Court rejects motion to challenge additional bill as part of SB140 case

SB402 hasn’t been signed yet, but plaintiffs allege it has same constitutional issues as related SB140

By: - May 6, 2021 5:14 pm

The state Supreme Court on Thursday rejected a motion from a group of plaintiffs suing over a law signed this session changing how judges are appointed to broaden their challenge to a separate but interlinked bill that would change the makeup of the Judicial Nominating Commission, a body that the original bill in the suit — Senate Bill 140 — would abolish.

Former Republican Secretary of State Bob Brown, former Democratic lawmaker Dorothy Bradley and other plaintiffs in the suit against SB140 filed a motion Wednesday to amend their petition to include SB402, a bill drafted by lawmakers that would kick in only if the court strikes down SB140. Instead of abolishing the nominating commission and giving sole appointment authority to the governor, as in SB140, SB402 would instead expand the commission, which assembles applicants for judicial vacancies, to include more governor-appointed laypeople.

Although lawmakers in the GOP have been explicit about the connection between the two bills, the court ruled that the expanded challenge is not “ripe for consideration” and set aside the May 5 motion. For one, the court said, SB402 has yet to receive a signature from the governor and as such is not law.

“Even if signed, it will not become law unless this court declares SB140 unconstitutional, the question at issue in this case,” the May 6 ruling says. “Second, the grounds on which Petitioners challenge SB 402 differ from the issues in this case. Briefing on the validity of SB 140 is virtually complete; amendment at this juncture, with additional necessary briefing on those distinct issues, would cause delay in the Court’s consideration.”

The plaintiffs, a group that also includes Constitutional Convention Delegate Mae Nan Ellingson, have until May 11 to file their next brief.

Clifford Edwards and James Goetz, attorneys for the plaintiffs, argued in their filing that SB402 was improperly introduced after a legislative transmittal deadline, violates laws mandating that bills can only concern a single subject and, thanks to amendments added late in the session, impinges on judicial independence and free speech rights.

One amendment in question, requested in a conference committee by bill sponsor and Senate Majority Leader Cary Smith, R-Billings, restricts judges from participating in any legal action over the constitutionality of a bill if they’ve previously contacted a legislator about it, and places restrictions on judges who serve on cases relating to laws on which the Montana Judges Association has offered a position. This language ties back to the ongoing battle between the court system and the Legislature over the Judges Association’s lobbying efforts and the court’s records retention, a fight that itself stems from the SB140 litigation.

“In particular, the measure is unconstitutionally vague because it prohibits judicial officers from sitting on cases on an ‘issue’ that the Montana Judges Association has ‘expressed support or opposition’ on the ‘same or similar policy matter’,” reads the plaintiff’s May 5 motion to add SB402 to the original complaint. “Moreover, under First Amendment principles, this recent amendment is both unconstitutionally overbroad and underinclusive.

“As Chief Justice (Mike) McGrath and others eloquently stated in a recent hearing before a legislative committee, the mere fact that a presiding judge may have expressed an opinion on the desirability of a piece of legislation does not mean that the judge has preconceived opinion on constitutionality,” it continues.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.