The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General’s Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).
The Montana Supreme Court ruled Wednesday that the plaintiffs who successfully challenged a portion of a 2021 bill can ask for attorney’s fees from the state, in part because the Legislature violated the Constitution in putting multiple topics under one bill title in the final days of the session.
In a 5-2 opinion written by Chief Justice Mike McGrath, the court declined to award the plaintiffs in the case the fees but remanded that decision back to Lewis and Clark County District Court Mike Menahan, who handled the original case.
The majority’s opinion says that while in most cases, courts in Montana do not award attorney’s fees in constitutional question cases or step on the toes of the other branches of government, there are certain cases where the attorneys should be entitled to fees if they win.
In this case, the majority said the plaintiffs’ attorneys should be entitled to receive fees “because of the process through which the unconstitutional sections of this bill came to be: an obviously unlawful bill adopted through willful disregard of constitutional obligations and legislative rules and norms.”
“Today’s decision affirms a basic, but important principle: No one is above the law. And that means that when the government violates the Constitution, the People have the power to enforce constitutional rights,” Rylee Sommers-Flanagan and Raph Graybill, the two attorneys for the plaintiffs, said in a statement.
The plaintiffs, which include Forward Montana and the Montana Association of Criminal Defense Lawyers, initially sued in June 2021 seeking to block two amendments put into Senate Bill 319 during a free conference committee toward the end of the 2021 session, which were set to take effect July 1.
One of the amendments required judges to recuse themselves from cases in which any of the attorneys donated $90 or more to their campaigns during the past six years, and the other that barred political committees from registering voters on public college campuses.
Attorneys for the groups and the lawyers who were plaintiffs in the case argued that the new provisions would limit Forward Montana’s ability to do get-out-the-vote work and force judges to recuse themselves in dozens of cases.
And they said that the last-minute changes made to the bill – in a 17-minute free conference committee hearing without public comment – violated provisions of the constitution that require a bill to contain only one subject that is expressed in its title and say that a bill’s original purpose cannot change as it goes through the legislative process.
The district court temporarily enjoined those two provisions of SB319 days before they were set to take effect, and later that year denied the state’s request to dismiss the case after the plaintiffs asked for summary judgment in the case. The state had argued the plaintiffs lacked standing in the case and that the sections of SB319 added in free conference committee did not violate the constitution.
But Menahan sided with the plaintiffs in February 2022, saying the original purpose of the bill, “an act generally revising campaign finance laws,” did not cover the two provisions that had been added because they did not directly relate to campaign finance.
Attorney General Austin Knudsen, whose office represented the state as part of its duty to defend state law, did not appeal the decision, which the Supreme Court majority wrote in Wednesday’s opinion was “a tacit acknowledgment that the bill was unconstitutional.”
But the district court denied the plaintiffs’ attorneys request for attorney’s fees, saying that while they had met all three factors required under Montana law to be eligible to receive them, the case was a “garden-variety” constitutional challenge that shouldn’t qualify for attorney’s fee payments under the private attorney general doctrine because Knudsen did not act frivolously or in bad faith in defending the bill. The attorneys appealed that decision to the Supreme Court.
In his analysis, McGrath says Montana courts use the American Rule, which says that parties must pay their own attorney’s fees absent specific statutory or contractual provisions. He wrote that there are exceptions to the rule that Montana courts “construe narrowly so the exceptions do not swallow the rule.”
That includes the private attorney general doctrine, in which the private party seeking the attorney’s fees must show the societal importance and constitutional interests of the decision, the number of people standing to benefit, and the necessity for private enforcement.
Part of Montana courts’ interpretation of the doctrine goes back to a 2012 case involving then-Attorney General Steve Bullock, which is cited extensively throughout the majority and dissenting opinions.
American Tradition Partnership had challenged a state law on corporate political donations shortly after the Citizens United decision was handed down by the U.S. Supreme Court, saying the decision nullified the state law. The case went all the way to the U.S. Supreme Court, where the group won, then asked for attorney’s fees.
In that case, the state Supreme Court denied the group’s request, saying the plaintiffs and defendants had both argued in good faith for “important constitutional interests” and thus, awarding attorney’s fees against Bullock should not happen in “garden variety” constitutional challenges.
The court at the time said in addition to the good-faith arguments, Bullock was defending century-old law dealing with corruption, and the case was brought at a time when the U.S. Supreme Court’s decision in Citizens United created a massive shift in the American legal landscape.
McGrath wrote in Wednesday’s majority opinion that this case is different, though.
“Here, however, appellants alone were vindicating important constitutional interests,” McGrath wrote. “The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interests in defense of these actions.”
McGrath wrote that while the court has previously used caution in awarding attorney’s fees against the state in “garden variety” constitutional challenges to avoid infringing on the separation of powers and wanted to use caution in this case as well.
But McGrath’s majority opinion said that by amending SB319, adding provisions of bills already killed that session, lawmakers willfully were including legislation “clearly outside the scope of the title of the introduced bill.”
“Appellants vindicated important constitutional rights, and our typical judicial restraint from interference with the proper functioning of other branches of government was overcome by the unconstitutional actions and willful disregard of legislative standards in adopting these sections,” McGrath wrote.
McGrath was joined in his opinion by Justices Laurie McKinnon, James Jeremiah Shea, Beth Baker and Ingrid Gustafson. Justice James Rice wrote the dissent, joined by Justice Dirk Sandefur.
Dissenting justices, Senate majority leader respond
In the dissenting opinion, Rice wrote that the majority should not award fees in this case if it did not in the American Tradition Partnership case. He said that case involved much more attorney work and greater constitutional and public interests; that the majority opinion adds new standards to levels of unconstitutionality without support; and that the majority is wrongly stepping into the Legislature’s purview over how it interprets its own rules.
“In my view, the use of ‘legislative norm’ violations, including the Court’s repeated citation to internal legislative rules … to establish wrongdoing, is an inappropriate intrusion into another branch and sets a troubling precedent,” Rice wrote in the dissent. “It is only the requirements of the Constitution we are to be concerned about. More broadly, the Court’s use of the doctrine as a measure to punish the Legislature is a drastic departure from the purpose of the doctrine as established in our precedent.”
Rice agreed with the district court’s decision not to award attorney’s fees, saying this case was more “garden variety” than the 2012 case in which fees were not awarded.
“The equitable nature of the doctrine makes it critical that courts ensure it is not applied through a lens of judicial endorsement of the litigation, that is, granting fees where a court favors a plaintiff’s constitutional objectives, while rejecting fees where a court disfavors a plaintiff’s constitutional objectives. Justice demands that all parties receive equal treatment under the doctrine,” he wrote.
The majority’s decision could have broad ramifications, as many bills passed and signed in the 2021 and 2023 sessions are being challenged in court by private parties, some of which judges have already sided with the plaintiffs against the government.
A spokesperson for the Attorney General’s Office did not immediately respond to a request for comment on the court’s decision. A footnote in the opinion says the plaintiffs’ attorneys said they were seeking about $105,000 in compensation for 335 hours billed on the case.
Senate Majority Leader Steve Fitzpatrick, R-Great Falls, said in a statement the majority had misinterpreted the Legislature’s rules about how conference committees work and regarding what type of language can go into multiple bills. He also said the majority shouldn’t have weighed in on the legislative rules in the first place, agreeing with the dissenting justices.
“This isn’t a disagreement over an opinion or policy, it’s about legal accuracy,” Fitzpatrick said. “The Supreme Court decided to award attorney’s fees in this case, and in order to justify their opinion they relied on a totally incorrect interpretation of legislative rules.”DA 22-0639 Published -- Opinion
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