Rep. Bill Mercer, R-Billings, testifies on House Bills 512 and 518 in front of the Senate Judiciary Committee on Tuesday, March 21, 2023. (Photo by Blair Miller, Daily Montanan)
Rep. Bill Mercer said Tuesday he felt some attorneys would be willing to work for free on behalf of the legislature if the body wants to defend the constitutionality of a bill it passes in court, or if it wants to sue an agency it believes is not adhering to a law it passes.
The Billings Republican presented House Bill 518 and his House Bill 512 – which aim to allow legislators or the legislature as a body to either intervene in lawsuits or file them – to the Senate Judiciary Committee on Tuesday morning. Both measures passed the House without amendments in late February.
“It sounds like you might believe that it is likely to be the case that there would be attorneys willing to take these on – probably some high-profile names that we all know who are really out there with some really strong opinions?” Sen. Jen Gross, D-Billings, asked Mercer.
“I don’t think we can presuppose what the issue is, and I don’t think we can presuppose who may or may not be willing to do pro bono work on a particular matter, but I don’t think it should be something that is ignored,” Mercer responded.
Gross and Sen. Andrea Olsen, D-Missoula, asked most of the questions of Mercer on his two bills, only one of which saw anyone testify in favor or opposition at the hearings. John Sinrud, a realtor and former Republican lawmaker, testified as a proponent of HB 518, decrying city attorneys he said did not follow squatters’ laws and sheriffs who do not arrest undocumented immigrants.
Mercer told the committee he was amenable to it sitting on HB512, which would allow sponsors or cosponsors of a bill to intervene if it is challenged in court, to see how the House proceeds on Senate Bill 278 from Senate Majority Leader Steve Fitzpatrick, R-Great Falls. Fitzpatrick’s bill is similar but was amended to only allow primary sponsors to intervene.
Mercer and other Republican committee members seemed to agree that allowing the primary sponsor to intervene rather than the primary sponsor and cosponsors could be more feasible in case the various lawmakers have disagreements about either the substance of a bill or its progression through the legislature.
“(The sponsor) has an interest in trying to ensure what is put on paper and signed by the governor is construed by the courts in the way the legislature intended,” Mercer said.
Fitzpatrick’s bill was amended by the Senate Judiciary Committee and passed the full Senate. Its initial House committee hearing is scheduled for Friday. Mercer said after the hearing he wanted one of the two proposals to pass either way and that he would work with Fitzpatrick to find the best path forward.
In response to questions from Olsen on HB512 and whether it would meet constitutional muster, Mercer said he believed it did and that if there was a question of whether legislators could intervene in a lawsuit, he believed it was “a fight we should have.”
Gross asked Mercer if he felt the legislative record of a bill was insufficient for the courts to understand the legislature’s intent of a bill that was made law and why a lawmaker might have standing if they have already argued in favor of the bill throughout its legislative process.
Mercer said he felt that having the sponsor intervene and speak further to a bill’s intent would allow lawmakers to have their say on the matter if the attorney general, who would be representing the state in a lawsuit, might have a legal approach or understanding of a bill that is different from the sponsor.
Mercer also acknowledged the bill’s language did not limit the ability for a sponsor to intervene solely in civil litigation and that it could potentially apply to other types of cases as well.
Bill aims to ensure legislature is ‘not a potted plant’
As he told the House Judiciary Committee, Mercer said HB518 was aimed at ensuring the legislature “is not a potted plant” and has the ability to enforce the laws it creates. He said it also defends the legislature against an attorney general who might not “vigorously” defend a law passed by the body – which he said had not happened in Montana but had occurred in other states.
The bill would both give the legislature the power to defend a law whose constitutionality is challenged in court, as well as the ability for the legislature to sue if a law is not being implemented or followed after being signed by the governor. An example, he said, would be if an agency is not following a directive to undertake a review ordered by the legislature.
In order to file suit, the legislature would first have to send notice to whoever it intended to sue. If in session, a majority of both legislative chambers would have to approve a resolution to take legal action. If the legislature is not in session, at least 20 lawmakers would have to ask the secretary of state to poll the legislature to see if a majority of both chambers wanted to move forward.
Mercer said he hoped to write a “brief rebuttal” to the bill’s legal review note, which says the measure could conflict with a U.S. Supreme Court ruling that outlined when a legislature suffers injury and has standing to sue. He said he felt his bill would address legal standing questions the courts have yet to determine.
When asked by Olsen, also a lawyer, why moving forward to litigation wouldn’t require a higher threshold, Mercer said he didn’t believe a two-thirds requirement would be reasonable and said having the majority requirement in the first place would ensure the litigation mechanism “is used sparingly.”
When asked if he thought the legislature would try to challenge rulings that laws it passes were unconstitutional, he said he believed such a legal challenge would be dismissed immediately by a court and that he couldn’t imagine a majority of lawmakers asking to relitigate a law when it had already been found unconstitutional.
In his closing, he urged the committee not to think about specific executive branch officials like the governor or attorney general when considering whether to move the bill forward.
“Don’t put names in those boxes. Just sort of think of this as we don’t know the way things are going to happen at a particular time, and we don’t know who will be executing those responsibilities,” Mercer said. “What we do know is that when we’ve codified things upon an agreement between the executive and the legislature that something should be a duty, we should not be in a position where we can’t ensure that duty is being met.”
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