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June 1, 2023
Welcome back to Capitolized!
For almost five long months, we chronicled the ins and outs of the 68th Montana Legislature, and thousands of you joined us. But politics and power-building in this state don’t stop when lawmakers leave Helena.
So, after a month off to recuperate, Capitolized will be again hitting your inboxes with news about the people and policies behind the state’s big political moments. Going forward, we have an expanded purview — the judiciary, state agencies, elections, the mechanics of party committees and more — but the same ethos still applies: bringing news about the inner workings of Montana politics to Montanans beyond the bubble that is Helena.
Capitolized will publish every Thursday afternoon for the foreseeable future. As always, if you have tips, concerns, questions or story ideas, please reach out to Capitolized editor Arren Kimbel-Sannit at firstname.lastname@example.org.
Dude, Where’s My Bill?
Several bipartisan spending proposals — including the state’s budget, House Bill 2 — are still awaiting the endorsement of Senate President Jason Ellsworth almost a month after the end of the 68th legislative session, preventing them from reaching Gov. Greg Gianforte for his consideration.
The rules of the Legislature lay out a process that bills have to follow to become law. Once passed by both the House and Senate, bills are “enrolled” — an original and one duplicate of the bill are printed “free from all errors, with a margin of two inches at the top and one inch on each side.”
Following enrollment, the House speaker and Senate president must sign the bills before they go to the governor’s desk. But a handful of high-dollar bills that House Speaker Matt Regier, R-Kalispell, signed shortly after the end of the session still need Ellsworth’s approval.
Five bills appear to be awaiting Ellsworth’s signature: HB 2, House Bill 648, House Bill 332, House Bill 587 and House Bill 819. The Legislature’s bill-tracking database says an infrastructure spending bill, House Bill 355, is also on that list, but bill sponsor Rep. John Fitzpatrick, R-Anaconda, told Capitolized Thursday that he heard from the governor’s office yesterday that his bill is now awaiting Gianforte’s consideration and that he expects it to be signed.
Legislative Joint Rule 40-160 lays out a timeline for the enrollment process, but the rule text leaves some things unclear.
“A bill that has passed both houses of the Legislature by the 90th day,” the rule says, “may” be enrolled, signed and delivered to the governor “not later than 5 working days after the 90th legislative day.”
The “may” seems to suggest that legislative leaders can ignore the directive if they please. The usual venues for interpreting such rules are legislative rules committees, but with the session ended, those committees can’t meet except to prepare for the next session, code commissioner Todd Everts told Capitolized.
Kyle Schmauch, a spokesperson for Ellsworth, R-Hamilton, told MTFP last week that “bills are being transmitted to the governor in an orderly fashion, spaced out a bit instead of all at once.”
At least two of the bills still awaiting Ellsworth’s signature — the state budget and HB 648, an eligibility expansion for the state’s childcare scholarship program — are caught up in broader negotiations around attempts to override Gianforte’s vetoes of other legislation. Democrats said last week that Gianforte is threatening to veto HB 648, sponsored by Rep. Alice Buckley, D-Bozeman, and a $15 million supplement to Medicaid provider rates contained in HB 2 if the minority party supports efforts to override the governor’s veto of other bills.
Lawmakers can override gubernatorial vetoes with a two-thirds vote that’s conducted via mail if the Legislature is out of session.
That dynamic has led to suspicion among Dems that the Senate’s delay in sending those bills along is designed to allow Gianforte time for negotiations to play out before he decides what to do. The governor has 10 days to consider legislation that reaches his desk before it automatically becomes law.
“This all reeks of political gamesmanship on the part of the [Senate] president,” Senate Democratic chief of staff George Wolcott told Capitolized. “It’s worse that the bills we’re playing games with are the ones that directly impact some of the biggest real-world problems Montanans are facing — childcare, and in the case of HB 2, access to health care through provider rates.”
Multiple education stakeholders and lobbyists also told Capitolized Thursday they’re concerned, or at least confused, about the status of HB 332, which contains $40 million to establish a statewide health insurance trust for public school districts. Bill sponsor Rep. David Bedey, R-Hamilton, could not be reached for comment.
HB 2, in particular, must become law before the new fiscal year on July 1 to keep the state running.
“As the executive does their analysis, including possible line-item vetoes, which have a defined turn-around time, they will need to keep this in mind,” House Appropriations Committee Chairman Rep. Llew Jones, R-Conrad, told Capitolized. “Obviously the Senate president has chosen a methodology and order for sending bills to the executive. As the executive can analyze the bill prior to its formal arrival, I expect they can act quickly once it is in hand.”
And to the extent that anyone is leveraging the timeline of bill delivery to a particular end, Jones said, that’s part of how Helena does business.
“The executive, as the Legislature does, is certainly going to manage toward the outcome they feel best serves Montanans,” Jones said.
New Face on the Bench
Gov. Greg Gianforte last week appointed Billings Deputy City Attorney Thomas Pardy to a soon-to-be-vacant seat in Montana’s 13th Judicial District, which covers Yellowstone County.
Pardy will take over for Judge Michael Moses, who is retiring effective July 1.
The changing of the guard in the 13th district marks a seismic shift of Montana’s judicial landscape. Moses, an appointee of former Democratic Gov. Steve Bullock, has on multiple occasions halted policies favored by the Montana GOP and its lawmakers, including a series of election restrictions and a bill preventing transgender Montanans from changing their birth certificates. More recently, Moses revoked a permit the state issued for a natural gas plant in Laurel because, he ruled, the state prepared an inadequate environmental analysis — a decision that led to last-minute GOP legislation this session that changed how power plants are permitted in Montana.
In April, Senate Majority Leader Steve Fitzpatrick, R-Great Falls, described the bill as a response to “one of the more atrocious acts of judicial activism” he’s seen.
Pardy, one of four applicants for the position, currently represents the city of Billings in civil issues, but has also practiced both civil and criminal law.
In his application, Pardy described himself as a “strict constructionist” who “has no right to create new law from the bench,” echoing a frequent refrain from conservatives who see Montana’s judicial system as an obstacle to GOP policy objectives.
“What [Gianforte] said to me was he didn’t care if they were left-leaning or right-leaning, he just wanted someone who applied the law fairly without favor but respected the separation of powers,” said Greg Murphy, a Billings attorney who chaired an advisory council assembled by Gianforte to recommend candidates for the vacant spot, in an interview with Capitolized.
The council recommended both Pardy and Billings employment attorney Michelle Sullivan for the seat.
The vast majority of cases before the 13th District involve family and criminal matters.
“It’s probably one of the busiest courtrooms in the state,” advisory council member and former Yellowstone County Commissioner Bill Kennedy told Capitolized. “My biggest concern is the number of cases. We have a lot of family cases, a lot of criminal cases these days. Can you keep up with the pace? And it’s not an 8-5, Monday-Friday job.”
In his announcement of Pardy’s appointment, Gianforte described him as “an accomplished attorney who is committed to the fair, consistent, and objective application of the law and who will interpret laws, not make them from the bench.”
A group of Montana Constitutional Convention delegates and political activists are suing the state over legislation approved this year that they say illegally infringes on Montanans’ rights to propose citizens’ initiatives and referendums.
Senate Bill 93, sponsored by Sen. Mike Cuffe, R-Eureka, imposes a nonrefundable $3,700 filing fee on proponents of statutory and constitutional initiatives and referendums and blocks citizens from bringing forth similar initiatives more than once every four years.
Cuffe said in hearings on the bill that the filing fee will help cover costs incurred by state and legislative entities that review ballot initiatives.
“There’s a cost to doing these; that’s what the fee is about,” Cuffe told lawmakers in February.
But in a lawsuit filed in Helena district court May 26, the plaintiffs argue that the bill’s restrictions and conditions don’t exist in the Montana Constitution — which says “the people may enact laws by initiative on all matters except appropriations of money and local or special laws” — and are thus unconstitutional.
“The Montana Constitution does not provide any government entity with the power to interfere with, control or manipulate the timing and time of the People’s power to write initiative or referendum language, including the language of the initiative petition,” the lawsuit reads.
SB 93 began as a bipartisan “cleanup” bill drafted during the last legislative interim but was heavily amended during the 2023 session with input from business groups that opposed a previous initiative to restrict property tax rises. It passed the Legislature on mostly party lines and was signed by the governor on May 19.
Editor’s note: Bozeman attorney John Meyer, who is representing the plaintiffs in the lawsuit, is married to Montana Free Press reporter Amanda Eggert. Eggert did not contribute to the reporting or writing of this story.
By the Numbers
Number of bills Gov. Greg Gianforte has vetoed or line-item vetoed so far this year. That’s more than the 14 vetoes he issued following the 2021 session, but is dwarfed by the number of vetoes Democratic governors issued during Republican-led legislatures. Democratic Gov. Brian Schweitzer vetoed 78 bills in 2011. Gov. Steve Bullock, also a Democrat, vetoed 36 bills in 2019.
Veto politics set up standoffs between Gianforte and lawmakers: For more on the last few weeks’ convoluted, veto-induced politics and coalition-building, see this report from Montana Free Press.
Bill banning greenhouse gas analysis from permitting decisions heads to governor: Outgoing Yellowstone County District Court Judge Michael Moses is often in the news, and often not for reasons that make him popular among Republican politicians. For more on one of his high-profile rulings, see this story from Montana Free Press reporter Amanda Eggert.
Montana ConCon delegates challenge new barriers to citizen-led ballot initiatives: For a more fulsome accounting of the lawsuit against Senate Bill 93, see this story from the Helena Independent Record’s Sam Wilson. (Montana State News Bureau)