Montana has spent 1,800 hours and $100k defending challenges to bills passed in the 2021 session

GOP says more bills passed means more litigation

By: - December 27, 2021 7:53 am

The Montana State Capitol in Helena (Photo by Darrell Ehrlick of the Daily Montanan).

The Montana Department of Justice has spent just more than $100,000 and nearly 2,000 hours defending the state from legal challenges against laws passed during the 2021 legislative session, according to a legislative memo.

For the first time since 2003, Republicans controlled the Legislature and the Governor’s office. After 16 years of stalled conservative efforts, the GOP moved quickly to pass 707 bills during the 2021 legislative session, which a legislative GOP spokesman said is 100 more bills than the average of 592 per session from 2003 to 2019.

And the result of those efforts has been a flurry of lawsuits. As of November, the state has spent an estimated 1,803 hours and $102,199 defending 14 cases challenging 18 different laws ranging from reproductive healthcare to how judicial vacancies are filled, according to a memo from Montana Legislative Audit Division.

Kyle Schmauch, legislative GOP spokesperson, said in an email with more bills passed, an increase in litigation is to be expected, and he pointed out that 97.5 percent of bills passed in the 2021 session are going unchallenged.

“That includes Republican lawmakers’ top economic priorities affecting Montanans’ lives on a day-to-day basis, including tax reform, tax relief, regulatory reform, health care reform, and education reform. None of those top priorities are being litigated. Republican lawmakers are proud that the 2021 session was a historic success for Montanans,” he said.

Six of the 18 laws being challenged in court were attached with a legal review note by the legislative attorneys warning they may be subject to scrutiny under the law. However, Schmauch said legal notes are simply meant to inform lawmakers of potential legal questions a bill might raise and are not legal opinions or rulings.

House Minority Leader Kim Abbott, D-Helena, recognized that legal challenges are common after a legislative session.

“In general, there is always the necessity for the interpretation of laws that’s part of our process. I think what’s different this session was there were so many things were signed into law that undermined and undercut the rights of Montanans,” she said.

Throughout the session, Democrats warned of possible legal challenges.

“We were pretty sure that the court would have to decide whether these things were constitutional or not. This is part of the process,” Abbott said. “I think these lawsuits are asking the courts to protect the rights of Montanans.”

The time and cost analysis of legal challenges was requested by Rep. Jessica Karjala, D-Billings and conducted by the Legislative Audit Division.

To estimate the legal costs, the division used attorney hourly rates multiplied by the hours attributed to certain cases, according to a memo from the division. The memo said most DOJ attorneys are paid an hourly rate of $57 per hour, with one exception of $47 an hour — the department typically assigns three or four attorneys to each case.

The number one time and money guzzler for the DOJ has been the Montana Board of Regents challenge to House Bill 102, which revises gun law to allow concealed carry on college campuses. The state has spent $17,517 and 307 hours on the case. A Lewis and Clark County District Judge struck down portions of the law that undermined the regents’ constitutional authority on  Dec.1, but the ruling has since been appealed to the Montana Supreme Court.

In August, Planned Parenthood of Montana challenged the constitutionality of  four bills that it says unconstitutionally restrict Montanans’ access to abortion. Since filing the suit, the state has spent $17,278 and 303 hours defending the law. The case is still pending.

The legislature passed a series of bills that are being challenged by plaintiffs who argue unconstitutionally and harmfully targeted Montana’s transgender community.

One bill, in particular, Senate Bill 280, which makes it harder for transgender Montanans to amend their birth certificates, has cost the state 265 hours and $15,120 in legal fees. The state has also spent 125 hours and $7,088 on another legal challenge to laws passed limiting transgender youths’ ability to participate in sports and limiting the type of healthcare they can receive.

Another GOP priority during the legislative session was addressing alleged liberal bias in the judiciary. One outcome of the effort was Senate Bill 140, which eliminated the Judicial Nominating Commission and awarded the power to fill judicial vacancies to the Governor.

After a long and contentious legal battle that cost the state $10,345 in legal fees and 182 hours, the state’s highest court upheld the law.

In defense of the fees and work hours, Schmauch said in an email, “it’s important for the state to defend laws that were enacted by Legislature, which represents the people of Montana and is the closest branch of government to the people.”

Additionally, he said “the same small group of liberal partisans” challenging the bills are responsible for costing the state money with “politically-motivated lawsuits.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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.