HELENA — On Thursday, the Montana House and Senate voted on seven Republican-sponsored bills that would make changes to the state’s judicial branch and legal system. Six of them are moving forward, while the last fell just short of a majority.
This is just the latest step in what’s likely to be a session-long debate over the judiciary. Over the last three legislative sessions, Republican lawmakers have accused Montana judges of displaying bias and overstepping their authority, and GOP leaders have made judiciary bills a main priority this year. Democrats have claimed Republicans are attacking the judicial branch’s independence.
Of the seven bills debated Thursday, five were from a slate of 27 bills, proposed by a Republican-led select committee last year.
The Senate endorsed two bills dealing with judges and attorneys Thursday, both on party-line votes, with 32 Republicans in support and 18 Democrats in opposition:
· Senate Bill 13, sponsored by Sen. Daniel Emrich, R-Great Falls, would require lawsuits over whether a proposed ballot initiative meets legal requirements to start in a lower court instead of the Montana Supreme Court.
· Senate Bill 92, sponsored by Sen. John Fuller, R-Kalispell, would make membership in the State Bar of Montana voluntary. It’s currently a requirement for licensed attorneys in the state.
During the debate on SB 92, supporters argued that the State Bar has taken political stances, and that lawyers should have the right not to participate in the group, through the principle of freedom of association. Opponents said the bar does provide important functions.
“I haven't had a lawyer come up to me and tell me that they're displeased with the process and do not want their money going into something that makes sure our profession is respectable, respectful and provides a high level of services throughout the state,” said Sen. Shane Morigeau, D-Missoula, who is an attorney and bar member.
But Sen. Barry Usher, R-Yellowstone County, said he had heard from lawyers who weren’t satisfied as bar members.
“They're sick and tired of being forced to go to things that they don't agree with, and you get $7 back if you don't want to be involved in their political,” he said.
The State Bar’s president told lawmakers earlier this month they refund some of members’ dues if they object to the association’s position on legislation.
Democrats also argued SB 92 might be unconstitutional, because the Montana Constitution gives the state Supreme Court the authority to create rules for the judicial system, including for things like admission to the bar. However, Sen. Greg Hertz, R-Polson, pointed back to Supreme Court rulings that Republican lawmakers believe infringed on the Legislature’s ability to interpret its own rules.
“If they're going to look at this and say we're stepping on their rules, they've already kind of opened the door here in interpretation of what rules are like,” Hertz said.
Senate Minority Leader Sen. Pat Flowers, D-Belgrade, alluded to the larger debates about the role of the judiciary, saying these bills were a response to earlier legislation from the Republican majority being thrown out in court.
“As we start down this path for the next many weeks, we start with a bill that we've been warned is unconstitutional,” he said. “So maybe the good news is, you'll have more to complain about because this will go to court and likely be overturned – and it's that darn overzealous court again.”
The Senate was also set to vote Thursday on Senate Bill 97, sponsored by Fuller, which would change what court would hear challenges to newly enacted state laws. However, leaders delayed consideration of the bill.
On the House side, four bills advanced on Thursday:
· House Bill 35, sponsored by Rep. Fiona Nave, R-Columbus, would move supervision of the Judicial Standards Commission, which investigates complaints against judges, from the judicial branch to the Montana Department of Justice.
· House Bill 36, sponsored by Nave, would prevent a judge from chairing the Judicial Standards Commission. The commission includes two judges, one attorney and two citizens who are neither judges nor attorneys.
· House Bill 65, sponsored by Rep. Lee Deming, R-Laurel, would require the Legislative Audit Division to conduct a “performance audit” on the State Bar and its funding and spending.
· House Bill 169, sponsored by Rep. Tom Millett, R-Marion, would allow candidates for judicial positions to accept endorsements from political candidates – including partisan ones – and political organizations. If the Legislature later approves the proposal to make judicial elections partisan, HB 169 would allow judicial candidates to endorse and make contributions to candidates for other offices.
Most Republicans backed all of the bills – though for each one, at least one Republican joined Democrats in voting against it. HB 65 advanced on a 51-49 vote, with seven Republicans in opposition.
A fifth bill, House Bill 30, failed on a tied vote – 50-50, with eight Republicans voting against it. HB 30, sponsored by Deming, would have raised the standard for a court to overturn a legislative action as unconstitutional, saying the court would have to uphold those actions “unless the challenger demonstrates that the legislative act is unconstitutional beyond a reasonable doubt.”
The six bills endorsed by the House and Senate Thursday will have to pass final votes on Friday before moving to the other chamber for consideration.
