Montana Supreme Court agrees to rehear case centering on legislative rules, constitution

In an escalating stand-off between Montana’s judiciary and the legislature, the justices appeared to have blinked first.

In an unusual court order written by Montana Supreme Court Chief Justice Mike McGrath, the Montana Supreme Court unanimously granted a motion for rehearing, but narrowed what parts it would focus on, namely if the conclusion of the case which focused on a bill that was rushed and significantly changed in the closing hours of the 2021 Legislature hampers the lawmakers from performing their duties.

In the six-page order issued on Tuesday afternoon, the Supreme Court said it will not revisit the two larger, decided issues — whether the law, Senate Bill 319, was unconstitutional or whether to award attorneys’ fees to the groups which challenged it under a legal theory known as the private attorney general doctrine, which allows some plaintiffs to receive attorneys’ fees when they successfully challenge a law because it violates a constitutional principle. Senate Bill 319 was declared unconstitutional because it violated several different provisions of the state’s constitution, including the public’s right to know and a single-subject for bills.

The Montana Supreme Court had originally affirmed a lower district court’s ruling that struck down a law that passed in the waning hours of the 2021 Legislature in a “free conference committee.” Those ad-hoc committees are usually convened on short notice in the final days of the Legislature to finish work toward the end of a legislative session.

But the district court declined to award attorneys’ fees to the group that challenged the law. And though the state opted not to challenge the decision on SB 319, the plaintiffs’ attorneys appealed the attorneys’ fees decision to the Supreme Court, who decided the lawyers were entitled to seek attorneys’ fees, saying lawmakers were acting in “bad faith.”

However, on Tuesday, the Supreme Court ordered a rehearing on the matter, and essentially took back its previous decision, saying it would issue a new order sometime in the future.

The opinion said that the now-recalled court opinion added confusion when the Supreme Court weighed in on the legality of the Legislature’s own operating rules, which drew a harsh rebuke from Republican leaders in Helena, who said that the ruling had overstepped the separation of powers between the judiciary and legislative branches. The Supreme Court’s decision ultimately was among the recent decisions that triggered the formation of a second select Montana Senate Committee that is charged with looking into the practices of Montana’s judicial branch.

Even though the high court unanimously agreed to rehear the case, the two justices who wrote a dissenting opinion in the original case, Justices Dirk Sandefur and Jim Rice, said they agreed with the rehearing, but not the other portion of Tuesday’s six-page opinion.

“While we disagree with much of what is stated within the order, and with the court’s denial of rehearing the merits of its reversal of the district court’s denial of attorneys’ fees in the matter, we nonetheless concur in granting rehearing on the basis cited by the court,” wrote Sandefur and Rice.

Meanwhile the majority of justices said they were recalling their decision, not to redefine whether Senate Bill 319 violated the provisions of the Montana Constitution, a decision that even Montana Attorney General Austin Knudsen decided not to appeal. Instead, they were concerned that the decision caused confusion about whether the high court was wrongly interfering with internal operating procedures of the legislature and its rules, which allow for such things like free conference committees.

“It is apparent that some of the wording in our opinion has created some confusion,” the Supreme Court’s majority order said. “As such, to the extent that our opinion suggested binding legal interpretations of internal legislative rules, the petition is granted and an amended opinion will be filed.”

The Senate Republicans received the news with mixed reactions.

“I’m glad to see the Supreme Court realize that they messed up by intruding into the Legislature’s internal rules and are withdrawing their original decision. We in the Legislature eagerly await the court’s new opinion to ensure that it does not also unconstitutionally violate the separation of powers between our branches of government,” said Montana Senate President Jason Ellsworth, R-Hamilton.  “At the same time, I’m extremely disappointed to see that the Court is trying to have it both ways, maintaining that they’re still going to award taxpayer money to their liberal lawyer allies even after they remove most of their ‘evidence’ that such a handout is warranted. It’s a shame that the court continues to give liberal plaintiffs preferential treatment compared to conservatives who’ve filed similar lawsuits in the past.”

However, the court pressed back against the allegations that it had no business deciding the constitutionality of laws passed by the legislature, or that judicial decisions were a violation of separation of powers.

“There is nothing wrong with legislative ‘sausage making’ and the Legislature is free to interpret and implement its own internal rules, including the timing of its meetings, the amendment of bills and other issues the legislators raise as example of how our opinion limits their work — as long as no constitutional provision is violated,” the opinion said. “(The Legislature) ignore the crux of our decision to award attorneys fees rested on the bad faith of the Legislature in willfully enacting unconstitutional laws.”

Legislators’ argument

Ellsworth, along with Montana House Speaker Matt Regier, R-Kalispell, wrote an amicus brief urging the court’s reconsideration. In it, they said that the decision in the case threatens the independence of the Legislature to establish its own rules. Furthermore, the ruling, they said in the brief, could have a lasting chilling effect on lawmakers if they could not comment on bills or complete their work.

The brief argued that the Supreme Court is stepping too far into the lawmakers’ business, and that it has to have the autonomy to adopt rules that get the work of the people done.

Meanwhile, the court’s opinion on Tuesday addressed part of that, by saying the lawmakers are free to adopt their own rules for operation, but those rules cannot run afoul of the state constitutional provisions, like the public’s right to know.

The amicus brief also said that free conference committees, like the one that produced SB 319, were also held many times before the 2021 Legislative session, and bills passed out of those committees and became law without a Supreme Court challenge. The lawmakers worried that if the state’s high court struck down SB 319 because of the committee format, other bills that were passed in a similar manner would also be declared void.

Ellsworth and Regier argued that lawmakers must have the latitude to finish the work of Legislature in an organized, timely fashion, and that the process is the “innocent byproduct of end of session time constraints.”

Editor’s note: This story has been updated to reflect that Senate Bill 319 was passed by the 2021 Legislature.