Separation of powers crisis, recreational marijuana bill on the move, anti-trans bills split votes
Montana 67th Legislative Session - Week 16
April 29, 2021
Republican Lawmakers Locked in Battle with State Supreme Court over “Judicial Transparency”
As the Montana Legislature nears the close of its biennial business, Republican lawmakers are mounting a case against the judicial branch and the state Supreme Court with accusations of judicial bias and improper record keeping, while Democrats call the inquiry a “witch hunt.”
Since the start of the 2021 Legislative Session, lawmakers have proposed numerous bills seeking changes to the judicial branch. Some bills, like several that would have made state judges partisan figures, died before reaching Gov. Greg Gianforte’s desk.
However, the governor recently signed one major bill eliminating the judicial nominating commission -- a panel in charge of recommending candidates to the governor to fill vacant judge seats -- giving the governor total authority to appoint judges. A swiftly-filed lawsuit against that bill sparked a chain of resolutions, subpoenas, and a back-and-forth between the Legislature and the judiciary branch that has seemingly resulted in a stalemate -- for now.
After Gianforte signed Senate Bill 140 into law on March 16, the Helena Independent Record reported that a coalition of former elected officials immediately filed a lawsuit with the Montana Supreme Court challenging the law, arguing it to be unconstitutional. That group included former Republican Secretary of State Bob Brown, a delegate to Montana’s 1972 constitutional convention, former Democratic lawmaker Dorothy Bradley and others.
The Supreme Court’s records on the lawsuit detail more than three dozen developments since the suit’s filing, with more likely to come. The plaintiffs’ initial filing states that eliminating the Judicial Nominating Commission is unconstitutional based on Article VII, Section 8 of the 1972 Montana Constitution, which says that the governor may appoint “a replacement from nominees selected in the manner provided by law” if a judge vacates their spot on the Montana Supreme Court or a district court. The lawsuit argues that the creation of the Judicial Nominating Commission in 1973 provided for the method of replacing vacant judicial seats, and that Gianforte has no constitutional standing for disbanding the commission.
Gianforte is the only defendant in the case, though both chambers of the Legislature passed resolutions seeking to join the case alongside the governor. The resolutions argue that SB 140 is constitutional because it revised the law determining how the governor can fill judicial vacancies. They also state that the lawsuit would “thwart the Montana Legislature's and the House of Representative's constitutional authority to exercise legislative power guaranteed by the Montana Constitution.”
On April 9, the Helena Independent Record reported that emails containing feedback from an internal poll of the state judiciary on judges’ thoughts on SB 140 were deleted by state Supreme Court Administrator Beth McLaughlin, prompting concern from Republicans over transparency and record keeping in the judicial branch. Republican lawmakers also expressed concern over the Montana Judges Association asking for members’ opinions on issues likely to come before the court, saying it “violates judicial ethics standards,” according to an email from Senate GOP Communications Director Kyle Schmauch.
Chief Justice Mike McGrath recused himself from the case, as he said he had urged Gianforte not to sign SB 140 before it became law. A judge brought in to replace McGrath has also recused himself after it was revealed he took a stance on the bill in the judicial poll, too.
All this culminated in a series of subpoenas issued by Republican lawmakers for McLaughlin and justices of the Montana Supreme Court to come before a special committee on “judicial transparency and accountability” on Monday, April 19, to face questions from legislators. McLaughlin did not appear at the hearing after the court quashed the subpoenas. The Helena Independent Record reported McLaughlin, in an email sent to Senate staff, said she “acquiesced to sloppiness” by deleting the emails about the judicial poll, and had no “nefarious intent.”
However, all seven Supreme Court justices appeared at an afternoon hearing via Zoom, and all proceeded to tell Sen. Greg Hertz, R-Polson, who is leading the Legislature’s inquiry into the judiciary, that they could not turn over emails and documents related to the judicial poll because the case was pending before the court. Each justice said commenting further would compromise their ability to stay impartial in the case against SB 140. The justices also said they never participated in any polls on legislation that could come before the court.
Earlier in the day, Hertz read aloud the questions he would have asked McLaughlin had she made an appearance. They focused on perceived issues of transparency in public records keeping in the courts and accusations of bias among judges for privately taking a stance on SB 140 before it came before them.
“If the judges have declared a new law unconstitutional before it’s even passed, are they impartial enough to listen to both sides when the law is challenged?” Hertz said. “I’m disappointed that [McLaughlin] has chosen not to appear today.”
Throughout the meeting, House Majority Leader Sue Vinton, R-Billings, made repeated requests that it be noted on the record that McLaughlin failed to appear. She echoed her party’s previous statements about needing to clarify the judiciary’s impartiality and transparency.
“We’re not talking about feelings in this committee hearing, we’re talking about facts,” Vinton said. “We’re asking for information, we haven’t had that info provided to us, and I, for one, will continue to seek the truth, to seek facts, and to seek transparency from that very coequal branch of government.”
But Democrats have repeatedly blasted the GOP’s actions against the judicial branch as a “witch hunt” and an “inquisition,” calling the creation of the Special Joint Select Committee on Judicial Transparency and Accountability an “embarrassment for our state” in a statement released on April 14.
Democrats on the committee are Sen. Diane Sands, D-Missoula, and House Minority Leader Kim Abbott, D-Helena. Abbott said McLaughlin didn’t appear because McLaughlin was following an order from the Supreme Court, which quashed the subpoena. Abbott added that she felt their questions had been properly answered by Chief Justice Mike McGrath, and that evidence indicated the other justices had not taken a stance on SB 140.
“This is an attack on an independent, coequal, nonpartisan branch of government that is a culmination of a session-long barrage of legislation to make the court more partisan, less independent -- and it feels like a power grab from two branches of government that are partisan,” Abbott said. “I’m incredibly disappointed in it. We need to protect the checks and balances that Montanans depend on and that our government depends on.”
After questioning of the justices concluded, Hertz said he felt the day had been a success.
“Committee Republicans see today’s events as a major step forward in our investigation,” Hertz said. “We look forward to continuing a dialogue with the judicial branch as we continue investigating the widely-reported issues with public records retention, impartiality, and potential judicial bias.”
During a press call later in the week, Senate Republicans’ Communications Director Kyle Schmauch said a potential end goal of the committee would be to recommend legislation, if needed, to put “reforms” on the judiciary -- though, time to do so is running out as the Legislature nears the end of its 90-day session.
One Anti-Trans Youth Bill Falls, Another Passes in Montana Legislature
One bill that would limit the rights of transgender youth is dead in the Montana Legislature and another is headed to Gov. Greg Gianforte’s desk amid growing warnings from healthcare providers, Democrats and athletic organizations of the economic and legal consequences of passing “descriminatory” bills.
House Bill 112 and House Bill 427 are similar to a dozens of bills in states across the nation seeking restrictions on transgender youth rights. With one measure amended to prevent losing federal funding for percieved “discrimination” and the other killed by a bipartisan vote in the Senate, the bills’ path through the Legislature has been fraught with concern Montana could lose federal education dollars or National Collegiate Athletic Association-sanctioned events should the bills become law.
Rep. John Fuller, R-Whitefish, is sponsoring both bills. HB 112 would restrict transgender women and girls from participating in womens’ sports from elementary school through college, while HB 427 would have restricted doctors from performing gender-affirming surgery on transgender youth -- though the practice already does not happen in the state, doctors have said. HB 427 was a re-do of a bill Fuller sponsored earlier in the session; that one died in a similar bipartisan fashion in the House.
HB 112 cleared the House of Representatives on a 61-38 vote in January, but stalled in the Senate for two months as lawmakers debated how to proceed with the bill after President Joe Biden issued an executive order prohibiting discrimination based on gender at the start of his term. Under the executive order, if HB 112 becomes law in Montana and the federal government determines it to be discriminatory, the state’s universities could stand to lose millions in federal education funding.
The National Collegiate Athletic Association also released a statement on April 12 backing transgeder athletes. The organization said it would not host championship events in states that do not provide “an environment that is safe, healthy and free of discrimination.” If HB 112 becomes law, any future Montana State University Bobcat or University of Montana Grizzly football playoff games could not be held in-state under the college athletic group’s policy.
Fuller and the bill’s supporters have frequently said the bill is not discriminatory, as athletes would still be allowed to participate in sports under their sex assigned at birth, but the Senate amended the bill nonetheless with a clause to void the measure if the federal government deems it discriminatory. However, the House voted to reject those amendments, leading to a conference committee comprised of members of both chambers that briefly debated the bill Tuesday.
There, Fuller and Republicans voted to amend the bill to allow for an appeal process if the Biden administration pulls education funding as a result of the bill’s passage, only rendering the bill void if that appeal fails. The committee voted to advance the bill down party lines for a final vote in the House and Senate, with Republicans voting in favor and Democrats against.
During the hearing, Democrats on the committee said the amendment wouldn’t prevent the state from being sued over the bill, racking up “thousands or millions of dollars” in legal fees, according to Sen. Bryce Bennett, D-Missoula. Bennett also slammed the bill as “awful,” and said it would result in harm to transgender people across the state.
“This is, on its face, a discriminatory and unnecessary bill, and I think we all know there are a lot of things we needed to tackle this session, but the fact that we are spending a single moment on deciding who’s allowed to play sports as a kid is shocking to me,” Bennett said. “This Legislature has a heck of a lot better things to do than to bring awful bills like this forward.”
But Fuller objected to Bennett’s comments, saying the bill would not cost the state financially, nor result in the invasion of children’s privacy.
“You have a human right not to be discriminated against, but you do not have a sports right. We have all kinds of classifications regarding sports,” Fuller said.“We have height, weight, age, size and sex, and all this bill does is reinforce that and protect Title IX, which has been in effect for 49 years.”
The House and Senate both approved HB 112, mostly along party lines, and the bill is now awaiting action by the governor.
HB 427 -- the bill restricting gender-affirming surgery for minors -- was set for debate in the Senate on Tuesday, April 20, but at the start of the floor session, leadership opted to delay the discussion. However, as the body could still take action on the bill, Sen. Bennett rose at the end of the meeting and moved to “indefinitely postpone” it -- a motion that, if successful, would effectively kill the measure. HB 427 then went down in a 27-22 vote, with eight Republicans joining all Democrats to postpone the bill.
After the vote, Bennett celebrated on Twitter, writing, “Discrimination isn’t a Montana value. Period. We came together today to protect trans kids and make sure their parents control their healthcare, not the government.”
At the end of the meeting, Sen. Brad Molnar, R-Laurel, who voted against postponing HB 427, praised Bennett for what he called “the smoothest parliamentary move I’ve seen all day.” Molnar previously attempted to stick an amendment on the state budget to eliminate Medicaid expansion, but did not succeed.
Plan to Regulate and Tax Recreational Marijuana Approved by Senate
The Montana Senate passed a gargantuan bill Friday with a plan to regulate and tax recreational marijuana following days of work by a special committee that brought the bill closer to the original plan voters passed when they legalized the drug in the November 2020 election.
House Bill 701 cleared the Senate on a 34-16 vote, meaning it now returns to the House of Representatives and could potentially be just two votes away from heading to Gov. Greg Gianforte’s desk. The bill departs from Initiative 190 voters passed last year in several major ways, including where tax revenue will be spent, how counties can choose to participate in the program and how many plants an individual can grow for personal use.
Rep. Mike Hopkins, R-Missoula, is sponsoring the bill, which the House pushed out alongside two other recreational marijuana implementation bills ahead of a key deadline earlier in April. GOP leadership said they planned to pull the best parts of each measure into a single, comprehensive bill, and HB 701 emerged as the winner of that process.
Under the revised bill, recreational marijuana would be taxed at 20%, while medical marijuana would stay at 4%. The revenue generated from that tax would fund a $6 million addiction recovery program requested by Gianforte, and, in an amendment added in committee, would go toward several conservation programs: 20% to wildlife habitat conservation, 4% to state parks, 4% to trails and recreational facilities and 4% to the nongame wildlife account. HB 701’s original form had almost no conservation funding at all, and Democrats touted the funding additions as a win for their caucus.
The Select Committee on Marijuana Law also included $200,000 for a veterans’ special revenue account, $150,000 for crisis intervention training and $300,000 for police departments to retrain drug dogs who were trained to detect marijuana.
Before the bill hit the Senate floor, Sen. Jason Ellsworth, R-Hamilton and chair of the marijuana committee, praised the work done by committee members, but acknowledged whatever implementation bill the Legislature passed this session would likely not remain untouched by future lawmakers.
“We’re going to be revisiting this legislation,” Ellsworth said. “I think it took six sessions to get medical [marijuana] right, and it’s going to take additional sessions to get this 100%.”
Sen. Jason Small, R-Busby, carried the bill on the Senate floor and told fellow lawmakers that the bill was a “comprehensive, fully operational outline” for recreational marijuana implementation and warned them against not passing the measure.
“If we don’t pass this bill, we basically revert back to language that is in I-190, and frankly, the marijuana industry in the state of Montana is going to look like a pot of boiled spaghetti noodles at that point,” Small said.
Other members of the marijuana law committee also praised the bill and urged Senators to vote in favor. Sen. Shane Morigeau, D-Missoula, said the the committee worked to create a product that represented a compromise between the needs of all Montanans, regardless of those who voted for or against legalization of recreational marijuana.
“This is a good bill. We crafted something that represents all of Montana. It was something I was proud to vote for,” Morigeau said.
The committee also changed how HB 701 handles county choice in whether or not to allow recreational marijuana. Originally, the bill would have required all counties to hold another vote in order to opt-in to the recreational marketplace -- despite half of Montana counties already voting in favor of legalization in the 2020 election. Under a new amendment on the bill, counties that voted in favor of legalization can hold a vote to opt-out of the market, while those that voted against legalization can vote to opt-in if they so choose. In counties that choose to opt-out of recreational marijuana, existing medical dispensaries will be “grandfathered” in.
The Legislature now looks to pass HB 701 before lawmakers adjourn, likely the final week of April.
Look What’s Law: Gov. Gianforte Signs Bills Boosting Trades Education, Tightening Voter Access, Expanding MMIP Resources and Promoting Telehealth
As the 2021 Legislative Session races to a close, Republican Gov. Greg Gianforte is on a bill-signing blitz, approving measures providing tax credits for trades education, ending same-day voter registration, assigning more resources to aid solutions to the Missing and Murdered Indigenous Persons crisis and making permanent some changes the pandemic made to virtual doctors’ visits.
As of Friday, April 23, Gianforte had signed 266 bills into law. Earlier that week, the governor acted on a long-percolating measure in his “Montana Comeback Plan” by signing House Bill 252, sponsored by Rep. Llew Jones, R-Conrad. The new law offers tax credits against a business’ income tax liabilities to cover the cost of up to 50% of educational expenses for employees in the trades like carpenters, truckers and electricians. Covered costs cannot exceed $2,000 per employee annually, with a maximum of 12 workers per employer.
The governor held a signing ceremony for the bill at the construction site for a Missoula Scheels location.
“This bill strengthens our workforce, ensuring Montana workers are well-equipped to succeed, thrive and achieve the American dream,” Gianforte said in his remarks.
The bill passed the House on a 72-28 vote with mixed support and opposition from both parties in February, and the Senate passed the bill on a similar 32-18 vote in March. Republican and Democrat opponents of the bill said it was unnecessary to incentivize employers to do something they were already doing.
On Monday, April 19, Gianforte also signed two major elections bills that promise sweeping changes to the way Montanans vote. House Bill 176, sponsored by Rep. Sharon Greef, R-Florence, has ended same-day voter registration in the state, which has been in place since 2005. Now, registration closes at noon the day before an election. Senate Bill 169, sponsored by Sen. Mike Cuffe, R-Eureka, has implemented broad voter ID reform, requiring voters who do not show up to the polls with a “primary” form of identification like a state driver’s license or tribal photo ID show two other forms of identification, like a student ID and a bank statement or utility bill. In the past, election administrators accepted student identification cards on their own in order to cast a ballot in Montana.
Republican Secretary of State Christi Jacobsen lobbied extensively for the passage of both bills, touting them as “election integrity” measures that would increase voter confidence in Montana’s elections. The new restrictions come in the aftermath of the 2020 federal election, which was met with accusations of voter fraud, despite there being no credible evidence for such in Montana or nationwide.
In a statement on the bills, Gianforte dismissed some of those accusations of election insecurity.
“Montana has a long history of secure, transparent elections, setting a standard for the nation,” Gianforte said. “These new laws will help ensure the continued integrity of Montana’s elections for years to come.”
Both bills passed the Legislature largely down party lines. Republicans have long prioritized cracking down on voter ID, made easier this session by the presence of a Republican in the governor’s office for the first time in 16 years. Democrats have slammed the new laws as attempts to limit voter access, while Republican lawmaker and former longtime clerk and recorder for Rosebud County Rep. Geraldine Custer, R-Forsyth, has repeatedly spoken against the measures, calling them “stupidity” on behalf of the Secretary of State and saying she believes they will end up in court and cost the state thousands in legal fees.
The Montana Democratic Party has already filed a lawsuit in district court against Secretary Jacobsen over both bills, claiming they target the state’s youngest voters. The lawsuit also states “there is no legitimate justification for these restrictions, much less any sufficiently weighty state interest to justify their burdens on the fundamental right to vote.”
Also last week, Gianforte signed a trio of bills seeking to provide support to fighting the Missing and Murdered Indigenous Persons crisis in the state. House Bill 98 reauthorizes the Montana Missing Indigenous Persons Task Force, a panel created in 2019 to help address the crisis, and also extends the “Looping In Native Communities” grant program. Those funds were awarded to Blackfeet Community College to create a state database of missing persons to help with reporting and awareness, and the continuation of the funding will allow the school to develop an app that can be used to access the data and report new cases.
House Bill 35 creates an MMIP review commission in the Department of Justice to help review cases of missing and murdered Indigenous people and provide information and education to the public on the scope of the crisis and what can be done to prevent future cases.
Rep. Sharon Stewart Peregoy, D-Crow Agency, sponsored both bills.
“The intent of this suite of bills is to ensure that gaps in the justice and law enforcement system are filled so that our brothers, sisters, aunts, and uncles are found and brought home,” Stewart Peregoy said in a statement.
Early in the session, some lawmakers in the American Indian Caucus expressed fears that their bills wouldn’t gain traction in the conservative-dominated Capitol, but of the four bills they introduced on the topic, only House Bill 36 has died in the process. Senate Bill 4, also reauthorizing the MMIP Task Force, served as a companion bill to House Bill 98 in the event that measure failed, and was signed by the governor Thursday.
Gianforte also signed House Bill 43 on Monday. That bill, sponsored by Rep. Rhonda Knudsen, R-Culbertson, requires coverage for telehealth services on public employee and student insurance plans and removes some restrictions on the times and places people can access telehealth services. Former Democratic Gov. Steve Bullock initially lifted the restrictions last year as the COVID-19 pandemic reached Montana.
Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at firstname.lastname@example.org.