Senate Select Committee on Judicial Oversight and Reform takes a lesson in the separation of powers.
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Lawmakers on the newly formed Senate Select Committee on Judicial Oversight and Reform covered little new ground in their efforts to reshape Montana’s judicial system in their first meeting earlier this week, but they at least got a lesson in constitutional law.
The committee, announced and formed by Senate President Jason Ellsworth, R-Hamilton, in response to several recent court rulings blocking GOP-backed policies, yielded almost the entirety of its first meeting to one of its non-voting citizen members, Whitefish resident Jim Ramlow.
Ramlow, a tax and estate attorney, delivered two talks to the committee — a morning presentation outlining the U.S. and Montana constitutions, and a second in the afternoon discussing the separation of governmental powers.
Ramlow, who is also a fellow of the nonprofit Frontier Institute — a Montana-based organization that doesn’t report its donors, but is a local affiliate of the national right-wing State Policy Network — appeared generally sympathetic to a view that legislative Republicans have increasingly espoused publicly: that Montana courts are “legislating from the bench,” overreaching their constitutional confines to strike down GOP-backed laws they don’t like in favor of the liberal trial lawyers and environmental groups that challenge them.
“We’re not set up as a court to decide public policy. That’s what, in a democratic society, people do through the Legislature,” Ramlow told the committee. “And if we’re going to second-guess their choices, we’re undermining democracy. We still have a role, because sometimes Legislatures really do overstep.”
Ramlow also highlighted a key nuance in this argument: “While I might be concerned about this Legislature being overruled too often, there might be a situation in which a future Legislature really ought to be overruled, and I would be disappointed if at that point the court didn’t have the power to do that,” he said.
Either way, much of his time — especially during the first half of the Monday meeting — was devoted to answering basic legal and policy questions from the committee’s lawmakers.
Who appoints the members of the Montana Board of Regents? (The governor, as confirmed by the Senate). Is there a difference between quashing and “squashing” a subpoena? (The former, a legal term of art, means to halt; the latter means to press down on something).
Or, as Sen. Chris Friedel, R-Billings, a Senate Judiciary Committee member in 2023, and Sen. Barry Usher, R-Laurel, the committee’s vice chair last year, asked: What happens when there’s a conflict in constitutional interpretations between the state Legislature and the courts? Wouldn’t the U.S. Constitution’s Supremacy Clause mean that the (decidedly more conservative) U.S. Supreme Court should play some role in adjudicating such disputes?
“All issues arising under the Montana Constitution and Montana laws are ultimately decided by the Montana Supreme Court,” Ramlow said. “That’s not a federal issue” — though he noted that it is possible to appeal a Montana court decision to the U.S. Supreme Court.
Most Republican lawmakers on the committee aren’t attorneys. The only one who is, Sen. Steve Fitzpatrick, R-Great Falls, participated remotely and was quiet for much of the day.
Ellsworth said up front that the primary purpose of Monday’s meeting was educational, and that further discussion of specific policy issues and court cases would come later. The committee is not likely to meet again until after the June primary.
The Senate Select Committee on Judicial Oversight and Reform should not be confused with 2022’s similarly named Special Select Committee on Judicial Accountability and Transparency. But the political context of the two committees is similar. The Special Select committee was formed after a 2021 legislative session that saw a legal fight over a bill changing the judicial appointment process spiral into a political fight over legislative subpoenas, judicial lobbying practices and the opacity of the judicial discipline process. In the background were numerous GOP-backed laws that faced constitutional challenges before state district court or state Supreme Court justices. In essence, a surging Montana GOP that had for 16 years been hamstrung by Democratic governors found itself regularly stymied by the comparatively static Montana Supreme Court, a branch of government whose institutional identity is closely intertwined with a state Constitution that affirms broad privacy rights, guarantees a clean and healthful environment, and embraces other progressive ideals.
In 2021, the committee’s ostensible purpose was to investigate Republican allegations of malfeasance in the Supreme Court’s practices of bill lobbying and record retention. This time around, the Senate Select committee’s focus is more straightforward: Ellsworth announced the formation of the committee in the aftermath of a series of rulings that Republican legislators have said improperly interfere with their ability to pass laws and make internal rules. Either the Supreme Court or a district court has in recent months compelled Republican executive branch officials to allow for the override of a gubernatorial veto, made it easier for plaintiffs challenging state laws to obtain attorney fees, invalidated 2021’s transgender sports bill and more.
“Simply put, Montana’s courts are out of control. They’re seizing power that doesn’t belong to them and undermining our constitutional system of checks and balances,” Ellsworth said in a press release announcing the committee’s formation earlier this year.
In 2022, Democrats participated in the Special Select committee, drafting their report on the 2021 session’s signature political conflict to compete with majority party Republicans, who did the same.
But while some Democrats were appointed to the new committee, they’ve all said they won’t participate, and indeed they didn’t show up Monday.
“Instead of reflecting and maybe changing their approach to policy and acknowledging that Montanans have been challenging this legislation, we’ve seen them just engage in an attack on a coequal branch of government,” House Minority Leader Kim Abbott, D-Helena, told reporters at a press conference held during a committee break. Sen. Ryan Lynch, D-Butte, added that the court isn’t proactively invalidating GOP-backed legislation — it’s ruling on challenges brought by Montana citizens.
During the committee’s meeting, Ellsworth noted his disappointment in Democrats’ decision not to participate.
“This is an important meeting. We have a responsibility to the citizens of Montana, and this is not about party politics at all in any way, shape, or form,” he said.
In addition to Senate lawmakers, Ellsworth appointed several non-voting members to the committee, including a smattering of House Republicans and three lawyers: Ramlow, Billings’ Andrew Billstein and Hamilton’s Joan Mell. Mell represented Ellsworth in court last year when a romantic partner sought an order of protection against him. The woman, Ellsworth’s ex-fiancee, ultimately dropped the matter.