HELENA — After months of hearings, Republicans on a state legislative committee have come out with their final list of proposed bills, intended as a response to conflicts over the proper role of the judicial branch.
The Senate Select Committee on Judicial Oversight and Reform wrapped up its work on Wednesday, advancing 27 bill drafts that together would make a significant change in how Montana’s judiciary operates.
“I think it would be huge, but I also think that we need to have our judiciary fair and impartial,” said Sen. Barry Usher, R-Yellowstone County, the committee’s vice chair.
Senate President Sen. Jason Ellsworth, R-Hamilton, created the committee in April, after a series of court rulings that he and other GOP leaders argued had overstepped the judiciary’s authority.
The committee held about a dozen meetings, starting with extensive discussions and presentations about the history of the judiciary and its relations with other branches, then moving into consideration of possible legislation.
The 27 proposed bills cover a wide variety of topics, from changing the procedures for evaluating judges and judicial conduct to raising the bar for courts to overturn legislative actions as unconstitutional.
Usher said the people he’s talked to identified two of the proposals as the most important. The first would create a “Court of Chancery,” a new state-level court appointed by the governor that would take over responsibility for cases involving business disputes, land use and challenges to the constitutionality of laws. Because the Montana Constitution guarantees the state Supreme Court’s jurisdiction over all other courts, Usher said the Court of Chancery’s decisions could be appealed to the Supreme Court.
The second proposal Usher pointed to would require candidates in judicial elections to declare party affiliation. Several similar proposals have been debated in recent legislative sessions, as supporters argued the current nonpartisan elections deny voters information.
“We as legislators get more phone calls from constituents about, ‘Tell me about the judges’ races. Who should I be voting for? Why should I be voting for them?’” Usher said. “Whether or not you believe in the parties that we have, it helps identify who the person's core beliefs are.”
Last month, Montana voters elected two new Supreme Court justices. Incoming chief justice Cory Swanson ran on a platform that echoed some of the concerns about judicial impartiality and transparency that the committee raised. MTN asked Usher whether Swanson’s win took away from the need for these proposed bills.
“We're not setting up laws based on the current person in office,” he replied. “It needs to be in perpetuity, and it needs to be what's good for the state of Montana.”
From the beginning, Democrats refused to participate in the select committee, saying they believed its only purpose was to attack the judicial branch. Before the committee met Wednesday, Democratic lawmakers joined former Gov. Marc Racicot and retired district judge James Reynolds in a news conference at the Capitol. They called proposals like partisan judicial elections a threat to the judiciary’s independence and vowed to fight back.
“Each of these bills are part of a system that injects politics into the courtroom, and what we have to do is we have to be on a united front, saying Montanans care about fair and impartial courts,” said Rep.-elect James Reavis, D-Billings.
Racicot, who served two terms as a Republican but has become increasingly vocal in criticizing current Republican leaders, called the committee’s proposals signs of “an extreme impulse” to exert control over the judiciary.
“This is really a poorly disguised dog whistle for ‘How do we get control of virtually everything, so we can do everything we want to do our way?’” he said. “What that reflects is a lack of confidence and trust in the people that you serve.”
Usher said he was disappointed Democrats didn't take part and felt that meant the committee didn't get the best input it could have. He said agreed with the goal of independent courts, but that he felt the courts have already been politicized and were “legislating from the bench” against what voters elected the Legislature and governor to do.
“There's a lot of people in our voter base that believe that our judiciary in this state has leaned one way or the other inappropriately and have weighed in on things that they should not weigh in on,” he said. “I think that some of these – most of these – will help balance that and help build some more trust from our voters.”
All the bills proposed by the committee still have to go through the full legislative process, so it won’t be until the 2025 session wraps up in the spring that we have a full picture of how many of these proposed reforms go forward.
