A Republican effort to make sweeping changes to Montana courts has suffered another blow, this time with a veto by Gov. Greg Gianforte.
Senate Bill 40, which would have required recorded and printed public records of judicial deliberations, was vetoed for being unconstitutional, Gianforte said in a letter to House and Senate leaders May 16.
“Throughout our nation’s history, internal communications between government officials have been considered privileged information. Under the U.S. Constitution, members of Congress can discuss and deliberate official actions with their staff in confidence. The president can discuss and deliberate official actions with agency employees under his direction and control. And Supreme Court justices can discuss and deliberate with each other as they issue official decisions,” Gianforte wrote. “The same is true of Montana’s Constitution.”
The Republican governor acknowledged the frustrations of GOP lawmakers who have seen several of their priority bills passed in recent legislative sessions ruled unconstitutional by the Montana Supreme Court following legal challenges. Gianforte alleged that “judicial activism” threatened constitutional order by infringing on lawmakers’ policymaking authority and his ability to execute the law.
But making deliberations public would “chill candor among justices,” Gianforte wrote, and “weaponize those discussions in future litigation.”
Sen. Greg Hertz, R-Polson, carried the bill for the Senate Select Committee on Judicial Oversight and Reform, which spent eight months in 2024 taking testimony, and eventually drafting 27 bills to limit judicial powers. Only a handful were passed into law in the session that ended last month. The big prize, bills to get judicial candidates to declare a political party, died despite being a priority for majority Republican legislative leadership and Gianforte.
“What we do have is a great foundation for moving forward,” Senate Majority Leader Tom McGillvray told the press at the end of the session. “I think that judicial reform is critical, continuously. It’s important for our judges to have accountability. It’s important for there to be transparency and what we did this session helps start that process.”
New state Supreme Court Chief Justice Cory Swanson in a February address warned against politicizing the judiciary, which caused legislators to bristle. House Speaker Brandon Ler, R-Savage, told Montana Free Press in early April that Swanson needed to remember that many of the voters who elected him in 2024 also wanted to limit judicial powers.
Bills becoming law from the GOP effort to reshape the courts include House Bill 39, by Rep. Tom Millett, R-Marion, which repeals a state law banning political parties from contributing to judicial campaigns. House Bill 39 was signed by Gianforte in March.
Senate Bill 30 concerns the “rule of necessity” which governs when a judge can still rule on a case despite a personal interest. The bill, by McGillvray, R-Billings, requires that the rule of necessity not be used if a less-conflicted judge is available. SB 30 has been signed into law by the governor.
Senate Bill 38, by Hertz, is specific to court orders calling for lawmakers to be polled on whether to override a veto. Under the law, if the vote isn’t overridden, the person who sought the court order cannot receive attorney’s fees. Gianforte signed the bill into law May 5.
Senate Bill 39, also by Hertz, sets terms for what attorney fees can be charged in civil cases and requires the charges to be reasonable. Gianforte signed the bill into law May 8.
Senate Bill 41, by Sen. Daniel Emrich, R-Great Falls, requires that substitute judges be assigned to cases randomly. Gianforte signed the bill into law May 5.
Senate Bill 45, by McGillvray, will create a judicial performance evaluation system the public can access to learn about how judges are reviewed. The intent of lawmakers was to have the information available to the public when judges are on the ballot. The bill was signed by the governor May 13.
Senate Bill 48, by Sen. Carl Glimm, R-Kila, removes a ban on citizens discussing complaints against judges before matter is settled by the Judicial Standards Commission. Gianforte signed the bill May 8.
This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.