17-02-2025
Some Judicial reform bills stalling, cast aside
Senator Daniel Emrich, R-Great Falls, votes 'No' during a session of the Montana Senate on February 12, 2025. (Nathaniel Bailey for the Daily Montanan)
The GOP-controlled Montana Legislature laid out reining in the judicial branch as a priority at the start of the 69th legislative session currently underway, but that ambition has not smoothly born out as almost a third of its planned actions have failed.
The push for judicial reform centers on a suite of 27 bills that came from the interim Judicial Oversight and Reform committee, formed by former Senate President Jason Ellsworth, R-Hamilton, following several court decisions that went against Republicans' favored outcomes.
Six weeks into the 90-day session, almost all of those judicial bills have been debated on a chamber floor, with a majority receiving at least one passing vote.
However, several bills deemed most important by members of the interim committee have been foiled by a voting bloc comprising all Democrats, who chose not to participate in the committee because they did not want to legitimize its efforts, and a group of moderate Republicans.
One bill that died on the Senate floor late last month was Senate Bill 44, carried by Sen. Daniel Emrich, R-Great Falls, which would have codified the separation of powers doctrine in the Montana Constitution into statute, and defined the powers of the Board of Regents of Higher Education and the Board of Public Education.
Emrich previously said the bill is 'one of the most important bills you may see this session.'
The bill passed second reading in the Senate in a 32-18 party line vote, but the next day failed on third reading 23-26 with eight Republicans switching their votes.
More recently, Senate Bill 43, sponsored by Emrich, and House Bill 30 also failed to garner enough support to pass the Senate during the chamber's first Saturday floor session on Feb. 15.
SB 43 would have limited the injunctive powers of courts by narrowly tailoring them to the plaintiffs of a case — instead of applying to all Montanans.
'I'm struggling with this one because I didn't fully understand the consequences of how this could be, I guess, abused,' said Ellsworth, who noted the bill came from his committee. 'We've seen activist judges across the country, and I don't think this actually solves that problem, I think it compounds it.'
Two Democratic senators, both lawyers, laid out scenarios where a narrowly tailored injunction that applied to specific counties or regions could leave the rest of Montanans having to file their own lawsuits to receive the same protection from an alleged constitutional violation.
'It's unfair to all Montanans,' Sen. Andrea Olsen, D-Missoula, said. 'If you have a constitutional violation to one person, it's a violation to everybody.'
The Senate voted down SB 43 in a 21-28 vote.
House Bill 30, which passed by a single vote in the lower chamber, was defeated by the same one-vote margin in the Senate. HB 30 would have required the state Supreme Court to uphold legislative acts as constitutional unless challengers can prove otherwise 'beyond a reasonable doubt.'
On Valentine's Day, the Senate indefinitely tabled two more bills from the House that failed to garner enough support to pass the upper chamber, but moved a few others through the process.
House Bills 35 and 36, which would have moved the Judicial Standards Commission — a body that can discipline and recommend removal of judges for conduct violations — to the Department of Justice and altered its structure, also died.
The Senate did pass Senate Bill 20, carried by Ellsworth, prohibiting retired judges from hearing constitutional cases.
Lawmakers also approved of House Bill 39, allowing political parties to financially contribute directly to judicial candidates. The bill is now headed to the desk of Gov. Greg Gianforte, who has also called for judicial reform.
HB 39 is one of three related bills seeking to make Montana's judicial elections partisan affairs, along with HB 169, which allows judges and judicial candidates to take part in political activities, and SB 42, which will require judges to declare a political party for the ballot.
The Senate also passed HB 65 to perform a performance audit of the State Bar of Montana. That bill will have a hearing before the Senate Finance and Claims Committee before returning for a final vote in the Senate.
That bill will have to be accepted by the House again after an amendment changed the audit from focusing on finances — as the House approved — to focusing on performance — which was initially rejected by the lower chamber's vote.
Two bills have been withdrawn — SB 16 and SB 52 — dealing with legislative committee contempt subpoenas and the creation of a new court.
The latter proposal, which would have created a Chancery Court to hear cases dealing with constitutional, land use and business suits, was withdrawn by bill sponsor Sen. McGillvray, who said it was getting too complicated.
Instead, he is working to draft a new version of the specialized court for the session, but narrowing the scope to focus to remove the land and business portions.
The new version, a 'Governmental Claims court,' would be 'more streamlined and simple, and I think it's gotten more buy-in from more parties,' McGillvray told press last week.
