State agencies have spent hundreds of thousands of dollars defending laws passed by the 2021 Legislature in court. Gov. Greg Gianforte wants an additional $2.6 million to bolster the Montana Department of Justice’s legal defense.
The request is for $1.3 million dollars in new funding for the department’s legal services division each year in 2024 and 2025. One million would go specifically to litigation funding, including trial costs and attorney fees, while the rest would pay for three new civil attorneys.
The request marks a 35% increase in the budget for the justice department’s legal services division from the previous two years and comes as courts continue to litigate dozens of laws passed by the 2021 Legislature.
Twenty-four laws passed by Republicans during the previous Legislative Session landed in court, according to a tracking tool produced by the Montana Free Press. Many of those cases, covering topics from a ban on vaccine mandates to state election procedures, are still unresolved and on appeal to the Montana Supreme Court.
Gov. Gianforte’s budget notes that the number of constitutional challenges to state laws has “increased significantly” since 2021. The governor’s budget director, Ryan Osmundson, told MTPR that the Department of Justice asked for the boost to its litigation coffers. A spokesperson for the DOJ declined a phone interview to explain the request and referred MTPR to the Governor’s budget.
University of Montana law professor Craig Cowie says that the line item could indicate the governor and the Department of Justice forecast another rise in constitutional challenges following the current legislative session.
“My instinct, although I can’t speak for the executive, is that, in asking it, that’s their best prediction of what they think they’ll need to cover challenges that are likely to come out of this session,” Cowie says.
The funding request comes as the state’s costs for defending laws continue to mount.
An October 2022 memo obtained by MTPR from the Legislative Audit Division indicates that the Department of Justice had spent nearly $200,000 defending more than a dozen cases relating to the laws and conduct of the Legislature. The Department of Justice sent MTPR a report indicating that it spent about half that amount from July 2021 to 2022.
In addition, the Helena Independent Record first reported last year that the Secretary of State’s office had spent more than $1.2 million defending laws seeking to add new requirements for voters.
Republican and Democratic leadership in the Legislature are split on the proposed increase to the state’s litigation fund.
Senate Minority Leader, Pat Flowers of Belgrade, says that lawmakers shouldn’t pass laws they know are unconstitutional. He noted that the Legislature’s Legal Services Division is charged with notifying lawmakers of potentially unconstitutional elements within bill drafts.
“We should pay attention to our own attorneys and not waste time and money and effort,” he says.
More than two-dozen legal review notes were issued during the last session. Twelve were attached to bills that eventually became law, and six of those laws have been challenged in court. All six have faced initial defeats by judges.
Republicans have said that the notes aren’t a reliable predictor of a bill’s constitutionality. Senate Majority Leader, Steve Fitzpatrick of Great Falls, says that he doesn’t want taxpayers to spend a lot of money on lawsuits, but adds that they’re a natural part of the government’s checks-and-balances.
“I don’t think there’s anything inherently wrong with passing a bill and then letting a court decide whether it’s constitutional. It actually helps start to define the parameters of the different constitutional rights we have,” he said.
A House of Representatives committee will take up budget proposals for the Department of Justice and the proposed increase to its litigation fund in February.
