In wake of court decisions, Montana Senate GOP forms select committee on ‘judicial reform’

The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)

Montana Senate Republicans are launching a new special select committee following several court decisions that went against their favored outcomes, saying those decisions overstepped the separation of powers and alleging several courts violated the state Constitution in the same process.

Almost simultaneously, Montana Senate President Jason Ellsworth issued a subpoena to the Secretary of State Tuesday asking for all copies of a proposed ballot initiative that the Supreme Court wrote the ballot statement for on Monday and sent to the Secretary of State directly, saying it did not need to go through the legislative review process because the attorney general never found the proposal to be legally sufficient, thus not triggering that provision of statute.

Tuesday’s announcement marks the second time in two years Republican lawmakers will form a special committee to try and address what they believe are wrongfully decided court decisions or procedural missteps ahead of the next legislative session. But Democratic leadership said they did not plan to participate in the committee as of Tuesday.

The committee will be called the Senate Select Committee on Judicial Oversight and Reform – similar to the Special Select Committee on Judicial Accountability and Transparency launched in 2021 that stemmed from a fight between Republicans in the Legislature and the Montana Supreme Court over judicial records.

That committee produced a report, adopted on a party-line vote, sharply criticizing the judiciary for how it interacts with the legislative branch and calling for more legislative oversight of the judicial branch, which Democrats said included “unjustified” statements that constituted “an outrageous attack.”

But during the past several months, a wave of district and Supreme Court decisions have come down against the Gianforte administration and, at times, against the Republican lawmakers, which has angered Senate GOP leadership in particular.

Last week, in response to a Supreme Court decision that upheld injunctions permanently blocking voting laws passed by lawmakers in the 2021 session, Ellsworth, R-Hamilton, hinted that he was likely to form another committee he said would be “tasked with addressing our out-of-control courts.”

The Senate majority sent a planning document to other lawmakers and staffers on Tuesday morning outlining the goals of the committee, which include trying to shore up law where courts have ruled against Republicans and find ways to have more oversight over the courts.

“Simply put, Montana’s courts are out of control. They’re seizing power that doesn’t belong to them and undermining our constitutional system of checks and balances,” Ellsworth said in a statement.

Ellsworth in March declared his candidacy in the Republican primary for the Clerk of the Supreme Court seat, currently held by Republican Bowen Greenwood. The role is primarily as a records custodian and compliance official, but his declaration signals his interest in court oversight.

He and others in Senate Republican leadership have also been outspoken in their disagreements with the more recent court decisions, sending the court official letters, participating in amicus curiae briefs, and writing editorials criticizing the decisions.

That includes their letter to the Supreme Court protesting the court-ordered override poll for a marijuana revenue redistribution bill as being an unconstitutional order and an illegal poll and saying they will not participate; the opposition to the decision last week that upheld injunctions against several bills that changed or restricted voting access in 2021; as well as a brief requesting a rehearing of a case involving an order saying plaintiffs’ attorneys deserve fees because the laws they challenged vindicated important constitutional interests the attorney general did not defend involving the Legislature’s actions.

Republican lawmakers have also filed amicus curiae briefs arguing a Lewis and Clark County District Court judge overstepped their powers in deciding the state was violating the constitutional rights of its citizens by implementing the limitation to the Montana Environmental Policy Act, and have been upset that some of their housing bills passed last session were temporarily blocked by a judge in Gallatin County.

On Monday, the Supreme Court in a 6-0 decision, wrote the ballot statement for a proposed amendment to enshrine abortion in the state Constitution, overturning the statement written by Republican Attorney General Austin Knudsen that the court found to be deficient and saying the proposed ballot issue does not have to go before an interim committee for review because of the way the statute was written by lawmakers.

On Tuesday, Ellsworth issued the subpoena to the Secretary of State attempting to take hold of the ballot initiative so it can go to the interim committee first, urging Secretary of State Christi Jacobsen to comply with his subpoena and saying the court is “effing around” and will be “finding out.” The Secretary of State’s Office said late Tuesday it intended to comply with both the subpoena and Monday’s court order.

“Only two of the seven Supreme Court justices, Jim Rice and Dirk Sandefur, are showing a modicum of judicial restraint. Multiple district court judges are also attempting to take the law into their own hands,” Ellsworth said in a statement. “The Legislature must address this systemic overreach and restore the balance of power within our government that Montana’s constitution demands.”

Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said in an interim committee meeting on March 14 he wanted to draft a series of rules changes seeking to address the attorney’s fees case and the rules that led to a district court judge’s ruling in January that Gianforte’s veto of Senate Bill 442 was done improperly because it left the legislature with no way to override the veto.

He had contemplated those rules changes going through the rules committee. But Tuesday’s announcement signals there could be more bills in the next session aiming to directly address court decisions that Republicans have been unhappy with.

The planning document shared by a spokesperson for Senate Republicans says the committee’s objectives will be to craft legislation both to “rein in Montana courts’ abuse of power” and to “provide more oversight of the judiciary.” It will also be tasked with restoring “coequal power” among the branches of government, propose legislative rule changes in the wake of court decisions that implicated them, and bills to ensure “fair tribunals” and court and “adherence to (the) constitution on legal questions.”

The document directly points to the Senate Bill 442 case, the Forward Montana attorneys’ fee case, and Monday’s abortion initiative ruling as things that need to be addressed, and says the committee will re-hash legislation and proposals from 2023, study the prior select committee’s majority report, as well as the right-wing think tank Frontier Institute’s “analysis of judicial problems.”

That includes looking at rules over vetoes, bill possession, and override process; ensuring a legislative committee reviews all ballot initiatives; creating legislation that would say the courts can’t interpret legislative rules or saying they would have to defer to the Legislative Rules Committee before rendering an opinion; and prohibiting the awarding of attorneys’ fees when lawmakers violate legislative rules.

Other prospects, according to the document, include cutting the budget for the judicial branch, being able to recall justices if opinions were overturned by the U.S. Supreme Court, separating the Montana Bar from the judicial branch, allowing judges to run on a partisan basis, and crafting legislation to prevent the governor from making recess appointments without a Senate confirmation hearing. Some of the proposals were brought up in the 2023 session but died in the process.

The select committee will be a Senate committee only, as House rules do not allow for the appointment of select committees during the interim. According to the Senate GOP, the select committee will be funded with $35,000 left over from the Select Committee on Judicial Accountability.

Senate Minority Leader Pat Flowers, D-Belgrade, said in a statement that Ellsworth released the plans before he had serious time to discuss the committee with him and said currently, Democrats did not plan to participate in the committee.

“Unfortunately, it is clear that he has chosen to form a committee that has reached its conclusions before it has even met,” Flowers said. “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.”

Ellsworth has already appointed himself, Fitzpatrick, and eight other Republican senators to the committee.

The other Republican members of the committee aside from Ellsworth, who will lead the committee as its chairman, and Fitzpatrick, will be: Sens. Barry Usher (Billings), who will be vice chair; Daniel Emrich (Great Falls); Carl Glimm (Kila); Wendy McKamey (Great Falls); Tom McGillvray (Bililngs); Mark Noland (Bigfork); Steve Hinebauch (Wibaux) and Chris Friedel (Billings).

Editor’s note: This story has been updated to note the Secretary of State’s Office said it intends to comply with both the Supreme Court order and Ellsworth’s subpoena.

Judicial Select Committee planning document

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