Tracking changes to the court system at the Legislature’s midpoint 

If any political observers were tempted to think that the heat between Republican lawmakers and the Montana court system would dissipate between last legislative session and this one, they were thoroughly disproven by day 45 of Montana’s 68th Legislature. 

It’s true that compared to last session — when debate about legislation giving the governor unilateral power to fill judicial vacancies spiraled into a broader fight about judicial transparency and the extent to which the Legislature can or should be involved in the court’s business — judicial bills have occupied less space thus far in the 2023 session, with its focus on a $2.4 billion state budget surplus and focus on a conservative social agenda. 

But the inter-branch conflict is about more than any particular piece of legislation. It’s the byproduct of a collision between a relatively static institution — the state Supreme Court, with its strong association with the Montana Constitution — and a surging, ideologically driven Republican Party that has won power in the Legislature and executive branches of state government on promises to disrupt the status quo. 

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As an example: One of the Legislature’s major court bills this session, Senate Majority Leader Steve Fitzpatrick’s Senate Bill 191, currently awaits the signature of Republican Gov. Greg Gianforte. It seeks to raise Montana courts’ standards for granting injunctive relief — a court order that preserves the status quo. 

Fitzpatrick, R-Great Falls, maintains that SB 191 has nothing to do with the number of bills that have faced constitutional challenges or injunctions since the 2021 session, several of which have generated court-ordered injunctions blocking their implementation. But the new language his bill proposes reflects an argument the state attorney general made in defending a GOP-backed abortion law in court — that it’s too easy for plaintiffs to obtain injunctions in Montana.

In other words, lawmakers haven’t shied away from attempts to reshape the court this session. Republicans say it’s a matter of asserting the Legislature’s role as a check on the other branches of government and opening up the internal processes of the judiciary to public (and partisan) scrutiny.   

In 22 different instances in the section establishing the judiciary, the 1972 Montana Constitution assigns some deference to law or the Legislature, House Speaker Matt Regier, R-Kalispell, said last week. 

“Twenty-two different areas that even just by the Constitution, we can direct and put the checks and balances back in the judiciary,” he said. “So I think you saw a lot of legislators picking that out, whether it’s the Judicial Standards Commission or, I mean, they even had one for the district court council, and how that appropriates money in district courts. So there’s no overall master plan. I think it’s just taking good ideas by themselves.”

Not every court bill flew through the Legislature as fast as Fitzpatrick’s SB 191. Some particularly dramatic overhauls stalled in committee or on the floor ahead of the transmittal deadline, such as a constitutional amendment referral to give the Legislature authority to appoint Supreme Court justices, and to reduce the number of justices from seven to six and then to five over the next several years.

And last Thursday, the defeat of Great Falls GOP Rep. Scot Kerns’ House Bill 595 on the floor sounded the death knell for a quartet of bills to allow or mandate partisan judicial races (and, in some cases, other nonpartisan positions), a response to the 2022 race for Montana Supreme Court.  Each bill died, either in committee or on the floor. Kerns’ proposal was the last to go up for a vote, and some Republicans teamed up with Democrats to kill the bill 46-54. 

As the legislative saying goes, though, no idea is truly dead until sine die. And Republican lawmakers have signaled they’ll continue their judicial push in the second half of the session, possibly in the form of constitutional amendments that require two-thirds votes in the Legislature and approval by the voters. 

“I guess I’d say stay tuned,” Rep. Bill Mercer, R-Billings, a former U.S. attorney for the state of Montana, said last Friday.

Here’s a roundup of what passed, what didn’t, and what could be next. 

INJUNCTIVE RELIEF REVISIONS 

• ✅ SB 191, SB 134, SB 135 and SB 136, a suite of bills from Sen. Steve Fitzpatrick, R-Great Falls, that seeks to change the standards for judges to grant temporary restraining orders and injunctions in Montana courts, all passed both chambers in the first half of the session and now await Gianforte’s signature. SB 191, the flagship bill, directs courts to adopt the ostensibly more stringent federal court standards for injunctions, which could be relevant in legal challenges to bills passed by the Legislature. 
• ✅ House Bill 695, sponsored by Rep. Bill Mercer, R-Billings, passed the House. It would implement a change to temporary restraining order laws that was struck out of Fitzpatrick’s SB 191 during the committee process. Under the bill, parties in a court case could not request a restraining order against a state or local government agency without first notifying the defendant. Mercer pointed to multiple court cases in the last two years where that has been an issue. One case concerned a proposed ballot initiative from 2022 that would cap property taxes in Montana. In that litigation, the Montana Federation of Public Employees sued the state to stop signature gathering on the initiative, successfully obtaining — without prior notice to lawyers with the attorney general’s office and the Montana secretary of state — a restraining order against the initiative from a district court.

JUDICIAL ELECTIONS

• ❌ HB 595, sponsored by Rep. Scot Kerns, R-Great Falls, died on the House floor Thursday 46-54, with a group of Republicans joining Democrats in opposition. One of several bills on a similar theme, Kerns’ bill would have required judicial candidates to run for election as Democrats, Republicans or independents. “I acknowledge that candidates need a level playing field from which to run, but it is not achieved by installing a partisan teeter-totter on that field,” one of those opposing Republicans, Rep. Wayne Rusk of Corvallis, said in explaining his vote. 
• ❌ SB 302, from Rep. Daniel Emrich, R-Great Falls, died on the Senate floor at the hand of a bipartisan coalition. It would have required all candidates for judicial office to run with a party affiliation in a general election following a nonpartisan primary. 
• ❌ SB 200, from Sen. Greg Hertz, R-Polson, fell in the Senate State Administration Committee in early February. It would have allowed, but not required, candidates for judicial office and several other nonpartisan positions to run with party affiliations. 
• ❌ Thompson Falls Republican Rep. Paul Fielder’s HB 464 came close. The bill, which would allow judicial candidates to run with party affiliations and announce partisan endorsements, died on the House floor, 49-51. 
• ❌ SB 372, a constitutional amendment referral from Emrich, died in the Senate Judiciary Committee. It proposed a constitutional amendment to replace the state’s long-standing system of judicial elections with legislative appointments. 

JUDICIAL ETHICS AND STANDARDS 

• ✅ SB 201, sponsored by Sen. Greg Hertz, R-Polson, is headed to the House. It says a party in a court case can request the judge be recused if a lawyer, law firm or party in the case has directly or indirectly provided financial support to the judge’s election campaign during the last six years to the tune of $10,000 for Supreme Court candidates and $5,000 for other judicial positions. 
• ❌ HB 772, sponsored by Rep. Lyn Hellegaard, R-Missoula, was tabled in the House Judiciary Committee ahead of transmittal. It would have established an even lower donation threshold to get a judge recused, and, in certain circumstances, allowed the attorney general to assign a district court judge to replace the chief justice on a case. 
• ✅ HB 436, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, passed the House. It would allow for the substitution of judges in child abuse and neglect cases. 
• ✅ HB 412, sponsored by Rep. David Bedey, R-Hamilton, would expand certain sections of the state code of ethics to legislative and judicial officials. It passed the House in February. Judges in the state are historically bound by the state code of judicial conduct. 
• ✅ SB 252, sponsored by Hertz, would extend the state code of ethics to judicial officials. It passed the Senate and now heads to the House. 
• ✅ SB 313, sponsored by Sen. Keith Regier, R-Kalispell, would open up certain proceedings of the Judicial Standards Commission, which hears complaints of judicial misconduct, to examination by the public and other state officials. It passed the Senate 26-24. 
• ✅ HB 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, passed the House and now awaits a Senate committee hearing. It changes the appointment process for the five-member Judicial Standards Commission, giving legislative leadership and the Montana attorney general — both partisan positions — authority to nominate members to the commission. 

COURT ADMINISTRATION

• ✅ SB 410, sponsored by Sen. Barry Usher, R-Laurel, passed out of the Senate. It removes a single line of statute related to the duties of the state court administrator, a nonpartisan position appointed by the state Supreme Court that became a focal point of the separation-of-powers fight. The bill would strike language prescribing that the court administrator carry out whatever “other duties that the supreme court may assign.”
• ❌ SB 230, sponsored by Sen. John Fuller, R-Kalispell, died on the Senate floor in early February. It takes an even more direct swipe at the court administrator, giving the partisan clerk of the Supreme Court the ability to hire and fire the administrator. 
• ❌ SB 299, sponsored by Usher, calls for a one-time legislative performance audit of Montana district courts. It died on the Senate floor. 
• ✅ SB 224, sponsored by Sen. Greg Hertz, R-Polson, is similar to SB 299. It requires the court administrator to report district court caseloads and the rate of judge substitutions to the Legislature. It passed on the Senate floor. 
• ❌ SB 311, sponsored by Usher, would reduce the number of justices from seven to six and then to five over the next several years. The mechanics of the bill introduced a potential complication: There would be a scenario in which the court could have a tie vote, which isn’t provided for in the state Constitution. It died on the Senate floor.

LEGISLATIVE INTERVENTION

• ✅ SB 490, sponsored by Sen. Greg Hertz, R-Polson, passed out of the Senate. It would broadly expand the Legislature’s subpoena and investigative powers. During the separation-of-powers clash, the Supreme Court ruled legislative subpoenas for court records invalid, saying they did not express a proper legislative purpose. 
• ✅ SB 278, sponsored by Sen. Steve Fitzptrick, R-Great Falls, allows the sponsor of legislation to intervene in a declaratory judgment action in court involving their bill. It passed out of the Senate. 
• ✅ HB 518, sponsored by Rep. Bill Mercer, R-Billings, is a variation of the same theme: increasing legislative involvement in litigation surrounding legislative bills. It would authorize the Legislature to sue or defend legal challenges to the constitutionality of its bills. It passed out of the House. 

RESOLUTIONS

• ✅ SJ 15, sponsored by Sen. Tom McGillvray, R-Billings, passed out of the Senate. Resolutions don’t have the force of law, but they do express legislative intent. SJ 15 states: “The belief that the court has exclusive authority to interpret the constitution and that its decisions are binding on the other two branches is a myth based on a faulty understanding of Marbury v. Madison.” 
• ❌ SJ 11, sponsored by Sen. Keith Regier, R-Kalispell, died on a 25-25 vote in the Senate. It resolved that “nowhere does the Montana Constitution authorize the Supreme Court to define the law.” 

WHAT COULD BE NEXT

One of the features of the bicameral Republican supermajority this session is the ability to pass constitutional amendment ballot referrals — which require a two-thirds vote across the Legislature — without needing Democratic support. 

But Republicans have so far focused largely on statutory changes to the judicial branch. That could change in the second half of the session, given that referendum proposals have a later transmittal deadline than general bills. A list of bill drafts show possible amendment proposals related to the Judicial Standards Commission, judicial term limits and more. 

Mercer, who has taken a special interest in judicial bills, previewed what could be a major overhaul of the court coming up in the second half.

“You will be seeing a constitutional amendment proposal in the second half which will seek to place on the ballot a proposal that Supreme Court justices be appointed by the governor and confirmed by the Senate,” Mercer said at a press conference following adjournment on transmittal day. “That’s something to look for, and I think we will have other constitutional amendments that may encroach on that subject.”