Senate confirmation, but because the Legislature meets every other year, that would mean the governor’s picks could serve for some time without a check by any other part of state government. The bill was signed into law in March and challenged the next day with a case filed at the Montana Supreme Court by people who thought it removed an important check on the governor’s power.
Chief Justice Mike McGrath recused himself from hearing the case because he told Gov. Greg Gianforte that he opposed the change in the judicial appointment process when it was still pending legislation. The Supreme Court then appointed a lower court judge, Kurt Krueger, to fill in.
Kreuger has also recused himself from hearing the case after Attorney General Austin Knudsen said he obtained an internal poll from the Supreme Court administrator asking judges for their opinion on the bill on behalf of the Montana Judges Association, which lobbies for the judicial branch. Responses to that poll showed that Krueger had expressed opposition to the bill, which indicates he might not be open-minded enough about it to weigh the constitutional questions at its core it fairly.
Legislative Republicans then issued a subpoena to Court Administrator Beth McLaughlin demanding she turn over emails she’d sent from her state email account. Republican leaders said they were concerned the polls contain evidence that judges had pre-judged SB 140 and other laws that could come before them.
The conflict comes as controversial bills that could end up in court approach the governor’s desk. This session Republicans have advanced anti-abortion bills, restrictions on transgender youth participation in school sports and certain medical treatments, and bills allowing firearms on college campuses. Gianforte, Montana’s first Republican governor in 16 years, has given the GOP an opening to push through conservative legislation that was routinely vetoed when Democrats controlled the governor’s office.
Republican lawmakers have now formed a Select Committee on Transparency and Accountability to investigate the judiciary’s conduct. They’ve subpoenaed all seven justices on the Supreme Court for internal communications about pending legislation, and have ordered Court Administrator Beth McLaughlin to appear before the committee and turn over her state computer.
The Supreme Court issued an order Friday aiming to halt the subpoenas until the parties can figure out how the dispute should move forward. Republicans previously pushed back on a similar order, arguing in part that it isn’t fair for the Supreme Court to adjudicate a case involving its own top administrator. Democrats are calling the situation a “constitutional crisis.”
Switching gears: Another bill stirring up controversy is Senate Bill 379, which could allow NorthWestern Energy to collect a rate of a return and the ability to pass costs on to customers if the utility buys an additional share of the Colstrip coal-fired power plant.
The bill is awaiting a vote in the House Energy, Technology and Federal Relations Committee after a lengthy hearing late last week.
Supporters of the policy say it will incentivize NorthWestern Energy to purchase a reliable power source to meet the demands of electric customers.
Opponents, including the state’s utility regulating body, say the deal could push more risk and cost onto electricity customers. A memo from staff at the Montana Public Service Commission estimates that if NorthWestern were to buy an additional 185 megawatts of the Colstrip power plant, customers could pay on average $611 to $1,250 over the estimated 21-year remaining life of the plant.