Lawmakers Spar Over the Role of the Judiciary as the 69th Montana Legislative Session Begins

With the 2025 Montana Legislative session underway, lawmakers this session are not only creating new law, but also examining how the law is interpreted and enforced by the judicial branch.

Twenty-seven bills aimed at judicial reform are on the table in both the House and Senate Judiciary Committees as well as the House State Administration Committee – bills that lawmakers say could alter the balance of power between the legislative and judicial branches.

These bills, five of which are scheduled for a first hearing this week, come at a time when friction between the legislative and judicial branches is high after legislation passed in previous sessions created battles with the courts. After the 2023 session, Republicans in the Senate formed an interim Senate Select Committee for Judicial Oversight and Reform to address this friction.

Adding to the tension is a letter written by Sen. John Fuller, R-Kalispell, and signed by 18 senators that demands an apology for comments directed at Republicans made by an attorney at a State Bar training session earlier this year. Lawmakers discussed that letter in the Senate Judiciary Committee on the second day of the session.

Sen. Barry Usher, R-Yellowstone County, who chairs the Senate Judiciary Committee, said the bills introduced this session have been vetted and prepared by the interim committee, which he said has met about 15 times in the past months in preparation for this session.

Usher highlighted two bills as the most significant: House Bill 39, a bill that would repeal a statute banning political parties from contributing funds directly to judicial candidates and Senate Bill 45, which would create a judicial performance evaluation commission and system.

“There’s things in the constitution that we have the authority to do, and we’ve always had the authority, but because … legislators didn’t do anything about it, doesn’t mean we shouldn’t,” Usher said.

In contrast, Sen. Andrea Olson, D-Missoula, the vice chair of the Senate Judiciary Committee, said she sees many of these bills as an overreach of legislative influence that could alter the balance of power between the three branches of government.

“I believe in the separation of powers,” Olsen said. “I believe that the separation of powers helps maintain a strong democracy. And so, I believe we have enough problems to solve without trying to solve the problems that are not only somebody else’s problems to solve, but they’re truly in a better position to solve those problems.”

The House State Administration Committee heard testimony on HB 39, the party contribution bill, on Wednesday, Jan. 8. Rep. Tom Millett, R-Marion, the sponsor of the bill, said while judiciary independence is a crucial part of the legal system, judicial races will always be influenced by politics.

“We must also recognize the reality that judges are public figures, subject to elections in this state, and that process of selecting judges is inherently tied to the broader political landscape,” Millett said at the bill’s hearing on Wednesday. “This is why political party involvement in judicial campaigns should not be dismissed outright, but seen as an opportunity to enhance the transparency, accountability and public trust in the judiciary.”

Usher spoke in support of the bill, arguing it will increase transparency in elections.

“To me, this is more about being transparent, instead of hiding money in some third party that doesn’t tell us who gave to them,” Usher said. “And most of the time those are out of state.”

Patrick Yawakie, a lobbyist for the Blackfeet tribe and the Chippewa Cree tribe of Rocky Boy, opposed House Bill 39 at its first hearing, arguing that injecting partisanship into the judiciary would be detrimental because an independent judiciary is crucial to check a partisan legislature. As an example, in an interview Thursday, Yawakie brought up four bills that were passed by the Legislature in 2021 that he said would have hampered voting access for Native Americans but ultimately, were blocked by the courts.

“Those four laws were struck down because they were ruled unconstitutional, but it was only the Republican side who was pushing those bills,” Yawakie said.

Evan Barrett, a retired constitutional historian who previously worked as the executive director for the Montana Democratic Party, also spoke in opposition to HB 39.

“We should not be talking about this in terms of politics. There’s politics in everything, almost everything is political in one way or another,” Barrett said. “There’s a difference between that, that word politics, and partisanship. This is a partisan bill, it’s to put party signature on judges, and judges, frankly, are not supposed to accept that.”

Upcoming Bills on Judicial Reform: Rep. Lee Deming, R-Laurel, is sponsoring three of the other bills that deal with judicial reform and said he hopes the bills from the Interim Committee for Judicial Oversight and Reform will change the way the Supreme Court is viewed in Montana. Deming’s bills, which all are scheduled for hearings on Wednesday, Jan. 15, include:

House Bill 52, which revises the rules on agency deference. Deming described this as an “attempt to limit the court’s deference and interpretation, shifting it from the agencies to the people.”

House Bill 65, a bill that aims to audit the State Bar. Deming said, “The idea is that again the legislature has the responsibility to make sure that money collected by the government is spent wisely on the stuff it’s supposed to be spent on, and so that audit is just an attempt to do that.”

House Bill 30, which requires the Supreme Court to fulfill the burden of proof when they challenge the constitutionality of a bill that the legislature passes. If passed, this bill would shift the burden of proof from the legislature to the judiciary, making it more difficult for the judiciary to challenge the constitutionality of a legislative action.

Another bill of note is Senate Bill 43, a bill that aims to revise the injunctive powers of the judiciary. Sen. Daniel Emrich, R-Great Falls, is sponsoring that bill and the hearing is scheduled for Tuesday, Jan. 14.

Sen. Tom McGillvray, R-Billings is carrying SB 45, a bill to establish a Judiciary Performance Evaluation Commission and System, and that bill has been scheduled for a first hearing on Thursday, Jan. 16.

Deming said the legislation is overdue.

“I think we’ve had, frankly, the myth of judicial supremacy in this country for a long time,” Deming said. “I’d like to see Montana take some steps to, kind of overturn that myth.”

Rep. Tom France, D-Missoula, said the special interim committee that created these bills was unnecessary.

“I think it was put together because a few legislators thought they disagreed with some decisions of the Montana Supreme Court,” France said. “And so instead of recognizing that’s part of the law – that sometimes you’re not going to prevail, they’ve decided to totally undermine and overhaul the system.”

Henry Seaton, the lobbyist for the American Civil Liberties Union of Montana, said the bills from the interim Committee for Judicial Oversight and Reform are “extremely concerning attacks on our judicial branch.”

“This negatively impacts everyone, regardless of what end of the political or ideological spectrum you belong on,” Seaton said. “No one benefits when we decide to politicize the judicial branch, which has an explicit goal of remaining unbiased, free and fair. So it burdens all Montanans.”

Emma White 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. White can be reached at emma.white@umconnect.umt.edu.