Montanas Oppose HB30-

Hearing - Senate Judiciary, Thursday, February 13th, 8:00 am. (rescheduled from 2/10)

Chair and Members of the Committee,

I strongly oppose to House Bill 30. This bill represents a direct attack on the

independence of Montana’s Judicial Branch and undermines the fundamental principles

of our constitutional democracy.

HB 30 seeks to strip the Montana Supreme Court of its ability to effectively review the

constitutionality of laws passed by the Legislature. The key sentence in this bill states:

"If in a proceeding before a Montana court a party challenges a state legislative act as

violative of the state constitution, the supreme court shall uphold the legislative act

unless the challenger demonstrates that the legislative act is unconstitutional beyond a

reasonable doubt."

This language fundamentally alters the balance of power between the three branches of

government by raising the standard of proof for constitutional challenges to an

unprecedented level. The "beyond a reasonable doubt" standard is the highest legal

burden of proof, typically reserved for criminal cases, not civil constitutional challenges.

If enacted, this bill would make it virtually impossible for unconstitutional laws to be

struck down, no matter how egregiously they violate the Montana Constitution.

Why HB 30 Must Be Rejected:

An Independent Judiciary is Essential to Protecting the People’s Rights

o Montana’s Constitution grants the Judicial Branch the authority to

determine the constitutionality of laws. Without an independent judiciary

capable of reviewing and overturning unconstitutional laws, the

Legislature could pass laws unchecked, no matter how oppressive or

unjust.

o If the Montana Supreme Court cannot effectively exercise its role as a

check on legislative overreach, then the Montana Constitution itself

becomes meaningless.

The Foundational Rationale for the Separation of Powers

The separation of powers is a fundamental principle of democratic governance designed

to prevent tyranny, protect individual liberties, and ensure government accountability.

This framework was established by the U.S. Constitution and adopted by state

governments, including Montana, to balance power among three co-equal branches:

1. Legislative Branch – Makes laws (Congress / State Legislature)

2. Executive Branch – Enforces laws (President / Governor)

3. Judicial Branch – Interprets laws (Courts / Supreme Court)

This system ensures that no single branch gains excessive power or dominates

government functions, preserving democratic governance.

The Montana Legislature Has a History of Passing Unconstitutional Laws

o Since 2021, the Montana Legislature has passed numerous laws that have

been struck down as unconstitutional, particularly in areas

concerning individual rights, elections, privacy, and bodily autonomy.

o However, instead of respecting these rulings and removing

unconstitutional laws from the Montana Code, the Legislature continues

to pass similar bills and waste taxpayer money defending them in court.

Constitutionality is Absolute – There Are No Degrees of Violation

o A law either is or is not constitutional. HB 30 imposes an artificial and

extreme burden on the courts, making it nearly impossible to strike down

unconstitutional laws.

o The Legislature does not have the authority to dictate how the courts

interpret the Montana Constitution. This bill is a blatant attempt to

control the Judicial Branch and limit its ability to defend the constitutional

rights of the people.

HB 30 Wastes Millions in Taxpayer Money on Unconstitutional Legislation

o The Governor’s 2023 executive budget allocated $3 million for outside

legal counsel to defend unconstitutional laws, in addition to the

Department of Justice’s own budget for external legal representation.

o Montana taxpayers should not be forced to fund legal battles to defend

legislation that infringes upon their own rights. The Legislature’s repeated

passage of unconstitutional bills is not only unlawful, but fiscally

irresponsible.

The Judiciary Exists for a Reason – This Bill Dismantles Our Built-in Protections

o The Founders of this nation and the drafters of the Montana

Constitution understood that power must be checked to prevent tyranny.

The Judiciary was created as an independent branch of government—to

protect the people from government overreach.

o By requiring an unrealistic standard of proof for constitutional

challenges, HB 30 effectively nullifies the judiciary's ability to protect the

rights of the people—dismantling a system that has safeguarded

democracy for over two centuries.

Marbury v. Madison (1803): Establishing Judicial Review Background

The case of Marbury v. Madison (1803) arose from the chaotic transition of power between

President John Adams (a Federalist) and newly elected President Thomas Jefferson (a

Democratic-Republican). In the final days of Adams' presidency, he and the Federalist-controlled Congress passed the Judiciary Act of 1801, which created new judicial positions. Adams appointed several Federalist judges, known as the "Midnight Judges," to maintain Federalist influence in government. One of these appointees, William Marbury, was to receive a commission as a Justice of the Peace in Washington, D.C. However, when Jefferson took office, his Secretary of State, James Madison, refused to deliver the commission. Marbury sued, asking the U.S. Supreme Court to compel Madison to deliver it through a writ of mandamus (a court order directing a government official to perform a duty).

The Supreme Court’s Ruling Chief Justice John Marshall (a Federalist and Adams appointee) faced a dilemma. If the Court. ordered Madison to deliver the commission and Jefferson ignored it, the Court would look weak.

If the Court refused to act, it would appear to be submitting to the executive branch.

In a brilliant legal maneuver, Marshall’s opinion did the following:

1. Ruled that Marbury had a right to his commission.

o The Judiciary Act of 1801 had legally appointed Marbury.

2. Declared that a writ of mandamus was the appropriate remedy under the Judiciary Act of

1789.

o This law granted the Supreme Court the power to issue such writs.

3. Struck down the Judiciary Act of 1789 as unconstitutional.

o The Act extended the Court’s original jurisdiction beyond what the U.S.

Constitution allowed (Article III).

o By ruling this, Marshall established that Congress could not expand the Court’s

powers beyond the Constitution.

The Impact: Judicial Review

This decision established the Supreme Court’s power of judicial review, meaning the Court

had the authority to:

• Interpret the Constitution.

• Declare laws or executive actions unconstitutional.

This was the first time the Supreme Court struck down an act of Congress, setting the

foundation for the judiciary’s role as a co-equal branch of government.

Significance

• Marbury v. Madison cemented the Supreme Court as the ultimate interpreter of the

Constitution.

• It strengthened the judiciary by ensuring it could check Congress and the President.

• The ruling ensured that no law could contradict the Constitution, preserving the principle

of separation of powers.

• This precedent continues to influence major Supreme Court decisions today.

In essence, 1803 was the year that judicial review was born, making the Supreme Court a key

player in American governance.

Who is Really Behind HB 30? The Public Deserves Answers

o It is important to ask: Who benefits from this bill? The people of Montana do not benefit from having their constitutional rights eroded.

o This bill does not serve the public interest—it serves those who seek unchecked power, those who wish to evade judicial oversight, and those who stand to profit from laws that cannot be challenged in court.

o Who wrote this bill? What special interest groups, political operatives, or outside influences are funding efforts to undermine Montana’s system of checks and balances?

o Across the country, we have seen dark money groups and external political forces push similar legislation to weaken courts and dismantle constitutional protections. We must demand transparency and ensure that Montana’s laws serve the people, not shadowy outside interests.

HB 30 is a dangerous and unconstitutional attempt to weaken judicial oversight,

dismantle the separation of powers, and strip Montanans of their constitutional

protections. The Montana Supreme Court must remain a strong, independent body

capable of defending the people’s rights without unreasonable legislative interference.

The people of Montana deserve a government that respects its own Constitution. I urge

this committee to reject HB 30 and uphold the integrity of our democratic

institutions.