Another law generates another constitutional challenge

During the final days of the 2021 legislative session, lawmakers on a free conference committee broadened the scope of a bill initially geared toward revising campaign finance laws. As of Tuesday, those last-minute amendments have triggered a lawsuit against the state by several Montana attorneys, the Montana Association of Criminal Defense Lawyers (MACDL) and the voting advocacy nonprofit Forward Montana.

The complaint, which was filed in Lewis and Clark County District Court, claims that Senate Bill 319 “underwent such contortions” in the last 24 hours of the session that the bill itself and its passage into law should be ruled unconstitutional and void. 

As originally introduced by Sen. Greg Hertz, R-Polson, SB 319 sought to allow political candidates and parties to form joint fundraising committees. But as with a number of other bills this session, SB 319 was amended several times by a free conference committee — a process designed to reconcile versions of bills that have been passed with differing language by the House and Senate, and one that allows committee members to add new provisions that are within the scope of the bill’s title. 

The version of SB 319 that came out of that free conference committee April 27 included two new amendments: one barring voter registration and outreach activity in campus dorms, dining halls and athletic facilities, and one requiring judges to recuse themselves from cases involving an attorney who contributed $91 or more to their campaign within the previous six years. The judicial recusal provision also extends to attorneys who donated to a third party that supported or opposed the judge’s candidacy. Great Falls attorney Raph Graybill, who is representing the plaintiffs along with Helena attorney Rylee Sommers-Flanagan, told Montana Free Press Tuesday that such contributions are a common occurrence in judicial races in Montana.

SB 319 passed both chambers on April 28 and was signed into law by Gov. Greg Gianforte May 12. When MTFP contacted Attorney General Austin Knudsen’s office Tuesday afternoon for comment in response to the lawsuit, his office had not yet received a copy of the complaint.

Tuesday’s legal filing claims that the lack of relation between the amendments and the bill’s original text amount to a violation of the Montana Constitution. The filing also specifically identified the voter engagement provision as a particular concern for Forward Montana, which has a lengthy history of conducting get-out-the-vote activities around the state and planned to launch such efforts on and around college campuses in 2021 and 2022.

“Montana’s State Constitution is designed to prevent last minute amendments — just like these — by prohibiting a bill from containing multiple unrelated subjects,” Forward Montana Executive Director Kiersten Iwai said in a statement released Tuesday. “This type of lawmaking is a tactic used to purposefully confuse constituents and distract from the real issues at hand. The results of this quick lawmaking should be a concern to all Montanans. It’s an assault against our democracy and must be challenged in court. Legislators need to know that this behavior will not be tolerated.”

MACDL and the individual attorneys involved take similar issue with the second amendment added to SB 319, asserting that the new law will not only impact the state’s judicial system by removing hundreds of judges from pending cases, but will also infringe on clients’ rights to a speedy trial. The lawsuit also emphasizes that the process of adopting both amendments did not include opportunities for public comment.

“The constitution doesn’t allow you to make laws in the dark without any public comment,” Graybill said. “And there’s been this disturbing trend of late where right at the end of the legislative session — in this case less than 24 hours before they all decided to go home — you see a bill get hijacked and things get put in the bill and they become law without any real debate, without any public comment. There aren’t a lot of limits on legislative power in the constitution, but there is this one.” 

An emailed release announcing the lawsuit noted that the individual attorneys involved with the lawsuit include both prosecutors and defense attorneys, and emphasized Lewis and Clark County Attorney Leo Gallagher’s presence on the plaintiff list.

SB 319 is also being challenged in a lawsuit filed last month by the Montana Federation of Public Employees, the University of Montana-based Montana Public Interest Research Group and a coalition of faculty, students and former members of the Montana Board of Regents. That litigation alleges that SB 319, along with three other bills, violates the regents’ authority over state campuses as established under the state Constitution.

This story was updated June 2, 2021, to add the final paragraph regarding the initial lawsuit concerning SB 319.