Lawsuit challenges last-minute attempt by lawmakers to change judiciary, limit political speech on campus

‘Strange bedfellows’ of attorneys and Forward Montana sue to stop SB319

The stairs of the Montana Capitol in Helena, Montana (Photo by Eric Seidle for the Daily Montanan).

A coalition of unlikely litigants has filed a lawsuit challenging the Legislature’s last-minute attempt to curb political speech on campuses and disqualify judges. The lawsuit, filed in Lewis and Clark County, brings the number to more than a dozen challenges the GOP-dominated legislature will have to defend.

The latest challenge, filed Tuesday by Forward Montana, the Montana Association of Criminal Defense Lawyers and Lewis and Clark County Attorney Leo Gallagher, along with other notable attorneys, including Alexander Blewett III, after whom the state’s law school is named, calls into question the legality of Senate Bill 319 which was heavily amended in the final day of the 2021 Legislative session.

Originally, the bill started out as a change that would allow candidates to raise money jointly. However, during a free conference committee less than 24 hours before the legislators adjourned, the bill was amended to include prohibiting some election activities from public university campuses, and also requires any judge who has received $91 or more in the past six years from any lawyer or party in a lawsuit to recuse himself or herself.

The lawsuit challenges the newly-enacted law on several constitutional points, both state and federal, including First Amendment protections. The law also would seem to violate the state constitution’s prohibition against a bill having more than one subject, or being amended without public input.

The group challenging the law has named Gov. Greg Gianforte in his capacity as executive in charge of seeing that the laws of the state are enacted. The suit also brings together unlikely partners, including defense attorneys and a prosecuting attorney, Gallagher.

“Any time I can stand side by side with Leo Gallagher is an interesting but good time,” said Colin Stephens, President of the Montana Association of Criminal Defense Lawyers. “Bad legislation makes strange bedfellows.”

Attorneys, which include Raph Graybill of Great Falls who was the Democrat challenger to Attorney General Austin Knudsen, argue the Montana Constitution is clear in Article V, Section 11: “Each bill…shall contain only one subject, clearly expressed in its title.” Also, that no bill shall “be so altered or amended on its passage through the legislature as to change its original purpose.”

The lawsuit outlines a hurried, last-minute approach, where the free conference committee “took control of SB319 and grafted two entirely unrelated provisions onto it. The first provision requires judges to recuse themselves anytime they have received $91 or more in independent spending from a political committee that a party or attorney has supported financially in any amount.

“The second provision bans voter registration and other First Amendment activities on public university campuses, such as near a Montana Grizzly football game. The hearing that commandeered SB319 lasted just sixteen minutes and was closed to public comment. The new bill passed both houses the next day.”

The majority of the parties listed on the suit are lawyers and they argue that the legislation could means “hundreds of substitutions” in pending cases just because a “defense attorney, prosecutor or party has made a donation in the past six years covered by the bill.” They say the effect of the legislation would be to grind the courts to a halt, and that the bill’s language is vague.

The lawsuit also outlines how attorneys could disqualify any judge they may not like, or even all judges by simply making a small donation to them. This could leave some without access to the courts, another constitutional guarantee.

“Going forward, attorneys will be able to use this provision to engage in ‘legal’ forum selection by contributing $91 to every judge they would prefer not to draw,” the suit said. “(The bill) imposes a penalty on litigants and attorneys who have made or will make political contributions by rendering them unable to appear potentially before a whole array of judges whom they supported, even indirectly.”

The suit also references the Constitutional Convention of 1972 in which the new state constitution was drafted. During the discussions, the single-subject rule was adopted specifically so that “additional material” could not be “slipped into” bills.

Attorneys said that the one-subject, one-bill rule has been violated in SB319 as joint fundraising – the original purpose of the bill – is a far cry from either judicial recusal or political speech on campus.

“They are independent and incongruous subjects. They are plainly unrelated,” the suit said.

Moreover, the suit said that the government doesn’t have a compelling reason to restrict political speech on campus.

“In no uncertain terms (SB319) imposes a content-based restriction (barring undefined ‘voter turnout efforts,’ among other election-related communications) on a class of individuals organized into a political committee and it was passed without reference to any compelling or substantial state interest,” the suit alleges.

The suit also asks the district court to declare Senate Bill 319 unconstitutional and void, and stop Gianforte from enacting any provisions of the bill.

“Our democracy works best when everyone is involved, not just a few lawmakers behind closed doors. Think I’m exaggerating? The hearing for this bill lasted only 16 minutes with no opportunity for public input,” said Kiersten Iwai, Executive Director of Forward Montana. “That’s the definition of closed-door lawmaking.”