Guest Opinion: Let’s Set The Record Straight

Guest Opinion: Let’s Set The Record Straight

By: James C. Nelson, Montana Supreme Court Justice (Ret).

On February 8th Senator (and lawyer) Steve Fitzpatrick (R-SD 10) published a guest view in the Independent Record chastising the Montana Supreme Court for a “stunning” decision. The Senator’s litany of complaints included that the Court violated the separation of powers, “eviscerated the Legislature’s power to make rules and manage its own affairs” . . . “granted itself the power to punish the Legislature,” invaded the province of the legislature to interpret its own rules, accused the Legislature of bad faith, and [took]the legislature to task for violating its norms, all the while ignoring its own norms and precedents.

The Senator identified neither the case nor what the Court’s decision was actually about. The name of the case is Forward Montana v. State by and through Gianforte, 2024 MT 19. The Court’s decision is well-written and easy to follow; read it at: FORWARD MONTANA v. STATE BY AND THROUGH GIANFORTE (2024) | FindLaw Forward Montana and other plaintiffs are referred to as Appellants.

The case.

During the 2021 session, the Legislature considered SB 319, which dealt with the regulation of joint political fundraising committees. Like most, the bill went back and forth between the Senate and the House and was amended. A free conference committee, appointed to consider amendments, apparently did not. However, two days before the Legislature adjourned, this committee added four new sections to the bill during a 17-minute meeting, closed to the public. Several of these amendments were almost verbatim from a bill that failed to pass during the session. The bill, so amended, passed both houses in the last 24 hours of the session.

Appellants challenged two of the amendments for violating Montana’s Constitution, Article V, sections 11(1) and (3). In pertinent part, these require: (1) [a] law shall be passed by bill which shall not be so altered or amended on its passage through the legislature as to change its original purpose, and (3) [e]ach bill, except 2 general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title.

After various proceedings and hearings, the District Court concluded that the amended bill violated both of the foregoing constitutional mandates. The State, represented by the Attorney General, chose not to appeal—resulting in the trial court’s decision becoming the law of that case.

Appellants moved for attorney fees under the “private attorney general doctrine,” and § 25-10-711, MCA–exceptions to the “American Rule” under which litigants generally bear their own fees. The District Court denied the fee request. Appellants appealed that denial. The Supreme Court reversed and applied the doctrine.

The decision.

In reversing the District Court’s decision, the Supreme Court concluded, among other things, that: Appellants were entitled to attorney fees because “[they] alone [vindicated] important constitutional interests. The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interests in defense of these actions;” because “[t]he Legislature must follow certain rules in enacting legislation to ensure transparency and public participation;” and “because of the process through which the unconstitutional sections of this Bill came to be: an obviously unlawful Bill adopted through willful disregard of constitutional obligations and legislative rules and norms.”

Thus, this case had nothing to do with the parade of horribles described by Senator Fitzpatrick. Rather, this case involved the issue of attorney fees awarded to a litigant pursuant to the private attorney general doctrine.

More to the point, this case involved a challenge to unconstitutional legislation rammed through at the end of the session and the Legislature sucker- punching the public’s Constitutional right to know.

Ironically, Senator Fitzpatrick demonized the Court for doing its job—i.e. holding the Legislature and Executive accountable for not doing theirs.