Op-ed: Montana Supreme Court is Wrong on Legislative Rules

As a practicing lawyer, I am often reluctant to criticize decisions made by a court.  However, last week, the Montana Supreme Court rendered a decision involving legislative rules which is absolutely stunning.

One of the basic principles of our system of government is the separation of powers.  Under our constitution, there are three separate and equal branches, each with their own duties and responsibilities.  

As a fundamental principle, each branch is charged with running and managing its own affairs.  This principle is enshrined into the Montana Constitution in Article V, Section 10.  According to that provision, each house of the Legislature shall choose its officers and make rules for its proceedings.

In a recent decision, the Montana Supreme Court decided to eviscerate the Legislature's power to make rules and manage its own affairs.  Now, as part of its analysis, the Supreme Court examines things such as the length of a meeting or the timing of a vote.  If the Legislature acts in a way the Supreme Court feels is contrary to some legislative "norm," the Supreme Court has granted itself the power to punish the Legislature.  

Not only has the Supreme Court decided to invade the province of the Legislature, the Supreme Court has taken upon itself to interpret legislative rules and in doing so it has interpreted them incorrectly.  

In its decision, the Supreme Court accused the Legislature of acting in "bad faith" by holding a free conference committee instead of regular conference committee.  However, there is a problem with this conclusion – the legislative rules do not mandate such a procedure.  

Moreover, the Montana Supreme Court has accused the Legislature of violating rules by using text from a failed bill.  Again, there is nothing in legislative rules which prohibits this practice.

The process the Supreme Court called "bad faith" is the same process that saved the state employee pay plan in 2017.  In that session, I amended text from the failed pay plan into Senate Bill 294. No one accused me of acting in "bad faith" when I made sure state employees, including employees of the judicial branch, got paid in 2017.

In each legislative session, bills move through different processes and procedures.  There have been many pieces of legislation, many of them significant, which have passed using procedures which deviated from legislative "norms."  Those bills include Medicaid expansion, the dark money campaign finance reforms, and the CSKT water compact.  No court has ever accused the Legislature of acting in bad faith when it passed these bills.

While the Supreme Court takes the Legislature to task for violating "legislative norms", the ironic fact is the Court disregarded its own judicial precedents and norms.  According to Montana Supreme Court case law, issues should not be raised for a first time on appeal, nor should the Court do research for the parties.  Notwithstanding these clear judicial "norms", the Montana Supreme Court did just that - it wrote about an issue no party briefed or argued in its submissions.

It is the prerogative of the legislative branch to establish rules for the operation of the Legislature.  So long as the procedure established by the legislative branch complies with the terms of the Montana Constitution, the judicial branch has no business dictating the operating procedures of the Legislature.