Senate Judiciary passes bills on court powers, criminal justice, stream access

Committee hears, takes action on 17 bills to start the week

By: - February 28, 2023 8:12 pm
The Senate Judiciary Committee took executive action on a slate of bills on Tuesday, Feb. 28, 2023, with the transmittal deadline coming up Friday.

The Senate Judiciary Committee took executive action on a slate of bills on Tuesday, Feb. 28, 2023, with the transmittal deadline coming up Friday. (Photo by Blair Miller, Daily Montanan)

The Senate Judiciary Committee sent a slate of bills to the Senate floor Tuesday, largely on party lines, ahead of Friday’s deadline to have all general bills pass at least one chamber.

The committee, comprised of seven Republicans and four Democrats, considered and took action on 17 bills on Monday and Tuesday that involved Montana courts and criminal justice, labor law, stream access, marriages and the powers of the legislature.

Committee passes bills concerning court powers, criminal justice system

Senate Bill 410, sponsored by Sen. Barry Usher, R-Yellowstone County, would remove from statute the duty assigned to the state courts administrator, a frequent target of the Republican majority in the legislature, to “perform other duties that the Supreme Court may assign.”

Usher said he brought the bill because there were accusations the court administrator had been used “inappropriately” and that the Supreme Court had other employees who could perform “other duties as assigned.” No one testified for or against the bill Monday.

Repeatedly pressed by Democrats, some of whom brought up the special committee on judicial integrity formed by Republicans last year, as to what he thought the issue really was with the administrator, Usher obfuscated. Chairman Sen. Keith Regier, R-Kalispell, said the current duties “can be anything from making coffee to running duties off.”

The committee passed the measure in a party-line 7-4 vote, with Democrats against it.

Usher’s Senate Bill 439 also passed on a party-line 7-4 vote. Since statute mandates the type of drug that must be used for lethal injection on Montana death row, and since a 2012 ruling enjoined the state from using that drug protocol, Usher said his bill aims to start the process of allowing the state to find a new protocol to administer the death penalty.

Usher reiterated several times that the bill was not about whether the state should or should not continue to pursue the death penalty in cases, but was rather giving the state latitude in terms of having more general language in statute so other drugs could perhaps be used. Montana has not put anyone to death since 2006, and only two men remain on its death row.

Attorney General Austin Knudsen testified in favor of the bill, saying it used language similar to Texas’s that was not as narrow.

Opponents, including representatives for the Montana Innocence Project, said even drugs used in other states have led to botched and lengthy executions, and some of those drugmakers have stopped trying to provide them to states that seek to use them to administer the death penalty.

Another bill from Usher, Senate Bill 440, passed on a party-line 7-4 vote. The bill concerns “Interest on Lawyer Trust Accounts” (IOLTA) funds, which are sent, as per federal law and the Montana Rules of Professional Conduct, to the Montana Justice Foundation to support grants to help provide court representation for lower-income Montanans.

Usher’s bill would require that interest money held by bank accounts instead be sent back to the clients who paid into the accounts – often with retainer money, which Sen. Andrea Olsen, D-Missoula, an attorney, said often only sit in the IOLTA funds for a few days or weeks.

Usher had argued the Supreme Court was acting as a taxing authority by sending the interest funds to the Montana Justice Foundation. AG Knudsen, who said he was representing himself and not the office, spoke as a proponent of the bill, telling the committee “the ends don’t justify the means” and that there were “a lot of attorneys” in Montana who have problems with the fund but who are “afraid to speak up” because they have to practice in front of the Supreme Court.

But Olsen and several attorneys said not only were the interest amounts typically very small in nature, it would be difficult for banks to keep track of who paid in how much, and how much interest the money collected while in an IOLTA fund. Further, they said, the U.S. Supreme Court has determined the interest money is not a tax, that all 50 states have similar setups, and that banks cannot pay out interest on the accounts unless they are linked to nonprofits, like the Montana Justice Foundation.

“If the sole reason is to remit interest to clients, that’s impossible to reform” said Patricia Cotter, an opponent to the bill who served as a Montana Supreme Court justice.

Opponents said taking the interest money away from the Montana Justice Foundation would hamper its efforts to do pro-bono and support work for low-income clients across the state.

“I can’t tell you how problematic and concerning it is to me that we don’t understand and hear from the opposition how unworkable and unnecessary this bill is,” Olsen told the committee before it voted to pass the bill.

Senate Bill 277, sponsored by Sen. Shane Morigeau, D-Missoula, was passed out of Senate Judiciary on a 10-1 vote, with Sen. Steve Hinebauch, R-Wibaux, the lone no vote. The bill would remove the statute of limitations for sexual abuse of children to allow civil actions to be brought against an abuser at any time.

Morigeau said his bill expands upon a 2019 bill that raised the age to 27 at which people could file claims for injury from sexual abuse. But he said he felt the body could do better this time around. He said the average age at which most victims of child abuse come forward is 52, so dropping the statute of limitations would allow more victims to confront their abuser and “to come forward and get justice.”

The committee voted to table two bills from Sen. Jeremy Trebas, R-Great Falls – one that involved allowing additional people to file requests to involuntarily commit people with severe mental health issues for treatment, and another that made changes to how police can use eyewitness lineups.

The former, Senate Bill 468, was tabled after filing on a 3-8 vote, with members of both parties saying the bill felt rushed, like an overreach in terms of who could try to commit people, and one that could be a constitutional violation regarding incarcerating people against their will.

Senate Bill 464, the bill on the eyewitness lineups, failed on a 5-6 vote. It would require peace officers who are administering a witness lineup to be unaware of which person in the lineup is the suspected perpetrator to cut down on possible influence of the witness. But Trebas successfully blasted the bill to second reading on the Senate floor Wednesday. Committee member Sen. Susan Webber, D-Browning, said she had intended to vote for the bill in committee. Regier and Usher said they felt the bill would not work in smaller police departments with few staffers.

Bills take aim at asserting legislative powers

The committee also passed on a 7-4 party-line vote Senate Joint Resolution 15, sponsored by Sen. Tom McGillvray, R-Billings. It asserts that the U.S. Supreme Court’s 1803 Marbury v. Madison decision, which set up judicial review, does not assert “that it is the exclusive role of the courts to say what the law is or that their decisions are final and binding on other branches of government.”

He and the proponents who spoke in favor of the resolution called the court’s decision a “myth” and questioned why the legislature was not able to review court decisions when courts find a law passed by the legislature is unconstitutional.

Sen. Theresa Manzella, R-Hamilton, argued that it was the legislature’s responsibility as much as the courts’ to recognize which laws are consistent with the constitution.

Webber called the resolution unconstitutional, while Olsen said calling the longstanding court decision a myth was “offensive.”

“I think this resolution, an affirmative vote violates our obligation to uphold the Montana constitution we swore to uphold when we became legislators,” said Olsen.

Senate Bill 490, sponsored by Sen. Greg Hertz, R-Polson, also passed on a party-line 7-4 vote. The bill broadens the legislature’s authority and investigative powers, and also provides interim, statutory and other committees subpoena power. The bill would allow committees to compel the production of records, as well as a witness to testify at a hearing, if they are for legislative purposes under the measure.

Hinebauch’s Senate Bill 436 also passed the committee on a 7-4 party-line vote. It adds the governor, secretary of state, attorney general, state auditor, and Office of Public Instruction superintendent to the list of people who should represent public employers in collective bargaining.

A representative for the Department of Justice testified in favor of the bill, saying Department of Administration staff typically are involved in the bargaining but not accountable to the attorney general.

But a representative for the Montana Federation of Public Employees said elected officials are already authorized to take part in bargaining but often send representatives instead. He said the bill was redundant because the agency heads already have to sign off on agreements as well.

Manzella’s Senate Bill 434, which would establish a “Constitution Settlement Commission of the States,” passed on a 7-4 vote with support from Republicans. The theoretical commission is a “new idea,” Manzella said, and would put one paid representative from the legislatures of at least nine different states to discuss how the federal government was overreaching and encroaching on states’ rights, she said.

Manzella said the idea was also being considered in Wyoming and South Dakota, but admitted it was a far-off thought at this point. No one spoke in favor or against the bill at its hearing, but Democrats on the committee asked what its point was, since Manzella said the commission would have no authority. She said the idea came to her from lobbyist Gary Marbut, president of the Montana Shooting Sports Association.

Bill draws concern over Montana stream access law changes

Senate Majority Leader Steve Fitzpatrick’s Senate Bill 497 makes changes to Montana’s stream access law, making a carveout for a prescriptive easement if “signage generated by a government entity” is in place for more than five years showing that someone is about to enter private property. Further, it would make it so anyone alleging a prescriptive easement could not use the private attorney general doctrine and disallow plaintiffs who win those cases to receive attorney’s fees.

He gave an example where if a county said a road is private and not public, and people continue to use the road, they would not be able to create a prescriptive easement to continue to use the road even if they had in the past.

Opponents representing Trout Unlimited and the Montana Wildlife Federation spoke in opposition to the bill because it started opening up changes to the stream access law that is a cornerstone of water and public access law in Montana and the West. Both representatives said the bill needed more work and more input from others before being “shoved” through, as Colin Cooney of Trout Unlimited said.

The measure also passed on a Republican-led 7-4 party-line vote.

Sen. Daniel Zolnikov’s Senate Bill 488 to outlaw common law marriages in Montana passed in a 7-4 vote, though it was not on party lines. Zolnikov said the bill was aimed mostly at helping heirs in the event a common-law partner dies without a will.

The committee killed two bills from Sen. Ellie Boldman, D-Missoula – one that would have prohibited housing discrimination based on a person’s source of income, and another that would have aimed to keep people who have been committed to mental health facilities and are dangerous from buying guns under certain conditions.

The committee had no further bills scheduled for hearings this week and is not likely to meet again until next Friday, Chair Regier said at the end of Tuesday’s hearing. The Senate is expected to start its floor session at 10 a.m. Wednesday and hear more than 50 bills on second reading.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.