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Legislative Notes

Judicial oversight committee is warranted

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Last month the President of the Montana Senate established a select committee on Judicial Oversight and Reform. We were appointed to that committee along with Democrat and Republican legislators and members of the public. Before our first meeting, partisan attacks were leveled at the President and the committee. We have no interest in engaging tit for tat in partisan vitriol, but we do wish to articulate a logical and reasonable case for the importance of the committee.

Article 3 of the Montana constitution defines the requirement for balanced government: “The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others.”

This power balance is by design and essential to securing the blessing of life, liberty, and happiness. When one branch of government, or level of government usurps power from the other, our republic begins to erode. It is then the responsibility of the other branches to push back on the abuse of power. 

That is why this committee was formed. We believe that the court has encroached on the prerogatives of the legislative branch, started making law and left their role of applying the law and the constitution to the facts and circumstances of the cases in front of them. 

In the first 58 years of our republic, the United States Supreme Court struck down one federal law. Ironically, the court struck down a federal law which expanded the court’s powers (Marbury V Madison). In the last 50 years SCOTUS struck down 118 federal laws. In the last two years 53 bills, all Republican, have been enjoined, struck down or are currently being reviewed by Montana courts. This trend is alarming. Therefore, this committee will review the following:

First we will review our own procedures. All legislative bills are evaluated by non-partisan staff for constitutional soundness. If there are areas where we can do better we will adjust our procedures. Second, we will review court decisions and standards. There are rule of law standards by which all courts should function. Is the case justiciable? Do the parties have standing? Is the court deciding a political question that should be left to the legislature? Are they ruling according to established law or making law? 

It is imperative in a constitutional republic for the three branches of government to respect their roles. Therefore, the public will be well served by processes of self-examination which will educate the courts, the legislature and the public on the roles and responsibilities of each branch under Article III Section 1 of the Montana Constitution.

Legislators understand we need 51 votes in the House, 26 in the Senate and 1 signature from the Governor to enact legislation. Over the last two years that formula, established from the inception of our Constitution, has changed to 51, 26, and 2.  In other words, we need a majority in the House and Senate, and a signature from the Governor but now we must also overcome defacto vetoes by the courts. Montanans overwhelming elected Republican majorities to pass bills the voters wanted. To have bills routinely overturned by courts, who have arguably encroached into the lawmaking space is worthy of examination. It is time and money well spent. 

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