HELENA — With the Legislature and governor’s office both under Republican control for the first time in nearly two decades this year, lawmakers delivered Montana a raft of new laws implementing a muscular conservative agenda.
Opponents, however, have taken their concerns about several of the most contentious new GOP-backed laws before the third branch of state government: the courts.
According to a running tally being kept by Montana Free Press’ Laws on Trial project, legal challenges have been filed against 18 bills passed into law by the 2021 Montana Legislature and Republican Gov. Greg Gianforte. All argue that the new laws violate the U.S. or Montana constitutions.
“There wouldn’t be so many constitutional challenges if they hadn’t passed so many damn unconstitutional laws,” said Raph Graybill, an attorney who represents plaintiffs in several of the cases.
“The constitution matters,” said Graybill, who was the Democratic Party’s 2020 nominee for Montana Attorney General. “The whole idea of a constitution is that it’s a set of values and it’s a set of protections against the government that endure beyond changes in legislative composition or this election and that election.”
A spokesperson for the Legislature’s Republican majority, Kyle Schmauch, characterized the litigation as driven by a “small group of liberal partisans who are trying to advance their unpopular political goals through the courts.”
Schmauch also noted that most of the 700-plus bills passed into law this year aren’t facing legal challenges, including Republican-led efforts to lower taxes, cut business regulations and advance education and health care policies.
Even so, litigation filed in state and federal courts has snared many of the session’s highest-profile bills, measures that expand permitless firearm carry to college campuses, restrict abortion, end Election Day voter registration, prevent businesses from requiring employee vaccinations, and change how the state fills judicial vacancies between elections.
Most of the bill challenge cases are still in their early stages, as debates play out over whether specific lawsuits have sufficient merit to avoid summary dismissals and whether judges should issue injunctions that put challenged laws on hold while litigation proceeds.
The court documents are piling up regardless. MTFP’s tracking project, which is posting major legal filings in the cases online for free public access, has collected 315 filings totalling 5,459 pages.
An analysis prepared by the Legislative Audit Division at the request of Rep. Jessica Karjala, D-Billings, reported that as of November, staff attorneys at the Montana Department of Justice had spent more than 1,800 hours working on litigation stemming from the 2021 Legislature. Auditors calculated that the effort equates to approximately $102,000 in legal work.
Here’s where the bill challenge lawsuits stand as of mid-December:
House Bill 102, which supporters call a “constitutional carry” measure, expanded where Montanans are legally allowed to possess firearms, allowing permitless carry by default in most places. Legal challenges so far have been focused on a portion of the law that limits the Montana University System’s ability to regulate firearm possession on college campuses.
- Board of Regents v. Montana (Law blocked — lower court ruling appealed)
Challenges campus carry provisions included in HB 102 by arguing that the Legislature violated the regents’ constitutional authority to independently manage university campuses. Plaintiffs are represented by Sheehy Law Firm, Holland & Hart LLP and in-house legal counsel. A Lewis and Clark County District Court judge temporarily prevented the law from taking effect in May and ruled in the Regents’ favor in late November. That ruling is now being appealed to the Montana Supreme Court.
- S. Barrett et al. v. Montana (Pending)
Challenges HB 102 and three other bills (see below). The case was filed by a large group of plaintiffs in Gallatin County District Court and is in its initial stages. Plaintiffs are represented by Goetz, Baldwin & Geddes, P.C. and Graybill Law Firm.
In addition to challenging the campus carry bill, plaintiffs in S. Barrett et al. v. Montana seek to challenge three other bills they say infringe on the regents’ authority. Those are House Bill 349, which prohibits campuses from limiting support for student groups based on the groups’ activities or beliefs; House Bill 112, which bars transgender athletes from participating in women’s sports; and Senate Bill 319, which restricts on-campus political activity.
The legislative session produced four significant anti-abortion laws: House Bill 136, which largely bans abortions after 20 weeks; House Bill 140, which requires providers to offer patients pre-abortion ultrasounds; House Bill 171, which adds restrictions on abortion medications; and House Bill 229, which prohibits state health insurance plans sold through the federal exchange from including abortion coverage.
- Planned Parenthood et al. v. Montana (Pending — 3 of 4 laws temporarily blocked)
Challenges the four anti-abortion laws, arguing that they violate Montanans’ constitutional privacy rights. Plaintiffs are represented by Graybill Law Firm, New York-based Wilmer Cutler Pickering Hale and Door LLP, Planned Parenthood counsel and Montana attorney Gene Jarussi. Three of the laws were blocked by a Yellowstone County District Court judge in October while the case proceeds. That order is being appealed to the Montana Supreme Court.
TRANSGENDER BIRTH CERTIFICATES
Senate Bill 280 requires surgery and a court order before transgender Montanans are allowed to update their birth certificates.
- A. Marquez et al. v. Gianforte et al. (Pending)
Challenges the birth certificate-change law. Plaintiffs are represented by the American Civil Liberties Union. The case is in its initial stages in Yellowstone County District Court.
Several new laws tighten election administration requirements or limit campaign-related political activity in ways that have been criticized by progressive groups. The five facing current legal challenges are House Bill 176, which ends Election Day voter registration in Montana; House Bill 506, which limits ballot distribution to soon-to-be-eligible voters; House Bill 530, which prohibits paid ballot collection; Senate Bill 169, which imposes stricter voter ID requirements; and Senate Bill 319, which among other provisions restricts campus political activity in a way that could hamper efforts to turn out student voters.
- Montana Democratic Party v. C. Jacobsen. (Pending)
Challenges laws on Election Day voter registration, voter ID requirements and paid ballot collection. Plaintiffs are represented by Meloy Law Firm and Seattle-based Perkins Coie LLP. The case is pending in Yellowstone County District Court.
- Western Native Voice et al. v. C. Jacobsen (Merged)
Challenges laws on Election Day voter registration and paid ballot collection. Plaintiffs are represented by the American Civil Liberties Union and the Native Americans Rights Fund. Consolidated with Montana Democratic Party v. C. Jacobsen case this month.
- Montana Youth Action et al. v. C. Jacobsen (Merged)
Challenges laws that end Election Day voter registration, restrict ballot distribution to soon-to-be-eligible voters, and limit use of student IDs for voter registration. Plaintiffs are represented by Upper Seven Law. A motion in Yellowstone County District Court to consolidate the case with Montana Democratic Party v. C. Jacobsen was granted this month.
- MFPE et al. v. Montana (Pending)
Lawsuit by labor groups and disability rights advocates challenging law ending Election Day voter registration. Plaintiffs are represented by Graybill Law Firm. Lawsuit is pending in Cascade County District Court.
- Forward Montana et al. v. Montana (Pending — SB 319 stayed)
Challenges constitutionality of the legislative process that amended a campaign finance bill, SB 319, late in the session to include provisions related to political campus activity and judicial recusal. Plaintiffs are represented by Graybill Law Firm and Upper Seven Law. Lawsuit is pending in Lewis and Clark County District Court, where a judge in July granted a preliminary injunction preventing the law from taking effect while litigation proceeds.
- Montana Democratic Party et al. v. C. Jacobsen et al. (Pending)
Challenges law that restricts on-campus voter registration and signature gathering. The plaintiffs, including Sen. Jon Tester’s campaign committee, are represented by Meloy Law Firm and Seattle-based Elias Law Group. Case is pending in U.S. District Court in Missoula.
House Bill 702 prohibits health care providers and private businesses from requiring that employees be vaccinated for COVID-19 and other infectious diseases by banning discrimination based on vaccination status. Separately, national efforts by the Biden administration to mandate vaccinations for some groups of workers are facing their own litigation.
- Montana Medical Association et al. v. Knudsen et al. (Pending)
Challenges HB 702, initially requesting that it be invalidated in physician offices and hospitals. The Montana Nurses Association was allowed to intervene in the case in November, expanding the scope of the lawsuit to all health care settings. Medical Association plaintiffs are represented by Garlington, Lohn & Robinson, PLLP and the Montana Nurses Association by Graybill Law Firm. The case is pending in U.S. District Court in Missoula.
- Netzer Law Office v. Montana (Pending)
Challenge to HB 702 brought by a Sidney-based law firm arguing that the new law prevents the firm from providing a safe and healthy environment for workers as required under the Montana Constitution. Netzer Law Office is representing itself. The case is pending in Richland County District Court.
Two new laws seek to help the Colstrip coal plant stay open by giving owners like NorthWestern Energy, which may want to extend the plant’s operational life, an advantage in negotiations about its closure. Senate Bill 265 changes the rules about where disputes between the plant’s owners are arbitrated, shifting arbitration from Washington sState to Montana. Senate Bill 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.
- Portland General Electric Company et al. v. NorthWestern Energy et al. (Pending — SB 266 on hold)
Lawsuit filed by non-Montana utilities with ownership stakes in Colstrip. The case is pending in U.S. District Court in Billings, with plaintiffs represented by six law firms based in three states. A federal judge issued a temporary stay on SB 266 in October. In the meanwhile, arbitration between the plant’s owners — a process that’s laid out in the 40-year-old operating agreement governing Colstrip’s management — is at loggerheads, with parties unable to reach consensus on an arbiter or a venue.
One new law, Senate Bill 140, gives the Montana governor direct control over appointments to fill judicial vacancies, as opposed to picking from candidates nominated by a standalone commission. Another bill, House Bill 325, creates a 2022 ballot initiative that would ask voters to endorse a change that would elect Montana Supreme Court justices by district, rather than statewide.
- B. Brown et al. v. G. Gianforte (Law upheld)
Challenges the judicial vacancies law. Plaintiffs were represented by Goetz, Baldwin & Geddes, P.C. and Edwards & Culver. The Montana Supreme Court voted 6-1 to uphold the law in June.
- Winter et al. v. Montana (Dismissed)
A subsequent effort to challenge the judicial vacancies bill. Plaintiffs were represented by Tarlow Stonecipher Weamer & Kelly, PLLC. The case was dismissed by a Lewis and Clark County District Court judge in September after a mid-case effort to appeal to the Montana Supreme Court was denied in July.
- McDonald et al. v. C. Jacobsen (Pending)
Challenges a proposed voter referendum on electing state Supreme Court justices by district. Plaintiffs are represented by Goetz, Baldwin & Geddes, P.C. and Edwards & Culver. The case is pending in Silver Bow County District Court.
Additional reporting by Amanda Eggert, Alex Sakariassen and Mara Silvers.