Bill would shrink state Supreme Court from seven justices to five

Legislation heard in a Senate committee this week would reduce the number of associate justices on the Montana Supreme Court from six to four over the next several years.

Under current law, the court comprises seven members: a chief justice and six associates.

Senate Bill 311, sponsored by Sen. Barry Usher, R-Laurel, is one of several bills under consideration this session that would reshape the court system, its ethical standards and its processes.

The purpose of the bill, Usher testified, is to create “efficiencies” in state government.

“I’ve always wondered how much work our Supreme Court does,” Usher told the Senate Judiciary Committee Wednesday. “So I did some research and it was amazing to me that California, which has got 39 million people, has the same amount of Supreme Court justices as a state that has 1 million people.”

The court often appoints five-judge panels to hear cases, Usher said. And its caseload has shrunk by 15% between 2018 and 2022, he noted, citing court data — so why not shrink the number of justices?

The answer, Montana Judges Association lobbyist Bruce Spencer testified, is, as Usher suggested, efficiency.

“Simple math and logic tells you that if you take the same number of cases now and give it to fewer justices, it’s going to take longer to get opinions,” Spencer, who appeared in opposition to the bill, told the committee.

He said the bill has gotten the attention of Chief Justice Mike McGrath, who has expressed concern about its impact on the court’s workload.

More than 730 matters landed on the high court’s docket in 2022, Spencer said. That may represent a decrease from, say, 2015, when the court had more than 800 case filings on its docket, but it’s still significantly more than the court has dealt with historically. Additionally, he said, Montana doesn’t have an intermediary appeals court, as does California. As a result, the state Supreme Court must hear any appeal that reaches its chamber.

The court has an internal rule dictating that it should decide cases within 180 days, Spencer said, and reducing the membership of the court would make meeting that deadline more difficult.

“It’ll be justice delayed is justice denied,” he said.

The 1972 Montana Constitution envisions a court with four associate justices and one chief justice, but gives the Legislature the authority to increase the number of associate justices to six. Lawmakers took that step in 1979, and have reaffirmed that choice in multiple sessions since.

The Constitution does not mention the possibility of lawmakers reducing the number of justices, nor does it say the total number of justices on the court can be anything other than five or seven.

That could create a constitutional conflict for Usher’s bill, which lays out two scenarios for reducing the number of justices.

Under the first, the state would not hold a Supreme Court election in either 2024 or 2026. That would eliminate the court’s third and fourth seats, which are occupied by justices Dirk Sandefur and Beth Baker, respectively.

But that method would create a two-year period during which the court has a total of six justices — a circumstance not described in the Constitution that would leave open the possibility of evenly split decisions. Legislative staff flagged that constitutional friction in a legal note attached to the bill.

As a result, the bill describes a second scenario contingent upon the court finding the first method unconstitutional. In that version, the state wouldn’t hold a Supreme Court election in 2028, the next year that two associate justice seats will be on the ballot at the same time. That would remove justices Laurie McKinnon and Jim Shea.

But even that could be legally problematic, Sean Slanger testified on behalf of the Montana State Bar.

“[The Constitution] allows the Legislature to increase justices,” he said. “It uses that word, ‘increase.’ It does not provide that the Legislature can decrease judges. The rules of statutory construction provide that a judge or justice cannot insert what has been omitted or omit what has been inserted.”

Usher dismissed that argument in an interview following the hearing Wednesday. The Legislature’s ability to decrease the number of justices is implied, he said.

The committee has yet to take action on the bill.

USHER TOLD Montana Free Press Wednesday that he doesn’t view SB 311 as related to other GOP-backed judiciary bills this session.

“This is my thought, my process,” he said.

But friction between Republican lawmakers and the judicial branch has surfaced as a persistent theme in recent years, especially since the 2021 session, when Republicans passed about two dozen bills that have faced constitutional challenges in court.

Among those proposals was Senate Bill 140, which gave the governor direct power to fill judicial vacancies. While the state Supreme Court eventually upheld that measure, the legal battle over the bill ignited a broader conflict between the Legislature, its attorneys and the judiciary over the lobbying practices of the Montana Judges Association, the role of the Supreme Court’s administrator, the relative opacity of the state’s judicial disciplinary body, the reach of legislative subpoena powers and more.

This session, Republicans have introduced numerous proposals that speak to that conflict, though they often hesitate to draw a direct connection in on-the-record interviews.

The proposals include a slate of bills from Sen. Steve Fitzpatrick, R-Great Falls, that would make it more difficult for plaintiffs to obtain injunctive relief in court proceedings. The flagship proposal of that suite is Senate Bill 191, which directs Montana courts to adopt federal standards for granting injunctions and temporary restraining orders, which Fitzpatrick says are more stringent.

The language in SB 191 mirrors an argument that attorneys for the state made in litigation surrounding abortion restrictions passed in 2021, Planned Parenthood v. State: in short, that it’s simply too easy to obtain an injunction in Montana courts. That bill has flown through the process, leaving minority-party Democrats suspicious that Republicans are planning to pass the bill in advance of possible litigation over other issues on the agenda this session.

Other bills target the Judicial Standards Commission, the five-person body that reviews complaints of judicial misconduct. House Bill 326, sponsored by Rep. Kerri Seekins-Crowe, R-Billings, gives the Montana Attorney General and partisan officials in the Legislature more power to appoint members to the commission. Another JSC bill, Kalispell Republican Sen. Keith Regier’s SB 313, would provide for public disclosure of elements of the commission’s process.

As Sen. John Fuller, R-Whitefish, put it during debate on his bill to give the partisan clerk of court hiring and firing power over the nonpartisan court administrator, some conservatives regard the court as a “self-licking ice cream cone.”

Still more proposals would allow judges to declare partisan affiliations while they run for office, an issue that arose during the 2022 Supreme Court race between Justice Ingrid Gustafson and current Public Service Commission President James Brown.

Several of the bills would put the court in the awkward position of adjudicating cases related to its own administration — an arrangement ripe for criticism from the GOP. Attorneys for the Legislature sought sweeping recusals by justices during the 2021 legal fight.

Usher, who chaired the House Judiciary Committee last session, said Republicans are generally interested in placing sideboards on a branch of government they see as improperly elevated above the Legislature and the executive. Republicans hold supermajorities in both chambers of the Legislature, and swept every statewide office in the 2020 election cycle.

“I think really what it is, is trying to balance the three branches of government,” he said Wednesday. “Because right now, in my view, we’ve got the governor and the Legislature, and the Supreme Court, and they just think they’re above everybody and they’re not.”

Critics of the bills, including most Democratic lawmakers, see a transparent attempt by Republicans unhappy with recent court rulings to inject partisan influence into a nominally nonpartisan branch of government.

House Minority Leader Kim Abbott, D-Helena, described an “attack on independence on a coequal branch of government” in a press conference this week, and said Montanans, despite what the slew of judicial bills would suggest, like their courts.

“You saw incumbents get elected by wide margins in November despite a two-year attack on the judicial branch,” Abbott said, referring to justices Ingrid Gustafson and Jim Rice. “We’re gonna stand up for that branch of government, they’re going to stand up for themselves. Undermining that is not something that Montanans have shown support for.”

Reporter Arren Kimbel-Sannit can be reached at akimbel@montanafreepress.org. The Montana Free Press is a Helena-based nonprofit newsroom. To read the article as originally published, click here.