Republican legislators look to ‘rein in’ state judiciary

This story is excerpted from Capitolized, a weekly newsletter featuring expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Want to see Capitolized in your inbox every Thursday? Sign up here. 

Montana Senate Republican leadership this week announced the formation of a select committee to address “judicial overreach” following a series of adverse court rulings regarding laws passed by the Republican legislative majority. 

A press release from Senate President Jason Ellsworth, R-Hamilton, said the committee’s objectives include “creating legislation for the 2025 Legislature to rein in Montana courts’ abuse of power, restoring coequal power among Montana’s three branches of government, establishing more oversight of the judiciary, strengthening legislative rules and procedures, and improving court processes on important constitutional cases.”

Ellsworth pointed to a number of recent rulings that he said demonstrated “systemic overreach” and a violation of the balance of powers, both at the district court and Supreme Court levels. 

“Simply put, Montana’s courts are out of control,” he said. 

The establishment of the committee — the second interim committee that Republicans have set up to probe alleged impropriety or overreach by the judiciary in recent years — follows a landmark Montana Supreme Court ruling that four Republican-backed voting laws violate the state Constitution. The opinion quashed an effort by Republican Secretary of State Christi Jacobsen to reinstate those laws, which included stricter voter identification requirements and the elimination of Election Day voter registration, after a district court struck them down in 2022. 

Notably, the ruling displayed dissension among the justices about how far the Legislature’s authority extends when setting laws that govern state elections. Justices Dirk Sandefur and Jim Rice argued that lawmakers acted well within their constitutional bounds in enacting three of the four contested laws, and accused their fellow justices of exercising “unrestrained judicial power.” But the majority of the bench took a firm line that the Montana Constitution affords greater protections for voters than the U.S. Constitution, a bar they said the Legislature’s changes failed to clear.  

Republican legislative leaders have recently lambasted a number of other rulings, including one that allowed the legislative override of a contentious gubernatorial veto, which they said interfered with internal legislative rules, and an order holding that plaintiffs challenging a 2021 election law were entitled to attorney fees. 

A draft organizing document for the committee shared by Senate Republican leadership lists several policy changes the committee might consider. They include legal revisions to judicial recusals and elections, legislative rules, judicial discipline, ballot initiative review, the Montana Bar Association and more. One bullet point, situated under a section concerning the attorney fee ruling, reads: “Cut judicial branch budget?”

The committee has not yet announced its first meeting. On Tuesday, Ellsworth appointed to the committee Sens. Barry Usher, Steve Fitzpatrick, Tom McGillvray, Steve Hinebauch, Wendy McKamey, Chris Friedel, Mark Noland and Daniel Emrich — all Republicans. Ellsworth will chair the committee, while Usher, who formerly chaired the House Judiciary Committee, will serve as vice chair. Fitzpatrick, a Republican from Great Falls who serves as Senate majority leader, is the only attorney on the committee. 

The press release said Ellsworth was consulting with Senate Minority Leader Pat Flowers, D-Belgrade, about Democrats who might sit on the committee. But by Tuesday afternoon, legislative Democrats said they would not participate in the committee, which, Flowers said, had “reached its conclusions before it has even met.” 

“Instead of attacking another branch of government, we should be focusing on the real problems facing Montana families — skyrocketing property taxes, a housing crisis, and the biggest loss of health care our state has ever seen,” Flowers added. “As things stand now, we cannot participate in this process.”

House Minority Leader Kim Abbott, D-Helena, was even more pointed. In a statement Tuesday, Abbott said the “move by Republican Senate ‘leadership’ is just a temper tantrum from lawmakers who can’t face the fact that the courts are not the problem — it’s them and their unconstitutional legislation.” 

Friction between Republican legislators and the courts is nothing new. But the relationship between the two branches of government became a fixture in Montana politics following the 2021 legislative session, the first in 16 years where Republicans controlled both the Legislature and the governor’s office. In that session, Republicans passed and Gov. Greg Gianforte signed a bill giving the governor unilateral authority to fill vacant judicial positions. Litigation over that bill and general frustration among Republicans who routinely saw their legislation fail to pass constitutional muster in court fueled a protracted separation of powers conflict, during which some Republican officials openly flouted court orders. The conflict also saw the Legislature subpoena troves of judicial records, kicking off high-stakes litigation over legislative subpoena power. 

The 2021 dustup also led to the formation of a GOP-led select committee to investigate judicial lobbying, ethics and record retention that met just three times in 18 months. Republicans and Democrats on the committee produced separate reports, with Republicans highlighting “several concerns about the operations, procedures, and policies of the judicial branch” and recommending a suite of bills to reshape the judiciary and its internal practices. Democrats, meanwhile, accused Republicans in the Legislature and executive branch of leading a coordinated effort to discredit the judiciary. 

In the 2023 Legislature, Republicans increased the standards for issuing preliminary injunctions, changed the balance of power on the body in charge of judicial discipline and broadened legislative subpoena powers. But even with a supermajority, the caucus failed to cobble together enough votes to pass more dramatic changes, such as allowing for partisan judicial elections or reducing the number of justices on the Supreme Court.