Proposed ballot measure would strip Supreme Court’s ability to determine who can become a lawyer in Montana 

A 12-year-old has been given approval to begin gathering signatures on a 2024 ballot initiative she’s organizing that would remove the Montana Supreme Court’s constitutional authority to determine who can become a lawyer in Montana.

Nicole Bennett, a homeschooler from Red Lodge, said she wants to provide a path to becoming a lawyer that doesn’t necessarily go through law school, which she argues carries a hefty price tag and time commitment that unfairly limits the pool of potential attorneys. Montana, along with all but a small handful of states, requires those taking the bar exam to hold a juris doctor degree from an accredited law school. 

“It definitely should be open to everybody,” she said in an interview with Montana Free Press Tuesday, adding that she’s spoken to “doctors, social workers, police officers” and others who would be interested in the legal profession if not for the law school requirement. She said would-be attorneys should be able to apprentice under a lawyer or even teach themselves the law, as the famously self-educated Abraham Lincoln did. 

But the initiative, now called Ballot Issue #7, would also make dramatic changes to the rules governing conduct of attorneys in the state, striking language in the Montana Constitution that gives the state Supreme Court the ability to make rules governing “admission to the bar and the conduct of its members.”

The office of Republican Montana Attorney General Austin Knudsen deemed the measure legally sufficient last month, despite the protests of the Montana Bar Association, which argued that the initiative would unconstitutionally remove a power inherent to the judicial branch at the expense of quality, competent representation for citizens. 

And the bar association and other critics say that change proposed in the initiative would not only make it possible for lawyers to pass the bar without going to law school — something they argue is unwise — but also remove the court’s power to regulate the practice of law in Montana without a clear regulatory framework to replace it. The actual text of the proposed constitutional amendment, they note, only removes language, adding nothing about the Legislature or any other body replacing the high court’s regulatory role. 

“Over many decades, the Montana Supreme Court has crafted standards for character and fitness, requirements for legal education and a bar exam, and those for the ethical conduct of attorneys, including things like the reasonableness of lawyers’ fees,” John Mudd, the executive director of the State Bar of Montana, said in a statement last week. “The court has done this work for one reason: to protect the public and clients from lawyers who lack basic good character, competence, or fail to adhere to the Montana Rules of Professional Conduct in the representation of their clients.”

The proposed initiative, Mudd said, “would scrap all of those basic protections, including rules of ethics, and does not replace them with anything at all; allowing anyone to hold themselves out as a lawyer with no required training, no exam and, alarmingly, no rules of professional conduct.”

Bennett said Tuesday it’s not her intent to allow lawyers to practice without taking the bar.

Bennett comes from a politically involved family. Her mother, Lisa Bennett — who helped set up an interview with her daughter — and father, Chip, are Carbon County activists who’ve made sweeping claims of election fraud in their community based on a video they believe shows election workers shredding absentee ballots. The county has said the video actually shows election workers shredding emailed copies of overseas ballots after they’ve been transposed to official paper ballots. 

Lisa Bennett has occasionally testified before the Legislature, including in support of a pair of failed bills last session that would have allowed citizens to form grand juries via petition, an idea historically popular in the right-wing militia movement. A ballot initiative to the same effect is currently under legal review by Knudsen’s office. 

Nicole Bennett said the idea for the initiative took root when she participated in TeenPact, an organization with chapters in dozens of states that “seeks to inspire youth in their relationship with Christ and train them to understand the political process, value their liberty, defend the Christian faith, and engage the culture around them,” according to the TeenPact website. Bennett said she was tasked with writing and presenting sample legislation as part of the program. 

Bennett’s idea surfaced this session in the form of Circle Republican Rep. Jerry Schillinger’s House Bill 965, a proposed constitutional amendment removing Supreme Court rulemaking authority. It was one of several GOP-backed bills over the last two sessions that proposed dramatic changes to the court’s practices and relationships with the other branches of government. Conflict between partisans and the judiciary is nothing new, but it’s been especially pronounced in Montana in recent years as a growing majority of conservative lawmakers have repeatedly seen their legislative agenda fall afoul of the state constitution and the courts. 

Schillinger said during a hearing on the bill that he was contacted by Nicole Bennett and her family and that the younger Bennett wanted the opportunity to become a self-educated attorney. 

“This change would also alleviate the issue of intimidation that exists now at times and limits attorneys’ free speech considering criticism of the Supreme Court, knowing that the court has disciplinary power over them,” Schillinger said during a committee hearing on the bill. 

The bill generated sharp opposition and ultimately died on a 45-55 House floor vote with 23 Republicans and all Democrats voting “no.” 

“The constituent wants to be able to read for the practice of law, which was certainly a practice back in the 18th century, but unfortunately times have changed,” Bruce Spencer, a lobbyist for the bar association, told the House Judiciary Committee at the time. “Things are much more complicated now.”

The change, he said, would also make Montana the only state in the nation where the Supreme Court does not regulate admission to the practice of law. 

The Bennetts submitted the proposal in the form of a ballot initiative in early May, a few days after the 68th Legislature adjourned. After some back-and-forth with legislative staff attorneys over proper language and formatting, the measure was forwarded to the Montana secretary of state and then the state attorney general for review. 

In July, the bar association wrote the attorney general’s office with “grave concerns” about the proposed initiative, asking the AG to deem the measure legally insufficient “as it violates the inherent power of the Judicial Branch and the Montana Supreme Court” and is “unquestionably and palpably unconstitutional on its face.” 

The original Montana Constitution did not specifically enumerate the court’s power to regulate the practice of law in the state, and the Montana Legislature has historically passed some statutes regulating attorney conduct and admission to the bar. But the bar association argued in its letter to the attorney general that the court has nonetheless “clearly held that this power is inherent to the Court and predates the 1972 Montana Constitution.” 

The association pointed to a 1969 lawsuit filed by James Goetz — now a prominent Montana litigator who, at the time, was a recent graduate of Yale Law School. In that suit, Goetz challenged the state’s “diploma privilege” law, which permitted graduates of the University of Montana law school to practice law in the state without passing the bar. But the Supreme Court held that while the diploma privilege law was enacted by the Legislature, it has since become more than just a law.

“It has been applied as a rule of the Montana Supreme Court,” the court wrote then. “The admission and regulation of attorneys in Montana is a matter peculiarly within the inherent power of this Court, subject, of course, to constitutional guaranties, which the Court has always zealously guarded.”

Previous cases yielded similar findings, the association said. In sum, the state bar argued that the judicial branch has some inherent powers by virtue of its establishment, including the power to decide who can represent individuals before the court and how they conduct themselves. 

That’s for good reason, Mudd said. Codes of judicial conduct exist to protect clients and ensure they receive adequate representation. And even if the Legislature were to come up with laws to replace those codes, those rules and regulations would be subject to the biennial caprice of partisans, many of whom have no experience with the law, critics of the initiative argue. 

But to the initiative backers, that’s part of the idea. Nicole Bennett wrote in support of the initiative that the legal profession “should have its licensing regulated by the legislature so we the people can request common-sense laws to protect and promote our interests in the courts.” 

Regardless, the attorney general didn’t agree with the bar association’s case. The office’s legal sufficiency finding denies that any branch of government has an inherent power beyond what the people grant it. 

“All government authority, regardless of branch, derives from the people,” the AG’s office wrote. “The State Bar’s position is an untenable statement that some elements of government operate beyond popular sovereignty. The question of who will regulate the practice of law will be an open question if voters pass Ballot Issue No. 7. But the State Bar’s position must be incorrect otherwise the people don’t have full authority over their own government.” 

A petition for a constitutional initiative needs to be signed by at least 10% of the qualified electors in the state in order to land on the ballot. The AG’s determination of legal sufficiency is itself subject to judicial review, so the bar association or another party could seek to halt signature gathering by challenging the attorney general’s finding, though it’s not clear whether that will happen.