Supreme Court’s opinion on legal fees spirals into claims of political bias

Montana’s governor will have to pay the legal bills of the Montana Environmental Information Center and Earthworks under a state Supreme Court ruling issued May 29.

Supreme Court justices split 4-3 on the decision, with dissenting Justice Jim Rice accusing the prevailing majority of bias against Republicans.

Justice Laurie McKinnon, who authored the opinion for the majority, called Rice’s dissent inappropriate and unprofessional, while also leveling the criticism at newly elected Chief Justice Cory Swanson.

The two environmental groups successfully sued Republican Gov. Greg Gianforte in 2022 for the communications between the executive branch and Hecla Mining. Five months had passed since the groups first requested the communications under the “right to know” provision of the Montana Constitution.

Gianforte’s administration had reversed course on a “bad actor” designation assigned to Hecla during former Democratic Gov. Steve Bullock’s tenure. MEIC and Earthworks wanted to know why, given that Hecla at the time of the reversal was pursuing the development of two northwest Montana hard rock mines in Lincoln and Sanders counties. 

The “bad actor” designation stemmed from Hecla CEO Phillips S. Baker, Jr.’s, previous role at Pegasus Gold, a mining company that failed to clean up the Zortman Mine in northcentral Montana, leaving the work to the state. 

MEIC Director Anne Hedges told Montana Free Press on May 29 that legal costs for the lawsuit had yet to be calculated. 

The plaintiffs in the records lawsuit deserved to have their legal fees paid because calling for the enforcement of Montana’s right-to-know provision of the state Constitution benefitted the greater public interest, the Supreme Court ruled.

 “When a party succeeds in litigation based on a right to know request, it has performed a public service in ensuring that Montana’s government is appropriately transparent and accountable to the people,” McKinnon wrote in the court’s majority opinion. “Such cases serve a critical role in enforcing and developing Montanans’ fundamental right to know.” 

Not awarding attorney’s fees would have a chilling effect on the public suing to have their rights upheld, McKinnon said. 

A Lewis and Clark County court in 2023 ordered the governor to produce the record, despite Gianforte’s claim of an executive communications privilege. However, District Judge Christopher Abbott ruled against awarding legal fees to MEIC and Earthworks.

In doing so, Abbott said that Gianforte hadn’t “acted out of bad faith, indolence, or unreasonable delay” in declining to release the public records. Furthermore, the records sought by MEIC could have been produced through discovery in a separate lawsuit, Abbott wrote.

It was enough for the dissenting justices that Abbott explained his rationale, Justice Beth Baker explained, arguing that the state Supreme Court hadn’t set firm guidelines for awarding legal fees in public records cases.

In his dissent, Rice accused the prevailing justices of partisan bias and issuing a ruling based on “no governing law at all.” 

“So what are the Republican Defendant (Gianforte)  and Republicans in general — and anyone concerned about impartiality — supposed to make of the Court’s decision today, especially in view of these prior fee decisions?” wrote Rice, who cited three cases concerning fees with rulings he considered incongruent with the May 29 ruling. “That this is simply another coincidental Republican defeat in a run of bad case outcomes resulting from the Court’s careful application of established legal principles? Or, that this is another case where the Court has jettisoned long-established governing authority and backfilled the vacuum with its own preferences to weaponize the law, whether it be statute or the private attorney general doctrine, against them.”

The fuse was lit.

McKinnon, writing separately from her opinion for the majority, called Rice’s remarks “particularly disturbing because the dissent’s bitter partisan and political attacks on fellow justices and this Court are endorsed by a newly elected Chief Justice, who did not participate in the deliberations, arguments, discussions, or draft opinions that ultimately evolved into the Court’s decisions and, therefore, has no basis to deride the motivations of the justices deciding these difficult cases as being political and policy driven.”

Justice Jim Shea, who ruled with the court majority, tallied up the state Supreme Court rulings concerning state government since Gianforte took office in 2021. There are 45 cases. The state prevailed in 32 of those opinions, a win rate of 71%.

“If a two-thirds-plus win rate constitutes a ‘run of bad case outcomes,’ I do not dare consider what many of the parties that practice before us must think of their win rates or the ostensible ‘personal preferences, desires, agendas, and even biases’ they ascribe to us,” Shea wrote.

The court had ruled in three cases in which Gianforte was the defendant since 2021. “I authored the two opinions in which the governor prevailed,” Shea wrote. “Justice Rice authored the opinion in which the governor lost.”

Both Swanson in 2024 and Rice in 2022 were endorsed by Gianforte in state judicial elections, which don’t allow candidates to declare political affiliation. The U.S. Supreme Court has ruled that in Montana’s nonpartisan judicial elections endorsements like Gianforte’s are a right of free speech.

Swanson wrote in his own dissent that it was his duty as chief justice, a post he assumed in January, to articulate his interpretation of the law.

“We agree with each other far more than we disagree. And after more than a hundred published Opinions this year, this is the first occasion when these differing views on the Court’s methodology have inflamed our public conversation,” Swanson wrote. “If anyone bothers to read this already way-too-long opinion, they may make political hay of it. We cannot control that narrative; we can only do our duty as we understand our duty.”

Beside the din of judicial bickering, plaintiffs MEIC and Earthworks celebrated a ruling that could set the foundation for state government having to pay legal fees to members of the public who, as a last resort, sue to have Montana’s right-to-know laws upheld.

“This is a big win for government transparency,” said Bonnie Gestring, of Earthworks, in a press release May 29. “Montanans have a constitutional right to review government documents, but this right becomes meaningless if citizens are expected to shoulder the cost of litigation when the government stonewalls a legitimate Right-to-Know request.”

The privilege issue at the heart of Gov. Gianforte’s defense is still fresh. On May 16 Gianforte vetoed House Bill 271, which would have limited the governor’s ability to assert executive privilege to keep information confidential.

In January, the state Supreme Court recognized, in a separate case, that Montana’s governor does have some executive privilege concerning candid legal advice, but that a court must review the information to determine what’s private.