Democrats respond to Montana Republicans’ attacks on judicial independence

The ruling Republican agenda in Montana, which includes measures to privatize schools, keep reproductive rights off of the November ballot, and limit voting rights, has run aground on a series of court decisions. Republican lawmakers reacted in April by creating an ad hoc legislative committee to “rein in” what Republicans see as systematic judicial overreach.

“Simply put, Montana’s courts are out of control,” Senate President Jason Ellsworth said in a statement announcing the creation of the committee. “They’re seizing power that doesn’t belong to them and undermining our constitutional system of checks and balances.” 

Democrats, in the minority in the Legislature, reacted immediately to Ellsworth’s move by walking away. They were offered slots on his task force but declined and issued statements: “Instead of attacking another branch of government, we should be focusing on the real problems facing Montana families — skyrocketing property taxes, a housing crisis, and the biggest loss of health care our state has ever seen,” said Senate Minority Leader Pat Flowers of Belgrade. “As things stand now, we cannot participate in this process.”

That does not mean, however, that Democrats are ignoring the attacks on judicial independence, but the counterattack is indirect. The point person on the other side of the battle is embedded in a gubernatorial campaign. Ryan Busse, the Democrat trying to unseat incumbent Republican Greg Gianforte, chose as his running mate Raph Graybill. The campaign’s website leads with this: “Since Gianforte became governor, Raph has blocked 14 different unconstitutional laws that invade Montanans’ constitutional rights.”

Graybill’s grandfather chaired the state’s 1972 Constitutional Convention that produced the current foundation of the state’s laws.

The younger Graybill, who attended Yale Law School and was a Rhodes scholar, is also an attorney for Montanans Securing Reproductive Rights, the ad hoc coalition pressing for a constitutional initiative on the November ballot ensuring abortion rights. Backers went into the field this month seeking enough signatures on petitions to place that measure on the ballot, but only after three rounds of Supreme Court rulings removed a series of obstacles raised by Attorney General Austin Knudsen and Secretary of State Christi Jacobsen, both Republicans and both opposed to abortion.

Ellsworth’s action rests on an allegation of “judicial overreach,” but Graybill said in an interview that if there was overreach in the abortion case, it was Knudsen’s actions, which attempted to saddle the initiative with “ludicrous” ballot language loaded with anti-abortion talking points.

“It was a bad-faith effort to try to stop it that delayed us for several months,” he said. “He wrote this ludicrous description of the initiative that didn’t even describe what the initiative did. It just said, Here are all these second-order effects, all of which are hysterical and fictional.”

Graybill cited previous examples of attorneys general — Steve Bullock, a Democrat, and Tim Fox, a Republican — who brought to the office a commitment to the law as opposed to personal ideology.

“As [attorney general] you’re going to have to step away from your personal belief for a second and understand that you are now the AG, and you have some responsibilities to the people. That’s clearly what’s being violated here, that sense of duty to the law itself,” he said.

Graybill argues that the behavior in this goes beyond the abortion issues and strikes at the foundation of democracy in Montana. Initiatives are how citizens rein in government, and Knudsen and Jacobsen were attempting to seize those reins by stifling a ballot initiative. 

“We the people give any government a certain measure of delegated power. At the core of our Constitution is that insight that the people have political power, and we protect ourselves against the government through the Constitution,” he said. “I see in the Legislature a diametrically opposed, constitutionally incorrect view that one branch does whatever it wants no matter what, and everything else is an inconvenience.”

Ellsworth and others argue that the radical departure in Montana now is the “out-of-control” judiciary, but the judiciary in the state hasn’t changed all that much. The state’s Constitution provides for independent courts, with judges — including Supreme Court justices — selected by direct popular ballot. Despite the wording of Ellsworth’s complaint, the judicial branch is not answerable to the Legislature, only directly to the voters. The lawmakers are not holding the reins.

“It’s false and unfair to say there’s some sort of [judicial] cabal focused on a particular set of ideological outcomes,” Graybill said. “In my experience in the Montana court system —- where I have won cases and lost many cases — our judicial branch has integrity. It values the rule of law. It values certainty and legal precedent. It has been under tremendous strain and stress from these political attacks. But that is what they are: political attacks.”

What has changed in Montana is that two of the three branches are controlled by Republicans of a particular stripe, committed to sweeping changes in state culture. Those include attacks on reproductive rights, privatization of public schools, and limitations on voting rights, the independence of higher education, government transparency, and the independence of local government. Fundamental changes such as these are indeed going to run up against the courts.