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February 2, 2024

 The question of whether plaintiffs in a successful lawsuit challenging the constitutionality of a 2021 election law should receive attorney fees from the state cleaved the Montana Supreme Court this week, with Justice Jim Rice (a former Republican lawmaker) and Justice Dirk Sandefur (a frequent target of Republican ire against the court) uniting in a strongly worded dissent against the court’s five-member majority.

“…the Court is using the Doctrine as a sword to punish the Legislature, to deter it from ‘wrongdoing,’ based in part on what I view as the Court’s revulsion at legislative ‘sausage-making.’ This is an inappropriate judicial consideration,” Rice wrote.

The court’s ruling signals an increased willingness to award attorney fees to victorious parties in future constitutional litigation in state court, something that Montana judges have generally avoided. The beneficiaries of Wednesday’s ruling — attorneys Constance Van Kley and Rylee Sommers-Flanagan of Upper Seven Law and Raph Graybill of Graybill Law Firm, all lawyers who regularly bring constitutional lawsuits against the state or its officers — lauded the decision. They said the ruling will encourage the state, now faced with the possibility of spending the opposition’s taxpayer dollars on attorney fees, to be more responsible in the defense of its laws and practices.

“The government should defend the Constitution, and when it doesn’t, the government should pay,” Graybill told Capitolized. 

The underlying legal question in the lawsuit brought by Forward Montana has long been settled. 

Senate Bill 319 began as a minor tweak to campaign finance law but was amended wholesale in the final days of the 2021 session in a special committee meeting that was closed to the public. The new version of the bill restricted campaign activities in some settings, including college campuses, a distant departure from the proposal’s original text. 

The bill was signed into law, but in June of 2021, advocacy group Forward Montana and others challenged the law under the Montana Constitution’s single-subject provision. In 2022, a district court ruled with the plaintiffs and permanently enjoined enactment of the last-minute provisions. The state did not appeal that ruling. 

The plaintiffs then moved for the awarding of attorney fees. Attorneys for the state argued that doing so would depart from the state’s practice under the American Rule, a legal principle that holds each party in a case responsible for their own attorney fees. In a previous state Supreme Court ruling, the justices determined that exceptions to that rule would be few — for example, if the lawsuit in question is not “garden variety” constitutional litigation, if the plaintiffs are bringing a case that vindicates the public’s constitutional rights, or if the state’s defense is in bad faith or frivolous. 

In this case, Chief Justice Mike McGrath and the rest of the majority determined that the plaintiffs met these thresholds, sending the lawsuit back to the district court to determine the sum of fees. But in addition to constitutional considerations, the majority also based its decision on its interpretation of legislative rules and procedures. 

In his dissenting opinion, Rice wrote that the court was departing from precedent and elbowing into the Legislature’s domain to discipline lawmakers who acted out of order. And by the standards of constitutional litigation, he added, this case was fairly straightforward — “garden variety” — given the lack of appeal to the Supreme Court. 

In a statement and interview with Capitolized Thursday, Senate Majority Leader Steve Fitzpatrick, R-Great Falls, echoed some of those same arguments, adding that even if the court was supposed to consider internal legislative rules, it was doing so incorrectly. 

Interpreting the Constitution is one thing, he said. “That’s their prerogative. But to turn around and accuse us of acting in bad faith, when they don’t even understand our rules, it’s wrong.” 

—Arren Kimbel-Sannit 

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Money Talks

The year-end 2023 campaign finance filings from Democratic U.S. Sen. Jon Tester, confirmed Republican challenger Tim Sheehy and all-but-confirmed Republican challenger Matt Rosendale will likely fit the preconceptions of most political observers in the state. 

Tester, a third-term senator known for his ability to raise money and win close elections in an otherwise Republican state, raised about $5.5 million in the last quarter of 2023, 85% of which came from individuals. He finished the period with more than $11 million on hand.

Tim Sheehy, a multi-millionaire business owner from Bozeman, is the pick of national Republicans to take on Tester, and thus has the backing of the National Republican Senatorial Committee. He raised about $2.5 million in the same period, 60% of which came from individuals. He has about $1.3 million on hand. 

Matt Rosendale is a current Montana Congressman, a hardline Republican and a vocal member of the House Freedom Caucus. He hasn’t announced a run for Senate, but all signs — including his own statements (many of which are critical of Sheehy) the statements of his colleagues, and reams of news reporting — point to him doing so soon. 

Rosendale’s campaign — at this stage, technically a House re-election campaign — raised $98,073 in 2023’s fourth quarter, the vast majority of which came from individual donations. He ended the period with $1,672,256 on hand. 

Part of the reason GOP powers-that-be chose Sheehy to take on Tester is the wealthy Sheehy’s ability to self-fund and Rosendale’s history of poor fundraising, including in 2018, when he mounted an unsuccessful challenge to Tester. 

Rosendale and his allies are cognizant of this. 

“It’s not always about dollars. It is about ideas,” Rosendale told Capitolized and another reporter at an event last weekend with fellow conservative hardliner Matt Gaetz, a Republican congressman from Florida. “And people around this state and around this country are starving for someone to listen to them, and to actually serve the way that they campaign.”

Still, Gaetz implored the crowd for donations. 

“If he runs for the Senate, he’s going to get out-spent,” Gaetz said. “I know that. But if you guys can put some resources into his congressional campaign now, we can build up a war chest that is sufficient just to tell our story, just to tell the truth. I always say, money is the mother’s milk of politics and Rosendale is thirsty.”

—Arren Kimbel-Sannit

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Fighting Words

Health care providers, patient advocates and state lawmakers continue to hammer the administration of Gov. Greg Gianforte for removing more than 120,000 people from state Medicaid programs between April and November of last year, including many residents who say they remain eligible for coverage. 

Every state is dealing with the post-pandemic redetermination process, but Montana has one of the highest disenrollment rates in the country, according to a KFF analysis, and 77% of the people who have lost coverage were kicked off because of paperwork issues or lack of a timely response, not because they were deemed ineligible.

In a Tuesday letter accompanying a public records request, House Minority Leader Kim Abbott, D-Helena, amplified a monthslong frustration among members of her party and others regarding the state health department’s lack of transparency about those redeterminations. The state’s public-facing dashboard tracking monthly disenrollments does not show the age, race, gender or county of the Montanans who have lost coverage, or the type of Medicaid program from which they were cut. 

“Lawmakers like myself and the Montanans we represent do not know how various communities have been affected by this process,” Abbott wrote. “We do not know whether all communities are represented proportionally in the tens of thousands of people your Department has stripped of health care. We cannot know if some of the folks who lost their coverage were aged-out foster kids who were forced to go through a red tape-laden process from which they are federally exempt, or parents who responded on time, only to find that your Department’s backlog cost them coverage.” 

Abbott’s request includes the same list of questions presented to the department by the Children, Families, Health, and Human Services Interim Committee in November. At the committee’s most recent meeting in January, health department director Charlie Brereton described the request as “very large” and said he does not have the staff or resources to handle it, but is willing to work with the committee to narrow the request.

The House minority leader slammed that response in her missive.

“You refused to undertake this redetermination process in a responsible way that would minimize coverage losses. Now you refuse to be held accountable for the damage your Department has done. Your attempt to excuse this behavior is unacceptable. If any private business ran this way they would certainly be looking for a new CEO,” she wrote.

A spokesperson for the state health department declined to comment on Abbott’s letter Thursday.

— Mara Silvers

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Racicot Takes on Trump

“Should Mr. Trump be permitted to stand again for election to the presidency, despite his past actions, neither Section 3 of the Fourteenth Amendment nor the oaths that undergird the bedrock premise that public officials serve to advance the welfare of the people and our common national project will ever be the same. They will have been rendered meaningless in their legal force and stripped of their moral authority and power.”

—Former Montana Gov. Marc Racicot, a Republican who has since emerged as a vocal critic of his party, writing with two other former GOP governors from decades past in an amicus brief arguing to keep former President Donald Trump off Colorado ballots this year. 

In December, the Colorado Supreme Court disqualified Trump from the presidential ballot in that state, ruling that the former president’s role in inciting the Jan. 6 U.S. Capitol riots violates the Fourteenth Amendment, which says, in part, that people who “engaged in insurrection” cannot hold federal office. 

The case quickly went to the U.S. Supreme Court. 

In that venue, other Montana Republicans have filed or signed on to briefs in Trump’s defense, including U.S. Sen. Steve Daines, who chairs the National Republican Senatorial Committee, and Montana Attorney General Austin Knudsen.

“The right of all citizens to participate in free and fair elections and to vote for the candidate of their choice is the Constitution’s bedrock guarantee of American democracy,” the NRSC brief reads. “The Colorado Supreme Court’s decision barring President Trump from the Republican Party’s primary election ballot breaches that guarantee and, if left standing, threatens to thwart the democratic process and the will of the American people in 2024 and beyond.”

Racicot, who endorsed Joe Biden in 2020, was already very much on the outs with the Montana GOP. Last February, party officials voted for a resolution formally rebuking the man who was once the state’s top Republican. 

“It really is a nonpartisan question,” Racicot told Capitolized Thursday, noting that Democrats have already weighed in on the issue and saying it’s  important for Republicans to do the same. “As a consequence, if we want to be engaged in providing some leadership on the discussion, we as a matter of conscience have the belief that it’s an incredibly serious matter. If you abrogate the Constitution one day, it starts to fall apart the next.”

— Arren Kimbel-Sannit

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On Background

Montana Supreme Court rules plaintiffs in election litigation can recover attorney fees: If you’re a Capitolized reader, the Montana Supreme Court’s recent attorney fees ruling has all your favorite stuff: judicial politics, dissenting opinions, references to important points in Montana history and silly-sounding legal principles. 

‘It’s reckless’: Montana Medicaid revamp kicks off most at-risk, forces debt on providers: Victoria Eavis, with Lee newspapers’ Montana State News Bureau, documented the human cost of Medicaid disenrollment in a piece this week. 

With Florida Congressman Matt Gaetz in tow, Matt Rosendale inches toward a run for Senate: As MTFP wrote earlier this week, the gap between expectation and reality grows ever narrower as Matt Rosendale gears up for a Senate bid. 

The post Making Government Pay appeared first on Montana Free Press.