HELENA – As a wave of Republican legislation was enacted in this year’s legislative session, the first since 2005 with unified GOP control over the Legislative Assembly and the governor’s office, opponents have vowed to bring their fight against bills they considered unconstitutional in court.
In the three months since the end of the 2021 session on April 29, these opponents have kept that promise. As of August 9, 12 laws enacted by the 2021 legislature and Governor Greg Gianforte have been challenged in 14 separate lawsuits identified by the MTFP’s Laws on Trial project, which tracks litigation from the legislative session and makes key cases available. judicial. to the public online.
Most bill challenge cases are still in the early stages of the litigation process, with lawyers exchanging briefs on the original motions that debate, for example, whether the challenged laws should be barred from entering. in force during the course of the dispute.
Despite everything, these 14 cases have already produced a mountain of paperwork: 117 major files totaling more than 2,000 pages, according to the MTFP tally.
(These figures exclude cases involving a legislative effort to subpoena state Supreme Court emails and an unsuccessful lawsuit by a media group, including the MTFP, over a select committee meeting. They include two cases dismissed by the Montana Supreme Court and reclassified to lower courts.)
One of the contested laws, Senate Bill 140, which gives the governor direct appointing power over vacant judicial positions in the state’s judicial system, has already been upheld by the Montana Supreme Court in B Brown et al. v. G. Gianforte. Challenges against other laws are pending in state and federal courts in Helena, Butte, Billings and Bozeman.
CHALLENGES TO A CARRY CAMPUS ACT AND NEW HIGHER EDUCATION REGULATIONS
Two lawsuits are challenging House Bill 102, a gun rights bill that was supposed to force the Montana Board of Regents to allow possession of firearms on college campuses from June 1. the bill goes beyond their constitutional authority to manage the colleges independently of the legislature. Lewis and Clark County District Court Judge Michael McMahon issued a series of orders in this case, Board of Regents v. Montana, which prevents the law from coming into force while it is in dispute.
The Campus Portage Act was also one of four higher education-related measures challenged in a separate lawsuit, S. Barrett et al. v. Montana, filed in early June in Gallatin County District Court by a group of plaintiffs including college professors and former higher education officials.
The Barrett lawsuit also challenges aspects of three other bills: House Bill 349, which seeks to protect students and student groups from discrimination on the basis of political or religious beliefs; House Bill 112, which bans participation in women’s sports for transgender athletes; and Senate Bill 319, which limits voter registration efforts in campus dormitories and cuts funding for MontPIRG, a progressive political group funded by University of Montana student fees. The plaintiffs in the second trial argue that the four laws infringe the authority of the regents.
Both cases were originally filed in the Montana Supreme Court, which dismissed them with a referral to lower state courts.
A CHALLENGE AGAINST ELECTORAL ADMINISTRATION LAWS
Two lawsuits challenge newly enacted election administration laws. One, tabled in April by the Montana Democratic Party and Mitch Bohn, a voter who uses a wheelchair, challenges three laws: House Bill 530, which limits the collection of ballots by paid workers; House Bill 176, which ends voter registration on election day, and Senate Bill 169, which adds more stringent photo ID requirements for voter registration. voters.
The second lawsuit, filed in May by two Native American defense groups and four tribal governments with legal representation by the American Civil Liberties Union, challenges HB 176 and SB 169.
Both lawsuits, Montana Democratic Party v. C. Jacobsen and Western Native Voice et al. v. C. Jacobsen, were filed in Yellowstone County District Court. The complainants filed motions that the two cases be combined.
A CHALLENGE AGAINST MAKING IT MORE DIFFICULT FOR TRANSGENDER MONTANES TO CHANGE THEIR BIRTH ASSETS
Two transgender plaintiffs, represented by the ACLU, challenge Senate Bill 280, which prevents transgender people in Montanais from changing their birth certificates unless they have had sex confirmation surgery and obtained a court order.
This lawsuit, A. Marquez v. Gianforte et al., Was filed in Yellowstone County District Court in July.
A CHALLENGE AGAINST THE DEMAND FOR ELECTORS TO ELECT THE JUDGES OF THE SUPREME COURT OF MONTANA BY DISTRICT
A lawsuit filed by a group of Montana citizens challenges House Bill 325, which proposes a ballot measure calling on voters to amend the Montana Constitution so that state Supreme Court justices are elected by district instead of a statewide vote.
This costume, McDonald et al. v. C. Jacobsen, was filed in May in Butte-Silver-Bow District Court. A dispute over a request by state attorneys to have its designated judge, Kurt Kreuger, be replaced by another judge has been appealed to the Montana Supreme Court in Jacobsen v. Second Judicial District.
A CHALLENGE TO A LAST MINUTE CAMPAIGN FINANCING MEASURE
Another lawsuit also challenges SB 319, which was touted as a campaign finance reform measure and passed in the dying days of the legislative session after extensive rewrites at the end of the session. In addition to its regulations on campus political activity, the final form of SB 319 included a provision requiring elected state judges to recuse themselves in court cases involving attorneys, plaintiffs, and defendants who made a claim. donation for or against their election campaigns.
Plaintiffs, including Forward Montana, Lewis and Clark County District Attorney Leo Gallagher, and the Montana Association of Criminal Defense Lawyers filed a lawsuit in June. They argue, in part, that the revised bill violates constitutional requirements that Montana bills deal with a single topic and must not be changed in the process to the point of altering their original purpose.
A judge issued a preliminary injunction on July 1 delaying the effective date of the law while the case, Forward Montana v. Montana, is in dispute.
A CHALLENGE TO THE LAWS TO KEEP COLSTRIP OPEN
A group of out-of-state utility companies with stakes in the Colstrip coal-fired power plant have challenged two new Montana laws, Bill 265 and Senate Bill 266, which seek to make it more difficult to close the plant. SB 265 changes the rules on how disputes between factory owners are arbitrated. SB 266 would classify the failure or refusal of a Colstrip owner to finance its share of the plant’s operating costs as an “unfair or deceptive act” which could subject the company to a $ 100,000 fine by day.
The plaintiffs argue that these laws represent an unconstitutional effort by the state government of Montana to interfere in interstate commerce. The named defendants are NorthWestern Energy, Montana’s largest utility company, and Talen Montana, the company that operates Colstrip for the ownership group. The Portland General Electric Company et al. v. NorthWestern Energy et al., Is filed in Federal Court in Billings.
Oral arguments on a preliminary injunction that would prevent SB 266 from coming into effect while the proceeds of litigation took place on August 6. A decision was pending on August 9.
AND A SECOND EFFORT TO CHALLENGE THE JUDICIAL APPOINTMENTS ACT
Two former state lawmakers, Tom Winter and Barbara Bessette, filed a separate lawsuit in Lewis and Clark County District Court challenging the SB 140, the judicial appointments bill, in June. They then tried unsuccessfully to appeal to the Montana Supreme Court in Winter et al. v. 1st judicial district after a district court judge denied their initial efforts to delay the date of entry into force of the law.
A motion from state attorneys to dismiss the case in district court, Winter et al. vs. Montana, is pending.
When state agencies are named as defendants in cases, they are typically represented by the Montana Department of Justice, headed by Attorney General Austin Knudsen. Department spokesman Kyler Nerison said on Aug. 4 that the agency had so far not engaged an outside lawyer in the cases. He declined to provide an estimate of the time staff spent on the litigation.
“Although the DOJ acts as a state law firm, especially with respect to constitutional challenges to state laws, it is not a private sector law firm that follows the time per case and bill clients, ”Nerison said.
He said the office had a group of attorneys working on cases challenging the bill, “as well as federal litigation and other matters.”
An MTFP tally identified nine separate DOJ attorneys appointed to represent the state in court challenges cases, excluding Knudsen. Data available on the State Employee Salary Dashboard shows that these lawyers earn between $ 88,600 and $ 117,700 per year.
More information on these cases and links to downloadable versions of the full dossiers are available at apps.montanafreepress.org/montana-legislature-lawsuit-tracker.
Amanda Eggert, Alex Sakariassen and Mara Silvers contributed reporting.