Guest Column

Montana Courts are Out of Control 

It’s time for the judiciary to start following the Montana Constitution and respecting the separation of powers

By Keith Regier

It seems like every day I open the newspaper and read a new decision issued by a Montana court. I’m not a lawyer, but it’s becoming apparent to me that our courts are increasingly out of control. 

There have been many questionable decisions issued by our courts in recent years. One decision, however — Forward Montana v. State of Montana — is so bad that even two of the seven Montana Supreme Court justices noted that the Court had veered from the constitution. 

There are three separate branches in our system of government: the legislative, the executive, and the judicial. Each branch exercises its own separate power and responsibilities. 

This separation of powers is the cornerstone of our constitutional system. Its purpose is to ensure no individual or institution becomes too powerful. In Federalist No. 47, James Madison wrote that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” 

In the Forward Montana decision, the Montana Supreme Court trampled all over this cornerstone of constitutional government. In the opinion, the Court gave the judiciary the authority to determine whether the Legislature followed appropriate legislative procedure and norms. This unprecedented opinion may be the first of its kind in the history of our country. 

The Montana Supreme Court’s ruling is a gross invasion of the separation of powers and nothing more than an unfettered attack on a co-equal branch of government. The text of the Montana Constitution is clear—the Legislature, not the courts, has the power to adopt rules governing the operation of the legislative branch. Unless the Montana Constitution specifies a certain procedure or places a limitation on the Legislature, the judiciary has no authority to direct how the lawmaking process occurs. 

The Forward Montana decision is not just an error, it’s an example of a court unmoored and unrestrained from the Constitution of the State of Montana. The five justices who produced this decision together have over 150 years of legal experience, and yet, for some reason they think they have authority to unconstitutionally micromanage the operations of a co-equal branch of government. 

The Montana Supreme Court is not a super Legislature. It is a branch of government with specific powers and responsibilities. Like any branch, its powers are limited. The Montana Constitution grants the judiciary the power to resolve disputes and determine questions of constitutional interpretation. The Montana Constitution reserves to the Legislature the power to write its own rules and interpret them. 

The members of the Montana Supreme Court are judges, not kings. It’s time for the judiciary to start following the Montana Constitution and respecting the separation of powers. 

Sen. Keith Regier, R-Kalispell, is the chair of the Senate Judiciary Committee.