Governor’s Power Grab

Limiting Access to Justice and Consolidating Power

by Derf Johnson

Amajor theme of both the 2021 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 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

an administrative rule through a simple majority vote on a resolution and without the approval of the governor.

SB 82 (also Sen. Fitzpatrick) would upend the decades-old process of requiring consensus among legislators serving on legislative interim committees charged with reviewing administrative rules. It would provide the Speaker of the House and the President of the Senate (almost assuredly Republicans for some time to come) with a vote in the event of ties on the committees.

HB 447 (Rep. Bill Mercer, R-Billings) would provide the legislature with greater review authority over administrative rules, require State agencies to give advance notice to legislative review panels, and prevent State agencies from adopting rules in the period three months before a legislative session.

SB 323 (Sen. Chris Friedel, R-Billings) is a terrible bill that would prohibit State agencies from adopting any rule that may have a cost impact on businesses of more than $1 million. $1 million is an extremely low threshold. If this bill were to pass, only the legislature would have the authority to adopt such rules, which would put the executive branch at the mercy of the politically-driven legislative branch. This would increase political pressure and prevent agencies from implementing important programs, including those that are required under federal law, such as the Clean Air Act, the Clean Water Act, solid and hazardous waste laws and so many more. SB 323 applies to all government rules including those at the Departments of Public Health and Human Services, Revenue, Business & Labor, Commerce, Fish Wildlife & Parks, and Environmental Quality.

Unconstitutional Attacks on the U.S. Government and the Biden Presidency

SB 277 (Sen. Tom McGillvray, R-Billings) is a flagrant violation of the supremacy clause of the U.S. Constitution. The bill would give the Legislative Council the power to review Executive Orders issued by the president and requires that “the state, a political subdivision, or an organization receiving public funds from the state may not implement an executive order that the attorney general determines to be unconstitutional.” First, this is a solution in search of a problem. Second, and ironically, the entity charged with determining the constitutionality of laws under the U.S. Constitution is not the Montana Attorney General, but the U.S. Supreme Court.