Judge temporarily blocks parts of new law changing the judiciary as well as political efforts on college campuses

The constitutionality of the bill was challenged on June 1

By: - June 28, 2021 6:38 pm

Assistant Attorney General Aislinn Brown appears in Lewis and Clark County District Court on June 28, 2021. (Keith Schubert for the Daily Montanan.)

A district judge said on Monday he plans to temporarily block two sections of a bill that prohibit some election activities on public university campuses and requires judges to recuse themselves from cases for accepting specific campaign contributions.

Attorneys for Forward Montana and the State of Montana appeared before Lewis and Clark District Judge Mike Menahan on Monday to make their case about a preliminary injunction on Senate Bill 319. Among other things, SB319 bans voter registration efforts on public college campuses in places like dining halls and athletic facilities. The bill 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 themselves.

On behalf of Forward Montana — a progressive youth civic engagement organization — attorney Raph Grapybill said the plaintiffs would suffer irreparable harm if the bill were to go into effect as written on July 1 — arguing there would be chaos in the courts and damage to free speech.

Menahan agreed.

“There is an irreparable injury to both free speech on campuses and to essentially the parties who are coming to Montana courts for some type of relief,” he said. “ I think the prudent thing to do for me would be to grant the preliminary injunction.”

Attorneys for both parties went back and forth about whether pending litigation would be affected by the bill’s section requiring judicial recusal for campaign donations.

While there is nothing in the bill saying it does not impact ongoing litigation, Assistant Attorney General Aislinn Brown insisted that it would only impact cases filed on July 1, not before.

“SB319 has no retroactivity provisions. So that means the effective date has to mean something,” Brown said. “To the extent that plaintiffs are alleging that SB319 going in effect to pending litigation on July 1 would cause a constitutional harm, that’s not the reading that this court should have.”

She also pushed back against the alleged chaos and harm that the implementation of the bill would cause.

“There’s also no factual basis for the plaintiff’s claims that section 22 will cause confusion or chaos,” she said. “As we’ve discussed a bit, Montana already has judicial substitution statutes. It’s implemented these for many years without widespread panic.”

She added that other states have similar recusal laws for judges who accept donations over a specific amount.

However, President of the Montana Association of Criminal Defense Lawyers — a plaintiff in the case — Colin Stephens said there was already confusion stemming from the provision.

Stephens took the stand Monday and said a judge who has been overseeing a case he has been involved in for two years views the disqualification as waivable. But, he said, “I don’t read the statute that way.”

In another ongoing case related to the death penalty, he said it would be a “dumpster fire” if the judge had to resign because he donated more than $90.

Forward Montana, Lewis and Clark County Attorney Leo Gallagher, the Montana Association of Criminal Defense Lawyers and Great Falls trial lawyer Gary Zadick filed a suit on June 1, alleging it violates the constitution by containing more than one subject and being amended without public comment. The bill is being challenged in two other lawsuits as well.

“The Constitution is usually fairly deferential to things the legislature wants to do. And it’s for that reason that the violations of the Constitution are so striking when it comes to Senate Bill 319,” Graybill said at Monday’s hearing.

Graybill also took issue with the process of how SB319 was passed. One day before the end of the 67th legislative session, SB319 was taken to a free conference committee where members added the challenged amendments that the Legislature approved with no public input.

“These provisions were bolted on and hearing with no public comment 24 hours before the legislature went home, the people with power made all the decisions, and our constitution prevents that from happening,” he said on Monday.

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Keith Schubert
Keith Schubert

Keith Schubert was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. Keith is no longer a reporter with the Daily Montanan.