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The Montana Department of Justice is asking for a funding boost to hire more attorneys and pay legal expenses, citing, among other cost drivers, an increased “volume of constitutional challenges to state laws,” agency officials told a budget subcommittee last week.
Gov. Greg Gianforte’s budget request for the department’s legal services division calls for $2 million over the next biennium for a litigation fund to support the hiring of expert witnesses and outside counsel, pay increased costs “in courts across the nation” and, in some cases, fines and fees awarded in court orders.
The budget also requests just shy of $700,000 over the biennium to hire three civil attorneys, the state lawyers tasked with mounting defenses in legal challenges to bills passed by the Montana Legislature.
“The workload we’ve shouldered the last two years is unsustainable this next go around,” Solicitor General Christian Corrigan told the Joint Subcommittee on Judicial Branch, Law Enforcement, and Justice on Feb. 3.
Corrigan said that the agency is expecting an additional “onslaught of lawsuits based on what the Legislature does this session,” and that the need for three additional positions may be a “conservative estimate.”
“Any time the Legislature does something really significant or remotely controversial, it’s going to be challenged,” he said.
According to agency figures and the Montana Free Press Laws on Trial project, plaintiffs have challenged more than two dozen laws passed in the 2021 session. Corrigan said that’s on top of ongoing litigation concerning laws passed in previous sessions.
He said the civil bureau has only recently filled all of its current positions, though it still lacks a bureau chief. When there have been holes in the bureau’s needs, it has turned to outside counsel, he said.
Indeed, the department on Jan. 1 renewed its contract with Emily Jones, a Billings attorney married to Republican political consultant Jake Eaton, who worked on the election campaigns of both Gianforte and Attorney General Austin Knudsen. Her contract says she will provide supervision, mentorship and “litigation management services” for the civil bureau.
As was the case when she signed her initial contract at the beginning of 2022, Jones will be paid $10,000 per month for no more than 12 months. Jones is listed as an assistant attorney general on the agency’s directory, though spokesperson Kyler Nerison clarified she is still a contractor. The other two civil lawyers listed with the same title — Thane Johnson and Michael Russell — are full-time employees, he said.
Nerison said Jones, generally speaking, is involved in all civil cases being litigated by the DOJ. Her firm logged 1,107.2 hours for the department in 2022, he said.
Nerison told MTFP last year that Jones’ contract was part of a broader effort to strengthen the civil bureau.
Lawmakers, though they didn’t specifically ask about Jones, questioned Corrigan Friday about when the department has turned to outside counsel. He said “there are times where something comes up where we need to hire an outside counsel, either for their expertise or simply because we don’t have enough bandwidth to handle a matter.”
He acknowledged that outside counsel is more costly than on-staff attorneys. Hiring full-time employees could bring down legal expenses over the long run, Corrigan added.
Corrigan oversees the department’s solicitor’s bureau, which challenges — often alongside other states — federal rules, regulations and laws. But he said the lawyers assigned to that division are spending more than half their time aiding in the defense of state legislation.
In total, the Department of Justice is requesting a 14% increase for the 2025 biennial budget over its baseline appropriation in the 2023 biennium.
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