HELENA — As a wave of Republican legislation passed into law through this year’s legislative session, the first since 2005 with unified GOP control of the Legislature and governor’s office, opponents promised to take their fight against bills they considered unconstitutional to the courts.
In the three months since the 2021 session concluded on April 29, those opponents have delivered on that promise. As of Aug. 9, 12 laws enacted by the 2021 Legislature and Gov. Greg Gianforte had been challenged in 14 separate lawsuits identified by MTFP’s Laws on Trial project, which is tracking the litigation spun out from the legislation session and making major court filings available to the public online.
Most of the bill-challenge cases are still early in the litigation process, with attorneys trading briefs over initial motions that debate, for example, whether challenged laws should be blocked from taking effect while litigation proceeds.
Even so, those 14 cases have already produced a mountain of paperwork: 117 major filings totalling more than 2,000 pages, according to MTFP’s count.
(Those figures exclude cases about a legislative effort to subpoena state Supreme Court emails and an unsuccessful lawsuit brought by a group of media outlets, including MTFP, about a closed committee caucus meeting. They include two cases dismissed by the Montana Supreme Court and refiled in lower courts.)
One of the challenged laws, Senate Bill 140, which gives the governor direct appointment power over judicial vacancies in the state court system, has already been upheld by the Montana Supreme Court in B. Brown et al. v. G. Gianforte. Challenges against other laws are pending in state and federal courts in Helena, Butte, Billings and Bozeman.
CHALLENGES TO A CAMPUS CARRY LAW AND NEW HIGHER ED REGULATIONS
Two lawsuits challenge House Bill 102, a gun rights bill that was set to force the Montana Board of Regents to allow gun possession on college campuses starting June 1. The regents, the Montana University System’s governing body, filed suit in late May, arguing the bill oversteps their constitutional authority to manage colleges independently from the Legislature. Lewis and Clark County District Court Judge Michael McMahon has issued a series of orders in that case, Board of Regents v. Montana, that keep the law from taking effect while it’s litigated.
The campus carry law was also one of four higher-education-related measures challenged in a separate lawsuit, S. Barrett et al. v. Montana, filed in early June in Gallatin County District Court by a plaintiff group that includes university faculty and former higher education officials.
The Barrett suit also challenges aspects of three other bills: House Bill 349, which aims to protect students and student groups from discrimination on the basis of political or religious beliefs; House Bill 112, which prohibits participation in women’s sports for transgender women athletes; and Senate Bill 319, which limits voter registration efforts in campus dorms and undercuts funding for MontPIRG, a progressive political group funded by an opt-out University of Montana student fee. The plaintiffs in the second suit argue that all four laws infringe on the regents’ authority.
Both cases were initially filed before the Montana Supreme Court, which dismissed them with a referral to lower state courts.
A CHALLENGE AGAINST ELECTION ADMINISTRATION LAWS
Two lawsuits challenge newly adopted election administration laws. One, filed in April by the Montana Democratic Party and Mitch Bohn, a voter who uses a wheelchair, challenges three laws: House Bill 530, which limits ballot collection by paid workers; House Bill 176, which ends Election Day voter registration, and Senate Bill 169, which adds stricter photo ID requirements for voter registration.
The second lawsuit, filed in May by two Native American advocacy groups and four tribal governments with legal representation by the American Civil Liberties Union, challenges HB 176 and SB 169.
Both lawsuits, Montana Democratic Party v. C. Jacobsen and Western Native Voice et al. v. C. Jacobsen, were filed in Yellowstone County District Court. The plaintiffs have filed motions seeking to have the two cases combined.
A CHALLENGE AGAINST MAKING IT HARDER FOR TRANSGENDER MONTANANS TO CHANGE THEIR BIRTH CERTIFICATES
Two transgender plaintiffs, represented by the ACLU, are challenging Senate Bill 280, which prevents transgender Montanans from amending their birth certificate unless they’ve had gender-confirming surgery and obtained a court order.
That suit, A. Marquez v. Gianforte et al., was filed in Yellowstone County District Court in July.
A CHALLENGE AGAINST ASKING VOTERS TO ELECT MONTANA SUPREME COURT JUSTICES BY DISTRICT
A lawsuit filed by a group of Montana citizens challenges House Bill 325, which proposes a ballot measure asking voters to amend the Montana Constitution so state Supreme Court justices are elected by district instead of with a statewide vote.
That suit, McDonald et al. v. C. Jacobsen, was filed in May in Butte-Silver-Bow District Court. A dispute over a request by state attorneys to have its assigned judge, Kurt Kreuger, replaced by a different judge has been appealed to the Montana Supreme Court in Jacobsen v. Second Judicial District.
A CHALLENGE TO A LAST-MINUTE CAMPAIGN FINANCE MEASURE
Another lawsuit also challenges SB 319, which was introduced as a campaign finance reform measure and passed in the final days of the legislative session after extensive late-session rewrites. In addition to its regulations on campus political activity, SB 319’s final form included a provision requiring elected state judges to recuse themselves in court cases involving attorneys, plaintiffs and defendants who donated to or against their election campaigns.
Plaintiffs including Forward Montana, Lewis and Clark County Attorney Leo Gallagher and the Montana Association of Criminal Defense Lawyers filed suit in June. They argue, in part, that the revised bill violates constitutional requirements that Montana bills address a single subject and not be amended in process so much that their initial purpose is changed.
A CHALLENGE TO LAWS AIMED AT KEEPING COLSTRIP OPEN
A group of out-of-state utility companies with ownership stakes in the Colstrip coal power plant have challenged two new Montana laws, Senate Bill 265 and Senate Bill 266, that are intended to make it harder to shut the plant down. SB 265 changes the rules about how disputes between the plant’s owners are arbitrated. SB 266 would classify a Colstrip owner’s failure or refusal to fund its share of the plant’s operating costs as an “unfair or deceptive act” that could subject the company to $100,000 in fines per day.
The plaintiffs argue that those laws represent an unconstitutional effort by Montana state government to meddle in interstate commerce. The named defendants are NorthWestern Energy, Montana’s largest utility company, and Talen Montana, the company that operates Colstrip for the ownership group. The case, Portland General Electric Company et al. v. NorthWestern Energy et al., is filed in federal court in Billings.
Oral arguments over a preliminary injunction that would keep SB 266 from taking effect while litigation proceeds were held Aug. 6. A ruling was pending as of Aug. 9.
AND A SECOND EFFORT TO CHALLENGE THE JUDICIAL APPOINTMENTS BILL
Two former state legislators, Tom Winter and Barbara Bessette, filed a separate lawsuit in Lewis and Clark County District Court challenging SB 140, the judicial appointments bill, in June. They then made an unsuccessful effort to appeal to the Montana Supreme Court in Winter et al. v. 1st Judicial District after a district court judge denied their initial effort to have the law’s effective date delayed.
A motion by state attorneys to dismiss the district court case, Winter et al. v. Montana, is pending.
Where state agencies are named as defendants in the cases, they’re generally being represented by the Montana Department of Justice, which is led by Attorney General Austin Knudsen. Department spokesman Kyler Nerison said Aug. 4 that the agency had not engaged outside counsel in the cases so far. He declined to provide an estimate for how much staff time has been devoted to the litigation.
“While the DOJ acts as the law firm for the state, especially as to constitutional challenges to state laws, it’s not a private sector law firm that tracks time by case and bills clients,” Nerison said.
He did say the office has a group of attorneys who are working on the bill-challenge cases, “as well as federal litigation and other matters.”
An MTFP count identified nine separate DOJ attorneys named as representing the state in bill-challenge court filings, excluding Knudsen. Data available on the state’s employee pay dashboard indicates those attorneys earn between $88,600 and $117,700 a year.
More information on these cases and links to downloadable versions of the full filings are available at apps.montanafreepress.org/montana-legislature-lawsuit-tracker.
Amanda Eggert, Alex Sakariassen and Mara Silvers contributed reporting.