By: Sen. Jason Ellsworth
This column could be considered an open letter to Montana judges and justices, as well as the various agencies and parties engaged in lawsuits over legislation from the 2023 and 2021 legislative sessions. It's also meant to inform Montanans about how ongoing litigation could impact future legislative sessions and, more fundamentally, their own ability to know and understand the current laws of our state.
I write today not to submit another critique of political biases and integrity within the judicial branch, which have been widely discussed the past couple of years. I'm writing as the President of the Montana Senate, in my capacity as a leader charged with ensuring the Legislature functions well for legislators of both parties and the public at large.
I'm becoming increasingly concerned that the very slow pace of ongoing litigation over laws passed in recent and future legislative sessions is going to create a tangled mess of problems.
By my staff's count, there have been 33 lawsuits over 27 different bills from the 2021 legislative session and 23 lawsuits over 20 bills from the 2023 session as of mid-December. Only eight of those 56 total lawsuits (14%) have been resolved to date.
The Legislature meets once every two years. If courts don't resolve a policy lawsuit within about two years, then the next session arrives and new policy "leapfrogs" any court decision. This can quickly devolve into a tangled mess.
Without court decisions before the next legislative session, lawmakers are left without clarity over how to write policy on a litigated topic. Montanans can quickly find ourselves in a situation with multiple pending (and potentially conflicting) laws on the same topic that are subject to different lawsuits and are at various stages of being in effect, temporarily blocked, or permanently overturned. It's enough to give lawyers and full-time politicos a headache trying to keep it all straight, and it's all but impossible for the general public and inexperienced citizen legislators to understand what the current law actually is. Mass confusion over the law is antithetical to our democratic rule of law system.
There are predictable and lazy retorts that will come from partisans about this conundrum. "Don't pass a new law on the same topic that's being litigated," or "quit passing unconstitutional laws," they'll say.
Regarding the first point, allowing the court system to hold up work on any given policy topic for a period of years would amount to an infringement on the Legislature's constitutional lawmaking role. It would also prevent legislators from properly representing their constituents' wishes, especially given that the Legislature experiences 20%-40% turnover every session.
Regarding the second point, it's often not possible to know definitively whether a complicated or controversial law is constitutional or not ahead of time. Determining so is a role of the judicial branch, and they can only act once a lawsuit is filed. Besides, sometimes people with similar political beliefs can't even agree on what's constitutional until a court issues a ruling. Liberal attorneys are currently making arguments in a lawsuit over Public Service Commission districts that are totally at odds with how Democrats drew legislative districts. Who's right—Democrats today, or Democrats a few months ago? The courts will let them know.
I don't have an immediate solution to this timing problem of legislative sessions leapfrogging court decisions. Our judicial system moves slowly in almost all types of cases, not just ones over policy. Sometimes that slowness is egregious to the point of a dereliction of duty on the part of judges, such as the parental notification of abortion law that voters themselves passed via ballot initiative over a decade ago and the courts have still not resolved. Other times, a still-slow yet more reasonable pace may be the result of the maneuvering of different parties in the case, or a particular judge or court being overburdened with too many cases.
I would argue that it's more important for courts to do things right than to do them fast. I'm absolutely not arguing for a faster pace at the expense of thorough legal analysis or the parties involved being allowed to fully exercise all of the procedural rights available to them. Yet, the problem of legislative sessions leapfrogging court decisions and creating a tangled mess of unclear laws is a serious one that's going to get worse if current litigation trends continue and Montana's courts don't pick up the pace.
If you have any creative ideas about how we can speed up court decisions on important policy matters without negatively impacting the courts' work product or the rights of everyone involved, I'd love to hear them. And to Montana's courts: we're only one year out from the next legislative session. Please resolve as many of the current lawsuits as you can in a fair and thorough manner before then.
Jason Ellsworth is the President of the Montana Senate
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