D ORIGINAL 04/09/2024
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0639
DA 22-0639
FORWARD MONTANA; LEO GALLAGHER;
MONTANA ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS; GARY ZADICK,
Plaintiffs and Appellants,
ORDER
v.
THE STATE OF MONTANA, by and through
FILED
GREG GIANFORTE, Governor, APR -9 2024
Bowen Greenwood
Defendant and Appellee. Clerk of Supreme Court
State of Montana
On March 1, 2024, Appellee State of Montana (State) filed a petition for rehearing
in the above-titled matter. On March 4, 2024, legislators who hold leadership positions in
the Montana Legislature (legislators) filed an amicus brief in support of the State's petition-1
for rehearing. On March 18, 2024, Forward Montana filed their objection to the petition
for rehearing.
- This Court generally will grant rehearing on appeal only if our initial decision
overlooked some fact material to the decision, overlooked a question presented by counsel
that would have proven decisive to the case, or if the decision conflicts with a statute or
controlling decision not addressed by the Court. M. R. App. P. 20(1)(a)(i)-(iii).
The State first argues that we formulated arguments not raised by the parties.
Generally, we decline to address issues on appeal not raised before the district court:
See Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172 P.3d 1273. Here,
however, Appellants raised the bad faith acts of the Legislature from its complaint in
District Court through to briefing before this Court. See, e.g., Complaint, pp. 12-15, 22;
Opening Brief, pp. 1-15 (detailing the constitutional limits the Montana Legislature must
follow when enacting legislation, and arguing they are entifled to attorney fees when
elected officials "pass and enforce unconstitutional legislation" by abdicating their
obligation and "plainly violat[ing]" the Montana Constitution); see also, e.g., Opening
Brief, p. 1 (citing the Montana Constitution's right to know provision as implicated by
Article V, Section 11, of the Montana Constitution). Clearly the issues were raised below
and do not provide grounds for rehearing.
The State and legislators also argue that the Court finproperly intruded on internal
legislative rules by interpreting or enforcing them. Petitioners misinterpret and Misstate
the Court's decision. There is nothing inherently wrong with legislative "sausage-making"
and the Legislature is free to interpret and implement its own internal rules, including the
timing of its meetings, the amendment of Bills, and other issues the legislators raise as
examples of how our Opinion limits their work—as long as no constitutional provision is
violated. Petitioners ignore that the crux of our decision to award attorney fees rested on
the bad faith of the Legislature in willfully enacting unconstitutional laws.
See, e.g., Forward Montana v. State, 2024 MT 19, IN 20, 24-28, 415 Mont. 101, P.3d
Petitioners do not argue—and the State did not appeal—the District Court's finding
that the Legislature ignored its constitutional limitations by placing multiple subjects in SB
319 and by amending it beyond its original purpose as prohibited by Article V, Section 11,
of the Montana Constitution. The clear violations of these constitutional provisions forms
the basis of our award of attorney fees. Our citation to legislative rules merely reinforced
that the Legislature knowingly disregarded its constitutional limits.
Legislators here assert that intrusion into internal rules will have disastrous
consequences for the legislative process. They cite to multiple other instances where the
Legislature deviated from its rules in the last decade. Petitioners' examples actively
demonstrate that courts "'will not inquire into whether the legislature complied with its
own rules in enacting the statute, as long as no constitutional provision is violated.'"
Petition at 3 (quoting State ex reL Grendell v. Davidson, 716 N.E.2d 704, 708 (Ohio 1999))
(emphasis added). Indeed, we will not declare a statute invalid for legislative failure to
observe its own rules. See Davidson, 716 N.E.2d at 708; see also State ex reL Woodward
v. Moulton, 57 Mont. 414, 426, 189 P. 59, 64 (1920). When a case is properly before us,
our obligation is to examine whether a statute complies with the mandates of our
Constitution. Mont. Const. art. III, § 1, art. VH, § 1. "Constitutional mandates must be
followed by, the legislature and the journals may be examined to show compliance."
O'Bannon v. Gustafson, 130 Mont. 402, 407, 303 P.2d 938, 941 (1956).
Moreover, our decision does not invite or permit a cause of action to challenge
legislation for merely violating internal legislative rules or open the floodgates by
"incentivizing" litigants to bring every bill into court. An award of attorney fees under the
private attorney general doctrine is very limited by caselaw. See generally Forward
Montana, ¶ 16.
However, as the Opinion notes, we may award attorney fees to a prevailing party
when equities dictate. Here, the bad faith of the Legislature in enacting unconstitutional
legislation, as shown by the process through which the unconstitutional additions came to
. be—whether or not the process actually violated internal legislative rules—warranted
attorney fees. The District Court found: that SB 319 passed the Senate and House with
minor changes that needed to be reconciled; that the Legislature disregarded those minor
changes when it appointed a free conference commiftee that considered amendments
outside the scope of the original bill; that the committee had a short meeting with no public
participation, testimony, or notice; and that two of the amendments during this meeting
disregarded constitutional limits on legislative power. Legislators dispute some of these
factual findings. But those arguments are not properly before us on a petition for rehearing.
Instead, the parties should have presented evidence and arguments at the District Court or
brought them before this Court in an appeal of the court's order. They did not file an
appeal; thus, the facts found by the District Court have become law of the case.
See Jonas v. Jonas, 2013 MT 202, ¶ 21, 371 Mont 113, 308 P.3d 33.
As shown by petitioners' examples, the Legislature sometimes deviates from its
normal processes to enact legislation. But when it knowingly disregards its constitutional
limits and enacts blatantly unconstitutional legislation, the State may be subject to attorney
fees when private parties are forced to vindicate constitutional interests. The equities in
3
this case supported an award of fees for plaintiffs under the private attorney general
doctrine.
Petitioners contend that our decision raises speech or debate immunity issues from
Article V, Section 8, of the Montana Constitution. These arguments were not raised in the
State's briefs and thus are not appropriate matters for a petition for rehearing.'
See M. R. App. P. 20. Nevertheless, we note that speech or debate immunity immunizes
legislators from suit "to support the rights of the people." Cooper v. Glaser, 2010 MT 55,
¶ 11, 355 Mont. 342, 228 P.3d 443 (internal quotation omitted). No legislators are liable
for their unconstitutional enactment of SB 319, nor were they burdened by defending
themselves in a lawsuit. Accord Eastland v. United States Servicemen's Fund, 421 U.S.
491, 503, 95 S. Ct. 1813, 1821 (1975). Our decision does not delay or disrupt the legislative
function. Eastland, 421 U.S. at 503, 95 S. Ct. at 1821. The Legislature must abide by
constitutional limits in enacting legislation. To protect the rights of the people, the private
attorney general doctrine allows an award of attorney fees against the State when private
parties are forced to vindicate constitutional interests.
Finally, the State contends we overlooked several arguments made, including the
plaintiffs' litigation burden below, using caution in awarding fees against the State, and the
attorney general's merits defense of SB 319. Upon review, the Court did not overlook
arguments made by the State. In briefing before us on the three Montrust factors, the State
focused on whether the constitutional interests vindicated met the first factor and whether
private enforcement was necessary—it did not dispute the burden plaintiffs faced, as the
District Court similarly concluded. See Response Brief, pp. 19-26; M. R. App. P. 12. We
also did not overlook the State's arguments that we should use caution in awarding fees
against the State. See Forward Montana, ¶¶ 19-20, 25-34.
Legislators' brief further misreads our Opinion by contending we "navigated around" statutory
immunity by criticizing the legislative conduct at issue as administrative rather than legislative.
Our actual holding was that § 2-9-111, MCA, grants immunity from torts committed by legislative
acts or omissions, which has nothing to do with whether the State is immune from an equitable
award of attorney fees. Forward Montana, ¶ 23.
4
Nevertheless, it is apparent that some of the wording in our Opinion has created
some confusion. As such, to the extent that our Opinion suggested binding legal
interpretations of internal legislative rules, the petition is granted and an amended Opinion
will be filed with this Order.
Therefore, having considered the petition and response from Appellee,
IT IS ORDERED that the petition for rehearing is GRANTED, the Opinion is
WITHDRAWN, and a new Opinion will be issued.
The Clerk is directed to provide a copy of this Order to all counsel of record.
DATED this y of April, 2024.
Chief Justice
Justices
While we disagree with much of what is stated within the Order, and with the
Court's denial of rehearing on the merits of its reversal of the District Court's denial of
attorney fees in this matter, we nonetheless concur in granting rehearing on the basis cited
by the Court.
5
eai
- fl...-
1. •=....il
16)464......MP°
Justices
6