MONTANA ENVIRONMENTAL INFORMATION CENTER
Limiting Access to Justice and Consolidating Power by Derf Johnson
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m ajor t heme of bot h t he 2 0 21 Montana Legislature and the Gianforte Administration can be found in a number of bills that would considerably and negatively change the way in which government does business. These changes consolidate power in the governor’s office and the legislature, while taking power away from the judicial system, State agencies, and average citizens. These bills are also a reaction to the recent election of President Joe Biden, by proposing a number of “states’ rights” concepts that are poorly planned, unworkable, and likely unconstitutional.
Reducing Access to Justice
The legislature and Gianforte Administration are intent on dramatically changing the Montana judicial system. SB 140 (Sen. Keith Regier, R-Kalispell) would eliminate a body known as the Judicial Nomination Commission, which currently proposes candidates for all vacancies for Montana district court judges and Supreme Court justices. In place of the Commission, applicants for open positions would have to apply to, and be selected by, the governor. This bill, which Lieutenant Governor Juras played a direct role in promoting, will undoubtedly lead to a more political and less effective judiciary, in which judges are selected based on their partisan positions rather than legal acumen. Another similar bill, HB 380 (Rep. Kerri Seekins-Crowe, R-Billings), would require that members of the Judicial Nomination Commission be confirmed by the Montana Senate, rather than by the Montana Supreme Court, as the current
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law dictates. HB 537 (Rep. Bill Mercer, R-Billings) would eliminate the ability of plaintiffs to file lawsuits in the 1st Judicial District of Montana (Lewis and Clark County). Depending on the type of lawsuit, plaintiffs typically have the choice of filing either in the district in which the dispute arose or in the 1st Judicial District. This bill would force cases into the districts where the dispute arose and the district in which the judge is elected, potentially compromising the impartiality of the judges.
Power Grab in the Legislative Branch
The Republican-dominated legislature feels that it had to kowtow to a Democratic governor for the past 16 years. With the election of Gov. Greg Gianforte, legislators are eager to “make hay while the sun shines” by making major changes to the legislative process and State agency rulemaking. Most notably, SB 225 and SB 227 (Sen. Steve Fitzpatrick, R-Great Falls) would give much greater latitude to and control by the legislature over how State agencies propose and adopt rules. In particular, SB 227 could be thought of as Montana’s “Congressional Review Act,” whereby the legislature is able to override
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