Get an insider’s look into what’s happening in and around the halls of power with expert reporting, analysis and insight from the editors and reporters of Montana Free Press. Sign up to get the free Capitolized newsletter delivered to your inbox every Thursday.

---

April 4, 2024

Montana Senate Republican leadership this week announced the formation of a select committee to address “judicial overreach” following a series of adverse court rulings regarding laws passed by the Republican legislative majority. 

A press release from Senate President Jason Ellsworth, R-Hamilton, said the committee’s objectives include “creating legislation for the 2025 Legislature to rein in Montana courts’ abuse of power, restoring coequal power among Montana’s three branches of government, establishing more oversight of the judiciary, strengthening legislative rules and procedures, and improving court processes on important constitutional cases.”

Ellsworth pointed to a number of recent rulings that he said demonstrated “systemic overreach” and a violation of the balance of powers, both at the district court and Supreme Court levels. 

“Simply put, Montana’s courts are out of control,” he said. 

The establishment of the committee — the second interim committee that Republicans have set up to probe alleged impropriety or overreach by the judiciary in recent years — follows a landmark Montana Supreme Court ruling that four Republican-backed voting laws violate the state Constitution. The opinion quashed an effort by Republican Secretary of State Christi Jacobsen to reinstate those laws, which included stricter voter identification requirements and the elimination of Election Day voter registration, after a district court struck them down in 2022. 

Notably, the ruling displayed dissension among the justices about how far the Legislature’s authority extends when setting laws that govern state elections. Justices Dirk Sandefur and Jim Rice argued that lawmakers acted well within their constitutional bounds in enacting three of the four contested laws, and accused their fellow justices of exercising “unrestrained judicial power.” But the majority of the bench took a firm line that the Montana Constitution affords greater protections for voters than the U.S. Constitution, a bar they said the Legislature’s changes failed to clear.  

Republican legislative leaders have recently lambasted a number of other rulings, including one that allowed the legislative override of a contentious gubernatorial veto, which they said interfered with internal legislative rules, and an order holding that plaintiffs challenging a 2021 election law were entitled to attorney fees. 

A draft organizing document for the committee shared by Senate Republican leadership lists several policy changes the committee might consider. They include legal revisions to judicial recusals and elections, legislative rules, judicial discipline, ballot initiative review, the Montana Bar Association and more. One bullet point, situated under a section concerning the attorney fee ruling, reads: “Cut judicial branch budget?”

The committee has not yet announced its first meeting. On Tuesday, Ellsworth appointed to the committee Sens. Barry Usher, Steve Fitzpatrick, Tom McGillvray, Steve Hinebauch, Wendy McKamey, Chris Friedel, Mark Noland and Daniel Emrich — all Republicans. Ellsworth will chair the committee, while Usher, who formerly chaired the House Judiciary Committee, will serve as vice chair. Fitzpatrick, a Republican from Great Falls who serves as Senate majority leader, is the only attorney on the committee. 

The press release said Ellsworth was consulting with Senate Minority Leader Pat Flowers, D-Bozeman, about Democrats who might sit on the committee. But by Tuesday afternoon, legislative Democrats said they would not participate in the committee, which, Flowers said, had “reached its conclusions before it has even met.” 

“Instead of attacking another branch of government, we should be focusing on the real problems facing Montana families — skyrocketing property taxes, a housing crisis, and the biggest loss of health care our state has ever seen,” Flowers added. “As things stand now, we cannot participate in this process.”

House Minority Leader Kim Abbott, D-Helena, was even more pointed. In a statement Tuesday, Abbott said the “move by Republican Senate ‘leadership’ is just a temper tantrum from lawmakers who can’t face the fact that the courts are not the problem — it’s them and their unconstitutional legislation.” 

Friction between Republican legislators and the courts is nothing new. But the relationship between the two branches of government became a fixture in Montana politics following the 2021 legislative session, the first in 16 years where Republicans controlled both the Legislature and the governor’s office. In that session, Republicans passed and Gov. Greg Gianforte signed a bill giving the governor unilateral authority to fill vacant judicial positions. Litigation over that bill and general frustration among Republicans who routinely saw their legislation fail to pass constitutional muster in court fueled a protracted separation of powers conflict, during which some Republican officials openly flouted court orders. The conflict also saw the Legislature subpoena troves of judicial records, kicking off high-stakes litigation over legislative subpoena power. 

The 2021 dustup also led to the formation of a GOP-led select committee to investigate judicial lobbying, ethics and record retention that met just three times in 18 months. Republicans and Democrats on the committee produced separate reports, with Republicans highlighting “several concerns about the operations, procedures, and policies of the judicial branch” and recommending a suite of bills to reshape the judiciary and its internal practices. Democrats, meanwhile, accused Republicans in the Legislature and executive branch of leading a coordinated effort to discredit the judiciary. 

In the 2023 Legislature, Republicans increased the standards for issuing preliminary injunctions, changed the balance of power on the body in charge of judicial discipline and broadened legislative subpoena powers. But even with a supermajority, the caucus failed to cobble together enough votes to pass more dramatic changes, such as allowing for partisan judicial elections or reducing the number of justices on the Supreme Court. 

— Arren Kimbel-Sannit and Alex Sakariassen

---

Endorsement

Montana congressional candidate Elsie Arntzen on Wednesday announced her endorsement by Virginia Congressman and U.S. House Freedom Caucus Chair Bob Good, a nod of support from a prominent hardliner that could help Arntzen distinguish herself in a crowded Republican primary field. 

Arntzen, Montana’s current and termed-out superintendent of public instruction, is one of nine Republicans vying to replace retiring Matt Rosendale in Montana’s eastern U.S. House district. Rosendale was an active member of the Freedom Caucus, a group of ultra-conservatives that gained recent prominence for helping oust Republican House Speaker Kevin McCarthy last fall. 

“It is my privilege to endorse Elsie Arntzen for Congress in Montana’s 2nd District!” Good wrote in his post on the social media platform X. “She has proven to be the kind of courageous conservative warrior we need to change Washington. Please help send Elsie Arntzen to Congress!”

Other prominent GOP candidates for the district include former Congressman Denny Rehberg, state Auditor Troy Downing and state Sen. Ken Bogner, R-Miles City. On Tuesday, Bogner announced his own endorsement by Tom Homan, former acting director of U.S. Immigration and Customs Enforcement under former President Donald Trump. 

— Arren Kimbel-Sannit

---

About That Footnote

The legal back-and-forth between the sponsors of a constitutional abortion rights amendment, Attorney General Austin Knudsen and the Montana Supreme Court seemed to reach a decisive point on Monday when the state’s high court finalized the ballot statement language describing the hot-button proposal. But the effect of the court’s decision — and, really, any semblance of normalcy for the ballot initiative process — was derailed this week, in part by a single footnote embedded about halfway through the 15-page decision.

As Montana Free Press previously reported, the court’s footnote explained that the particular events of the case do not trigger a statutorily outlined review by a legislative interim committee for initiatives deemed “legally sufficient” by the state attorney general. (The logic goes like this: The attorney general found the abortion proposal “legally insufficient,” though that determination was later overruled by the Supreme Court.) The question of whether or when the Legislature can consider a ballot proposal, however, was not squarely before the court, perhaps explaining why that wrinkle wasn’t ironed out in an explicit “order” on the last page of the ruling. Instead, the court explained its reasoning in a footnote and certified the ballot statement language to Secretary of State Christi Jacobsen without further mention of any legislative review.

Capitolized thinks “snafu” is an apt word to describe what happened next. 

In emails to Montana Free Press on Monday, the secretary of state’s office called the footnote “dicta,” a non-binding legal observation, and indicated that it might, possibly, still forward the proposal to the Legislature as outlined in state law. But Secretary of State Christi Jacobsen didn’t execute that decision anytime on Monday and, to the frustration of initiative sponsors, the office also did not provide the group with a petition featuring the finalized ballot statement — a prerequisite for ballot-qualifying signature gathering to begin. On Tuesday, Montana Senate President Jason Ellsworth, R-Hamilton, decried the court’s reasoning about legislative review (accusing the justices in a media release of “effing around in a footnote”) and issued a subpoena to the secretary of state to send over the initiative anyway. Further complicating matters on Tuesday, Jacobsen’s office sent an appeal to the Legislature asking for help deciphering the court’s decision and the relevant law:

“It would be inappropriate for the Secretary of State, as a ministerial Executive Branch Officer in this process, to make the determination related to a legislative component of the process and the legal effect of the order,” the letter read. “If you deem the footnote controls, it is unclear as to what our office should or should not include on the petition pertaining to the review by the legislative committee.”

A spokesperson for Republican leadership said Ellsworth did not issue a formal response to the secretary of state’s letter, but reiterated the Senate president’s hope of reviewing the initiative through a subpoena. 

Separately, initiative sponsor Montanans Securing Reproductive Rights took action Wednesday to get clarity on the court’s order. In a “motion for supplemental relief,” the campaign asked the court to confirm that legislative review does not apply in this case and to direct the secretary of state to make a finalized petition available to the group by the end of the business day. The Supreme Court responded by telling MSRR it had not filed the correct type of appeal, to which the group responded by refiling a “writ of mandamus” Thursday morning. 

Hours later, the Supreme Court ruled in MSRR’s favor with a brief order signed by Chief Justice Mike McGrath and justices Ingrid Gustafson, Jim Shea, Laurie McKinnon and Dirk Sandefur. It explained that because the court is “bound by the plain meaning of the words used in the statute,” the legislative review is not triggered and Jacobsen is to “provide MSRR with a finalized sample petition for CI-14 no later than 1:00 p.m. on Friday, April 5, 2024” containing the court’s ballot statement, the proper formatting, and no reference to the outcome of a legislative review.

In a not-subtle final point, the justices instructed Jacobsen to notify the court when her office delivers the petition to MSRR or file a brief on Monday explaining “why Jacobsen should not be held in contempt of Court.”

And still, the legal rally was not over. Jacobsen, through a brief filed by the attorney general, maintained that the responsive parties were not properly served notice about MSRR’s Thursday filing, thus arguably invalidating the court’s order. In a phone call just after 3 p.m., a spokesperson for the initiative campaign confirmed that a member of its legal team was en route to re-deliver the proper documents to all parties. In a later statement, the group indicated confidence in the court’s first ruling and anticipated next steps.

“Montanans Securing Reproductive Rights is pleased that the Court has directed the Secretary of State to forward a finalized petition. We urge the Secretary of State to comply with the Court’s clear order and forward a final petition by 1 p.m. tomorrow,” the statement said. “This process cannot be delayed by the personal politics of government officials any longer. MSRR looks forward to moving onto the next phase of signature gathering.”

No other further installments of the saga were reportable by the time of Capitolized’s publication Thursday evening, though, of course, there’s no telling what future hours might bring. 

— Mara Silvers

---

On Background

How GOP attempts to reshape the judiciary fared this session: A callback to some prior MTFP coverage about tensions between the branches of government.

Montana Supreme Court declares 2021 voting laws unconstitutional: An in-depth explanation of the Supreme Court’s decision last week regarding long-debated voting legislation.

Montana Supreme Court rewrites abortion ballot language; signature gathering moves closer: Our Monday breakdown of the court’s ruling on the abortion ballot statement, which now feels many years old.

The post A legislative strategy to establish ‘more oversight of the judiciary’ appeared first on Montana Free Press.