Oppose SB49-Threat to Judicial Oversight and Democratic Accountability

Subject: Opposition to SB 49 – Threat to Judicial Oversight and Democratic Accountability

Dear Members of the Montana Legislature,

I write in strong opposition to Senate Bill 49 (SB 49), which seeks to prohibit judicial officers from initiating or conducting professional disciplinary proceedings against attorneys who serve as elected constitutional officers or legislators.

This bill is a direct assault on the separation of powers, legal accountability, and the integrity of Montana’s democracy.

1. Violation of the Separation of Powers

SB 49 undermines the checks and balances between Montana’s three branches of government. The judiciary is entrusted with ensuring that attorneys—whether in private practice or public office—adhere to legal and ethical standards. By stripping the Montana Supreme Court, the Office of Disciplinary Counsel, and the Commission on Practice of their ability to discipline government attorneys, this bill effectively elevates a specific class of individuals above professional oversight.

A fair and functioning democracy depends on an independent judiciary capable of enforcing legal standards. This bill removes that fundamental protection and sets a dangerous precedent where legislators and executive officers who are also attorneys could act without consequences, knowing they are shielded from professional discipline.

Historically, the separation of powers was designed to ensure that no one branch of government could consolidate unchecked authority. The founders, though all white and landed men were deeply concerned about the dangers of political parties and concentrated power, they attempted to make certain future generations had the basic tools to prevent tyranny.

James Madison, in The Federalist Papers No. 51, warned that "ambition must be made to counteract ambition," emphasizing the necessity of institutional checks to prevent corruption and authoritarian rule.

Additionally, George Washington, in his Farewell Address, cautioned against the dangers of political factions overtaking government and eroding democratic institutions. If those in power are insulated from scrutiny, we risk fulfilling their warnings by allowing unchecked authority to take root.

2. Breach of Legal Ethics and Public Trust

Attorneys take an oath to uphold the law and adhere to ethical standards. This responsibility does not disappear when they assume public office. If anything, the ethical obligations of attorney-legislators and attorney-executives should be held to an even higher standard because they directly create and enforce laws that affect Montanans’ lives.

SB 49 would allow government attorneys to engage in misconduct without fear of disciplinary consequences.

What happens when an attorney-legislator knowingly drafts unconstitutional laws or misuses their legal authority for personal or political gain?

This bill ensures they cannot be held accountable professionally, which erodes public trust in both our legal system and government institutions.

3. Political Protection Over Accountability

This legislation appears to be a calculated move to protect certain individuals from ethical scrutiny rather than a genuine effort to strengthen government.

By retroactively applying this law to January 1, 2024, it raises serious concerns about who this bill is designed to protect.

What cases or investigations are currently pending that SB 49 seeks to nullify?

This bill does not serve the people of Montana—it serves those who wish to escape professional and legal accountability. It is a dangerous attempt to shield elected officials from the consequences of their own misconduct.

4. The Question of Who Benefits—Examining the Lobbyists and Writers of This Bill

The fact that SB 49 was introduced at the request of the Senate Select Committee on Judicial Oversight and Reform is itself concerning.

This raises critical questions:

• What is the motivation of advocating for this bill? 

• Are there particular legislators or executive officials currently facing disciplinary action?

• Which lobbyists are pushing this measure, and what is their interest in dismantling judicial oversight?

• Where is the money supporting this bill?

• Why should the legislature decide, that certain officials should be immune from professional accountability while regular attorneys remain subject to discipline?

Transparency is essential in governance. Montanans deserve to know who benefits from this legislation and why it is being rushed forward.

5. The Larger Trend—Fascist Influences and Democratic Erosion

SB 49 is not an isolated piece of legislation; it is part of a broader trend of authoritarian tactics designed to erode democratic norms. Historical patterns show that one of the first steps in dismantling a democracy is to weaken judicial independence and eliminate oversight mechanisms.

This bill dangerously echoes the actions of governments that sought to consolidate power by removing legal checks on those in control.

By exempting attorney-politicians from discipline, SB 49 follows a disturbing trend toward government officials being above the law, a core tactic of rising fascist regimes throughout history.

Montana cannot afford to take even the first step in that direction.

Conclusion: Upholding Democracy and the Rule of Law

SB 49 is not about protecting free speech or ensuring fair governance—it is about eliminating accountability for those in power.

• It destroys the separation of powers.

• It grants immunity to government attorneys who may violate legal ethics.

• It prioritizes political protection over public trust.

• It aligns with authoritarian strategies designed to break down democratic institutions.

As legislators, your duty is not to protect yourselves or your colleagues from professional oversight—it is to serve the people of Montana and uphold the principles of justice and democracy.

I urge you to vote NO on SB 49 and protect the integrity of our government and legal system.