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Brief Asks Court to Reconsider Its Actions Following Petition for Rehearing of SB 319 (2021) Attorney Fees Decision 

HELENA, Mont.— State legislative leaderstoday filed a motion to submit an amicus brief with the Montana Supreme Court as it considers a petition to reconsider its recent decision to award attorneys fees in a case about the 2021 Legislature’s Senate Bill 319. 

The legislators’ brief argues that the Montana Supreme Court’s decision conflicts with prior cases, made numerous factual errors, contained errors of law, and threatens a number of legislative processes that allow the Legislature to function in a timely and democratic way. 

The legislators are asking the Court to amend or modify its decision so that it does not “impair legislative function and independence.” 

Senate President Jason Ellsworth, R-Hamilton, and House Speaker Matt Regier, R-Kalispell, filed the brief along with Senate Majority Leader and Senate Rules Committee Chairman Steve Fitzpatrick, R-Great Falls, Senate Majority Whip Tom McGillvray, R-Billings, House Rules Committee Chairman Casey Knudsen, R-Malta, House Appropriations Chairman Llew Jones, R-Conrad, and House Business and Labor Chairman Ed Buttrey, R-Great Falls. 

“The Montana Supreme Court’s recent decision contains numerous errors and potentially devastating impacts to the Legislature’s ability to effectively make public policy,” said Ellsworth and Regier jointly. “We are urging the Court to reconsider and modify its decision to correct those errors and avoid unintended consequences.” 

Republican senators have been raising alarm about the Montana Supreme Court’s decision since it was issued earlier this year. Fitzpatrick highlighted the Court’s incorrect reading of legislative rules in a February press release and subsequent newspaper op-ed. In his own op-ed, Senate Judiciary Chairman Keith Regier, R-Kalispell, highlighted that the Court was violating separation of powers by improperly wading into the Legislature’s internal rules. Senator Greg Hertz, R-Polson, followed up to point out that the Court was not following its own precedents and was treating parties differently, in violation of the judicial principle of “equal justice under law.” 

Today’s amicus brief brings those arguments, and more, directly to the Montana Supreme Court. 

First, the brief points out that the Court’s decision conflicts with its own prior rulings, including a case highlighted both by Hertz in his newspaper op-ed and by Justices Jim Rice and Dirk Sandefur in their dissenting opinion. 

The brief next argues that the Court got at least five key facts wrong about the 2021 Legislature’s rules of operation. Those errors included a misunderstanding of the Legislature’s conference committee process, its rules about amendments, and its rules and practices regarding public participation.

The brief further argues that the Court made errors interpreting constitutional law surrounding separation of powers, legislative freedom of debate, and judicial norms for awarding attorney fees. 

Finally, the legislators want the Montana Supreme Court to be aware that its decision could have numerous unintended consequences for the Legislature’s ability to function as a branch of government. Those include: 

• Passing bipartisan legislation. “Many of the most significant pieces of legislation which have passed the Legislature in the last decade have moved through the Legislature based upon procedures which deviated from normal legislative procedures. If the Legislature had not deviated from legislative norms, these bipartisan pieces of legislation, which were supported by a coalition of Republicans and Democrats, would not have been enacted into law.” Examples of past consequential legislation the Court’s decision would have interfered with include the dark money campaign finance reform passed in 2015 (SB 289), Medicaid Expansion and the CSKT Water Compact passed in 2015 (SBs 262 and 405), and infrastructure projects passed in 2017 (HB 473).
  
• Amending bills and negotiating compromises, including passing the state budget. “Without a mechanism to work on the bill language, the Legislature may be unable to draft a workable piece of legislation…free conference is often the only tool available to amend a bill to implement any compromise agreements…the final product contained in House Bill 2 [the state budget], is often the result of a negotiation between the executive branch and legislative branch. In order to incorporate the negotiated changes into House Bill 2, a free conference committee may be needed to amend the bill.”
  
• Passing critical legislation, such as the state employee pay plan in 2017 or the major housing infrastructure bill in 2023, when elements of that legislation have failed earlier in a session.
  
• Operating the Legislature in an extremely democratic way, unlike many other state legislatures. The brief warns the Court that due to Montana’s legislative sessions being constitutionally limited to only 90 days, a decision that jeopardizes the Legislature’s ability to efficiently consider bills runs the risk of making the Legislature less democratic. Under longstanding rules, all bills are guaranteed to receive a hearing. If hearings can’t be done efficiently, rules governing the introduction and hearing of bills may need to change accordingly, reducing the power of individual legislators to represent their constituents. 

The decision of whether to consider these numerous concerns, which were not originally given an opportunity to be discussed in court, now rests with the Montana Supreme Court as its considers the state’s petition for rehearing. 

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