Bill to reduce number of Montana Supreme Court justices is unconstitutional, opponents say
Usher disagrees, says bill is aimed at ‘government efficiency’
Sen. Barry Usher, R-Yellowstone County, testifies on Feb. 15, 2023, at the Senate Judiciary Committee on behalf of his Senate Bill 311, which aims to reduce the number of justices on the Montana Supreme Court. (Photo by Blair Miller, Daily Montanan)
A bill that would reduce the number of Montana Supreme Court justices during the next few years would create backlogs that would delay judicial decisions and might violate the constitution, representatives for Montana judges and attorneys told a Senate committee Wednesday.
“Justice delayed is justice denied,” said Bruce Spencer, representing the Montana Judges Association.
Senate Bill 311, sponsored by Sen. Barry Usher, R-Billings, aims to remove one Supreme Court justice position in January 2025 and another in January 2027, leaving five total justices on the court, including the chief justice.
But if the bill is signed into law and the Supreme Court finds that process unconstitutional, the bill says there would be no 2028 election for the two justice positions, effectively putting the court in the same spot it would be under the initial mechanism — down two justices.
The Montana Constitution says there shall be four justices and one chief justice on the court, but the legislature is allowed to up the number to six justices and the chief justice.
In 1979, the Montana Legislature increased the number of justices on the court from four to six, plus the chief justice. The legislature has on multiple occasions in the years since decided to keep the number at six.
Usher told the Senate Judiciary Committee, on which he sits, he believes since some Supreme Court cases are decided by panels of five judges instead of all seven, and since some neighboring states only have five justices on their high courts, that Montana should follow suit.
He told Democrats on the committee who asked the purpose of the bill and who had asked for it that he had been thinking about it for two years and that it was aimed at government efficiency. A fiscal note says the bill would save the government a few hundred thousand dollars by FY2027 by eliminating the salaries of the justices.
No one showed up to the hearing to testify in support of his bill. However, it could be poised to pass the committee once executive action is taken because six of the seven Republicans on the 11-member committee are cosponsors.
Those who did testify all did so in opposition, saying the bill creates a scenario where for two years there would be six total justices on the court, including the chief justice, which could result in tied decisions. Further, they said it would harm Montana citizens who are seeking decisions and remedies from the court.
“The people that suffer from a delay are the clients — the individual Montanans, the individual businesses, which they just want a final result,” said Al Smith, the executive director of the Montana Trial Lawyers Association. “They want to be able to get on with their lives, get on with their business and know that there’s been a final result in the case.”
The Montana Supreme Court hears appeals from district courts as well as original proceedings and disciplinary cases involving the state bar. Spencer told the committee there were 733 total new case filings in 2022 and 277 opinions issued. A handout he gave to lawmakers noted there were 663 pending cases carried into 2023.
Spencer lauded the speed by which cases were being heard and resolved with the seven-member court, pointing to a bench and bar questionnaire done last year that surveyed nearly 1,000 judges, law school faculty and appellate attorneys. He also provided the committee with data showing most cases are disposed within 180 days, and oftentimes much sooner.
The survey showed that 93% of those polled believed the court issues opinions in adversarial cases in a timely fashion – up from 31% in 2008 – and that 95% believe the court finishes its total workload in a timely manner, which was up from 38% in 2008.
Spencer said moving the number of justices back to five would only delay case decisions because there would be fewer justices to look at cases and write opinions.
“We firmly believe it will not work with five justices,” he said. “Given that, we really believe this is bad public policy. You’re going to delay justice in decisions in a lot of cases.”
Most of the opponents also called into question the constitutionality of the bill, noting that the constitution does not say the legislature is allowed to reduce the number of justices on the court, only increase the number from four to six.
A legal review note attached to the bill says the measure raises constitutional questions and that “there is no discussion in the Montana Constitutional Convention transcripts regarding five associate justices.”
Sean Slanger, testifying on behalf of the State Bar of Montana, noted that rules of statutory construction say judges are “not to insert what has been omitted or to omit what has been inserted” in reference to the lack of any constitutional language about the legislature being able to decrease the number of justices.
Usher said he disagreed with the legal review note and that he believed lawmakers could cut the number of justices on the court. He said even with six justices, he believed that the chief justice could use five-justice panels, and he said he believes there were not many cases that have had 4-3 or 3-4 decisions.
Spencer told the committee that Chief Justice Mike McGrath was concerned about the bill and its potential impact on the court’s workload. When Sen. Daniel Emrich, R-Great Falls, asked Spencer to provide his communications with McGrath, Spencer shut him down, saying his communications were subject to attorney-client privilege.
Spencer told the committee the current system is working and noted that it was not asking for an intermediate appellate court that would theoretically cut down on the Supreme Court’s workload. And he pushed back against a characterization that with many cases being sent to five-judge panels, some justices were sitting in reserve and their positions could be cut.
“There are never two judges sitting around not doing their fair share,” Spencer said.
In his closing remarks, Usher answered an earlier question from Sen. Jen Gross, D-Billings, about what would happen with a tied court. He said since the chief justice had weighed in on the matter through Spencer, he believed the justice would have to recuse himself if the bill was signed by the governor, then challenged in the courts, which would get the panel deciding on its constitutionality down to five judges.
“If we only need five justices, let’s get there. How we get there, it’s spelled out in the bill. I’m OK with it either way,” he said. “It’s about efficient government. And the citizens of Montana are not going to be hurt if we go down to a panel of five because we’re already doing panels of five.”
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