Arguably the defining issue of the 2021 legislative session — and much of the ensuing interim — was a knock-down, drag-out fracas between Republican lawmakers and the Montana judiciary.
Friction between the GOP and the courts is nothing new in Montana, especially as Republicans have increased their power in the state. But it generated an exceptional amount of contention two years ago with Senate Bill 140, a top priority of the newly inaugurated Republican Gov. Greg Gianforte that eliminated the Judicial Nomination Commission and gave the governor unilateral authority to fill judicial vacancies.
From that bill sprouted a lawsuit, Republican allegations against judges of improper lobbying and shady records retention, an unprecedented flurry of subpoenas for court documents, testy legal filings, a select committee, a hotly contested Montana Supreme Court race and much more. That several other GOP-backed bills from the 2021 session — not including, ironically, SB 140 — fell to constitutional challenges only inflamed matters.
It seemed by the early stages of the 2023 session that even with a $2.4 billion budget surplus to spend and a slate of conservative social priorities to pursue, the conflict had barely dissipated.
Republicans said their bills asserted the Legislature’s role as a check on the other branches of government and opened the internal processes of the often-opaque 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, noted in March.
“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.
But by the end of the 68th Legislature, the most sweeping changes to the court system failed to gather adequate support among supermajority-party Republicans. These proposals included House Bill 915, a proposal from former U.S. attorney and Republican Billings Rep. Bill Mercer to ask voters whether to amend the Montana Constitution to eliminate Supreme Court elections in favor of gubernatorial appointments; Senate Bill 311, sponsored by Sen. Barry Usher, R-Laurel, which proposed reducing the number of associate justices on the court; and a suite of bills from various lawmakers that would either allow or require judges to run with party labels, an ostensible attempt to create greater transparency in judicial elections.
“This was a session that was marked by some moderate changes that there seemed to be consensus around and some significant, structural changes that there didn’t seem to be any consensus around,” John Mudd, the executive director of the State Bar of Montana, told Montana Free Press Tuesday. “Things like making judicial elections partisan, reducing the size of the Supreme Court — those are ideas that there’s not support for in the mainstream of the Legislature. These are signified institutional changes they probably realized most Montanans don’t support.”
Senate Majority Leader Steve Fitzpatrick, R-Great Falls, himself an attorney, went further, calling proposals like Usher’s attempt to decrease the size of the Supreme Court a “waste of time.”
What did pass were bills like House Bill 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, which gives partisan officials more power to appoint members to the Judicial Standards Commission, the panel that evaluates complaints of judicial misconduct. Senate Bill 313, similarly, would open certain commission proceedings to examination by the public and other state officials. Another successful judicial ethics proposal came from Rep. David Bedey, R-Hamilton, whose House Bill 412 applies the statutory code of ethics to judicial officers. Mercer and other Republicans also successfully brought a number of proposals that make it easier for lawmakers to defend their laws in court and issue subpoenas — issues stemming directly from the 2021 session.
“In a system of government like this, there’s always going to be tension between the different branches. That’s normal and it’s natural and it’s okay. But I think some of those bills, you know, they met the fate they deserved.”
Senate Majority Leader Steve Fitzpatrick, a Republican attorney from Great Falls
Senate Bill 201, sponsored by Sen. Greg Hertz, R-Polson, says a party in a court case can request the judge be recused if a lawyer, law firm or party in the case has provided financial support to the judge’s election campaign during the last six years of at least $10,000 for Supreme Court candidates and $5,000 for other judges.
But these are effectively marginal changes compared to those on the table at the beginning of this year.
“In a system of government like this, there’s always going to be tension between the different branches,” Fitzpatrick said. “That’s normal and it’s natural and it’s okay. But I think some of those bills, you know, they met the fate they deserved.”
The court system, Senate GOP spokesperson Kyle Schmauch noted, has also made some efforts to clean up its rules around records retention and associations with lobby groups.
Arguably the most significant shift to judicial procedure this session came in the form of a suite of bills changing injunctive relief laws that Fitzpatrick ushered through the early stages of the session.
Injunctive Relief
Fitzpatrick’s bills landed on the governor’s desk for his signature roughly a month after their initial committee hearings.
These proposals were significant not just for their pace but for their effect in the context of the state’s broader political picture. About two dozen bills Republicans passed in the 2021 session were caught up in court challenges, further fueling an existing anxiety among Montana’s surging right-wing about the state’s third branch of government, a relatively static institution that has resisted the conservative takeover seen in the legislative and executive branches.
This session, Fitzpatrick and other GOP lawmakers sought to make it more difficult for plaintiffs to obtain the court orders that, among other purposes, can halt the implementation of legislation amid legal challenges.
The flagship bill, as Fitzpatrick called it, was Senate Bill 191, which directs courts to adopt the more stringent federal standards for issuing preliminary injunctions. Previous Montana law said a court can issue an injunction in one of three cases: “When it appears that the applicant is entitled to the relief demanded,” “when it appears that the commission … of some act during the litigation would produce a great or irreparable injury to the applicant” or “when it appears during the litigation that the adverse party is doing … some act in violation of the applicant’s rights.”
Fitzpatrick’s bill would require that anyone seeking an injunction be able to prove they are likely to succeed on the merits of their case, that they will suffer irreparable harm in the absence of relief, that “the balance of equities tips” in their favor and that the order is in the public’s interest.
The “and” is crucial. To translate into simple English: Plaintiffs could meet one of several standards to obtain injunctive relief under the old law, but under Fitzpatrick’s bill, they have to meet each of the provisions.
Under the federal standard, “you can examine the case and say, ‘Is this guy likely to win or not,’ not ‘I made the basic elements’ and we won’t worry about what happens later with the evidence,” Fitzpatrick told the Senate Judiciary Committee in January.
Fitzpatrick maintained that his bill had nothing to do with the ability of plaintiffs to obtain injunctions against the implementation of laws. But his argument mirrored one made by the office of Montana Attorney General Austin Knudsen in litigation over abortion restrictions passed last session, Planned Parenthood v. State. The state’s standard, the attorney general argued in that case, had resulted in “on-demand preliminary injunctions.”
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The Montana Supreme Court defended its standard, writing that courts across the land generally agree that an injunction requires “a showing of entitlement to temporary relief but not ultimate success on final judgment.”
An added wrinkle — and, according to Democrats, one explanation of the quick pace of SB 191 — was the threat of litigation over a proposed state rule concerning Medicaid coverage of abortions, as first reported by the Helena Independent Record.
Around the same time as the bill’s introduction in the Senate, an attorney representing Planned Parenthood of Montana sent a letter to the Montana Department of Public Health and Human Services threatening to sue (and obtain an injunction) if it implemented a proposed rule restricting Medicaid coverage for abortions to those conducted by physicians — as opposed to advanced practice registered nurses and physician assistants — and requiring extra documentation for pre-authorization of Medicaid coverage.
SB 191, which had an immediate effective date, was signed into law on March 2, increasing the standards for injunctive relief ahead of the implementation of the new abortion rule, as well as ahead of any possible litigation related to bills passed in the 2023 session. Planned Parenthood ultimately sued over the rule in April, obtaining a temporary restraining order, another, more immediate type of court action to preserve the status quo. A preliminary injunction hearing — and a high-profile test of the new law — is set for May 12.
SB 191 originally had two main components. In addition to the changes to injunctive relief standards, it also restricted temporary restraining orders. TROs can be issued without notice to the adverse party in some circumstances, but SB 191 stipulated that courts could not issue such orders without notice if that adverse party is “the state or the state’s departments, agencies, or officers being sued in their official capacities.”
It would have been a “sweeping change” that created a special legal carveout for state government not applicable to local governments, University of Montana law professor Anna Conley told Montana Free Press at the time. Fitzpatrick said the provision made it into the bill at the request of the attorney general’s office.
Deputy Solicitor General Brent Mead told the Senate Judiciary Committee the reason for the new language was a case concerning a proposed ballot issue from 2022 that would cap property taxes in Montana, CI-121. In that litigation, the Montana Federation of Public Employees sought to stop signature gathering on the initiative, suing the attorney general’s office “because we were the ones who issued a legal sufficiency notice,” Mead said.
MFPE successfully sought from a district court — without notice — the restraining order against the initiative.
“[A TRO] without notice is there when you can’t find the defendant or there is some critical need that you can’t contact them to get that opposing viewpoint before the issuance of a [restraining order],” Mead testified. “When we’re talking about government actors, we’re at 215 North Sanders Street. You know where we are; you can serve us with notice.”
Fitzpatrick eventually scrapped the provision after pushback from Democrats. But it resurfaced in a modified form in House Bill 695, sponsored by Mercer. The bill, which now awaits Gianforte’s signature, broadens the restrictions to state and local governments and also provides some exceptions: if “notice could not be provided through no fault of the moving party” and if the case is brought under family law statutes.
Another of Fitzpatrick’s suite of legal bills, Senate Bill 135, pertains to rulemaking from the Montana secretary of state, a reference to litigation over a series of election bills Republicans passed in 2021, including House Bill 530, which set out to block paid ballot collection. The bill says courts cannot grant an injunction preemptively blocking the Montana secretary of state from issuing an administrative rule, as happened with the lawsuit over HB 530.
“The court in Billings then decided they were going to enjoin this nonexistent law, this nonexistent administrative rule,” Fitzpatrick testified at the beginning of the session. “That candidly surprised me. I thought you had to have a law, on the books, on a piece of paper before you could have an injunction entered against it.”
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