The state of Montana has spent at least $ 119,000 in the past nine months defending itself against legal challenges to laws passed in the 2021 legislative session, according to state government reports.
But this is likely an underestimate of the actual amount of public funds used to defend against lawsuits to overturn new laws, ranging from restrictions on abortion to limits on how and where. students can engage in political activities.
All of the laws facing court challenges were introduced by Republicans in the GOP-dominated state legislature, and their final passage fell largely along party lines. Over the past 16 years, similar proposals from both houses have encountered the veto power of Democratic governors. But with the election in 2020 of Republican Governor Greg Gianforte, many of these long-awaited GOP priorities were enacted this spring.
The legal bills accumulated by the state are a natural result of this dynamic, said Kyle Schmauch, spokesman for the state Senate Republican caucus. The 2021 legislature passed 707 bills that became law, which he said was the highest since at least 2003.
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“This includes the main economic priorities of Republican lawmakers affecting the day-to-day lives of Montanians, including tax reform, tax breaks, regulatory reform, health care reform and education reform,” Schmauch wrote. in a press release. “None of these priorities are in dispute. Republican lawmakers are proud that the 2021 session was a historic success for Montanais. “
For Democrats, who have repeatedly argued in committee hearings and in House and Senate prosecution that many of the Republicans’ most controversial proposals would bog the state in lengthy court challenges, the amount of legislation in dispute demonstrates fiscal irresponsibility.
Rep. Ed Stafman, a Democrat from Bozeman, was a member of the House Judiciary Committee which debated many bills currently stalled in court. One bill he warned against at the time was House Bill 102, which legalized the carrying of firearms on college campuses without a license. Stafman then said that the power to establish such policies is explicitly reserved to the Board of Regents of the state’s university system.
This bill “was unconstitutional from the start, and if I remember correctly, (Republicans) were warned of this by the Legislative Services at the time, and basically didn’t care because it was, for some people across the aisle, it was more important to feed their base.
The bulk of the estimated legal bills for the state, $ 91,500, come from a note prepared by the Montana Legislative Audit Division after a state cost analysis was requested by Representative Jessica Karjala, a Democrat from Billings. The memo was first reported by the Daily Montanan. It only includes funds spent by the Department of Justice and does not include five lawsuits challenging recent legislation.
Legislative Audit Division director Angus Maciver, who prepared the memo, said in an email that the division’s fee request to the DOJ used a list of cases compiled by the Legislative Council, a committee of legislators that oversees the branch. Karjala is the only such request the division has received for estimated legal fees, he said.
The estimate is based on 1,607 reported hours spent by Justice Department lawyers working on 11 cases related to legislation enacted earlier this year. The lawyers’ hourly rate for most of that time was $ 57, according to the memo. It also included additional estimates for three cases not directly related to new laws.
Along with the legislative note, a budget update prepared earlier this month indicated that the Secretary of State’s office spent $ 37,000 on a $ 100,000 appropriation added to its budget to defend against the challenges. expected from the new electoral laws.
Secretary of State Christi Jacobsen has been named as a defendant in six court cases challenging new laws that ended voter registration on election day, tightened voter ID restrictions, restricted campus campaigns academics, limited efforts to collect ballots and proposed a voter referendum to change the way state Supreme Court justices are elected.
Three of those cases, costing a combined $ 11,628, were included in the Department of Justice’s legal fees. It is not clear whether any portion of the $ 37,000 spent by the Secretary of State’s office was returned to the Department of Justice and therefore included in the rating estimate. Jacobsen hired outside attorneys to help defend election laws, in addition to legal staff in his office and DOJ attorneys.
Jacobsen’s office did not respond to a request for information, and the legislative staff member who prepared the financial report did not respond to an email asking for clarification. Maciver, of the Legislative Audit, said he was unsure whether DOJ’s costs included dollar amounts reimbursed by other agencies.
A total of 16 cases have been filed this year in response to the 2021 legislation, most of which name Gianforte, Jacobsen or Attorney General Austin Knudsen as defendants.
The state’s Department of Labor has so far spent $ 2,200 to defend against two court challenges to Montana’s new vaccine discrimination law that bans vaccination mandates by employers, said Thursday a spokeswoman. None of these cases were included in the legislative audit note.
The Department of Public Health and Social Services and the Political Practices Commissioner have also been named in lawsuits. Emails to those agencies asking if they had accrued additional legal fees in the cases were not returned on Thursday.
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Of the cases identified in the DOJ’s estimate, the costliest to date has been the Board of Regents’ case challenging HB 102, the bill to allow the carrying of firearms on college campuses. A state district court judge sided with the board in a November decision, but the DOJ has since appealed the decision to the Montana Supreme Court. The ministry’s legal fees so far exceed $ 17,500.
A case filed by Planned Parenthood and several other plaintiffs, also representing more than $ 17,000 in defense legal costs, challenges four new laws that restrict access to abortion in the state. Three were stayed by a judge in a state district court, although that injunction was also appealed by the Justice Department to the state Supreme Court. Lawyers for the Department of Justice also billed more than $ 15,000 to defend a law that makes it harder for transgender people in Montana to change their birth certificates to update their gender.
The only case that has so far been tried by the courts is a lawsuit that sought to overturn a law that dissolved the state’s Judicial Appointments Commission in favor of granting the governor direct appointing power. when judicial vacations arise. The law was upheld by the state’s Supreme Court after the DOJ spent more than $ 10,000 to defend it.
A number of bills currently being challenged in the courts were accompanied by legal notes after their introduction, which the state legislative services ruling produces if legal staff determine that the language of the bill could create legal problems. . A rule change in the 2019 session made by a Republican blocked the publication of legal notes as well as bills on online bill tracking from the Legislature; they are only posted at the request of the sponsor of the bill.
Stafman, the Democratic lawmaker, argued that this just shows that Republicans across the state are prioritizing hot issues over the Montana Constitution.
“Time and time again, legislative jurists have looked at these bills and warned that they could very well be unconstitutional,” he said. Referring to GOP lawmakers, he added, “It’s not that they didn’t know, it’s just that they didn’t care.”
Speaking on behalf of Republicans in the Legislature, Schmauch rejected this logic.
“A legal review note does NOT mean that a bill is unconstitutional; legal review notes are not even legal opinions, “he wrote, highlighting the language attached to each legal note indicating that it is” not a formal legal opinion “and that all laws are presumed to be constitutional until proven otherwise in court.
Schmauch added: “The vast majority of litigation comes from the same small group of liberal supporters who are trying to advance their unpopular political goals in court. “