Bar’s lobbying efforts in ’23 legislative session
See related: Expenses and refund provisions for 2023 bar legislative session lobbying
The 2023 Montana Legislature considered a number of bills affecting the administration of justice in Montana, and the State Bar of Montana was forced into an active role, providing testimony on a number of measures.
Pursuant to Board Policy 3-102, as well as the State Bar Bylaws, the bar may take positions on various legislative matters including: “A. Issues relating to the regulation and discipline of attorneys; B. Issues relating to the functioning of the court, and to judicial efficiency and efficacy; C. Issues relating to the availability of legal services; D. Issues relating to attorney trust accounts; E. Issues relating to the education, ethics, integrity and regulation of the legal profession; F. Issues relating to law reform, adoption of uniform laws and statutory improvement.”
On matters relating to the functioning of Montana’s courts, specifically matters involving funding, the State Bar monitored HB 2 (passed and signed by Speaker), which included the general judicial system budget and supported SB 44 (tabled in committee), which would have provided a new civil justice improvement grant program.
The State Bar supported the Governor’s nominees to the Judicial Standards Commission (SR 6), as well as the confirmation of district court judges (SR 7 and SR 8) nominated by the Governor. The State Bar also was a proponent of SJ3 (filed with Secretary of State), a joint resolution on the Justice Counts Initiative that was a product of the last Law and Justice Interim Committee.
The State Bar also supported SB 509 (missed deadline for transmittal), which would have removed the Montana attorney license tax and supported HB 709 (Chapter number assigned) which creates a public facing district judge performance indicator display.
The bar opposed several bills that took aim at the administration and functioning of the courts. Those included SB 311 (missed deadline for transmittal), which would have reduced the size of the Montana Supreme Court, and SB 230 (missed deadline for transmittal), which would have moved the Office of the Court Administrator under the Clerk of the Montana Supreme Court, a partisan, elected position.
The bar also opposed a measure to place term limits on judges SB562 (missed deadline for transmittal), and HB 326, which removed the attorney and judicial members of the Judicial Standards Commission appointed by the supreme Court, replacing them with those nominated by the legislative and executive branch.
Other measures sought to legislatively rewrite judicial recusal standards based upon campaign contributions. The bar has opposed those in past sessions and did so again as an unconstitutional intrusion into the province of the judiciary which writes judicial recusal rules, as well as because of the effect several of the bills had on attorney participation in judicial elections. HB 436 (died in process), HB 772 (missed deadline for transmittal), SB 355 (died in standing committee), SB 201 (chapter number assigned), the latter of which became law. SB 201 established an aggregate limit for judicial campaign contributions in the past six years by lawyers or their firms and allows for disqualification if it is exceeded. It was effective on passage and approval but applies to contributions made on or after the effective date of the act.
As in past sessions, a number of bills sought either to elect judges on a partisan basis or allow judges to announce partisan endorsements. The organized bar in Montana has long opposed partisan judicial elections and their potential impact on the administration of justice. In fact, the Montana Bar Association was instrumental in the enactment of the Nonpartisan Judicial Act in 1935. The current Montana Code of Judicial Conduct forbids judges from announcing partisan endorsements. The bills this session included HB 464 (missed deadline for transmittal), HB 595 (missed deadline for transmittal), SB 200 (missed deadline for transmittal), SB 302 (missed deadline for transmittal), and SB 395 (missed deadline for transmittal). None were passed into law.
Other bills sought to change the constitutional method of selection of judges in Montana. SB 372 (missed deadline for referendum proposal transmittal) was a proposed constitutional amendment that would have had the Montana House of Representatives select Montana Supreme Court Justices, as well as state district court judges, subject to confirmation by the Montana Senate. That proposal died in standing committee.
The bar opposed a second proposed constitutional amendment, HB 915 (died in process), to eliminate Montana Supreme Court elections and have justices selected by the governor subject to senate confirmation, in particular because of the absence of a judicial nominating commission and/or judicial retention elections in the proposal, such as in the so-called “Missouri Plan” selection method. Only one state selects judges in the manner proposed, which gave the State Bar pause.
The bar opposed several other bills, such as resolutions that took aim at Marbury v. Madison and called Montana Supreme Court opinions “advisory only,” SJ 11 (missed deadline for transmittal) and SJ 15 (died in process); HB 933 (missed deadline for appropriation bill transmittal) which sought to “adopt the original 13th amendment,” and among other things prohibited the use of the term “esquire”; and HB 589 (missed deadline for transmittal), which would have allowed citizens to petition for a grand jury that was mandatory if a certain percentage of electors signed the petition, thereby bypassing any judicial discretion.
Certain other bills relating to court reporters, HB 654 (died in process), and one changing evidentiary presumptions, HB 815 (missed deadline for transmittal), also drew opposition. The bar also opposed HB 410 (Chapter number assigned) which established a new statutory time limit for all service of process, two years, creating a potential conflict with the existing three-year time limit in Rule 4 of the Montana Rules of Civil Procedure promulgated by the Montana Supreme Court.
Finally, several other bills were aimed directly at the Montana Rules of Professional Conduct, and in certain cases, the State Bar itself and the Montana Supreme Court’s authority to regulate the practice and profession of law.
The bar sought modification of HB 317 (chapter number assigned), which created a Montana Indian Child Welfare Act, due to certain provisions of the bill as drafted that created constitutional concerns regarding who may practice in the courts of Montana. Those provisions were removed, and the bar took no other position on the measure.
HB 965 (missed deadline for referendum proposal transmittal) was a proposed constitutional amendment that would have removed the Montana Supreme Court’s constitutional authority to regulate admission to the bar and the conduct of attorneys under Article VII, Section 2 of the Montana Constitution. The State Bar opposed the bill.
SB 440 (missed deadline for transmittal) sought to legislatively rewrite Rule 1.18 of the Montana Rules of Professional Conduct to require that attorneys pay interest to clients on all funds in their IOLTA accounts. The legislature does not write the Montana Rules of Professional Conduct and the State Bar opposed the bill.
SB 438 (missed deadline for transmittal) sought to place the State Bar of Montana under the audit authority of the legislative branch of government and the legislative auditor. The State Bar opposed the bill.
SJ 31 (filed with the secretary of state) is a bill to study the State Bar of Montana, which will take place during the interim through the Law and Justice Interim Committee. The State Bar did not support or oppose the study resolution.
The State Bar’s running “preference list” is available on the State Bar’s website www.montanabar.org.