Laws on trial

Multiple legal challenges have been filed against measures passed by the 2021 Montana Legislature. Here’s where each case stands.

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Last updated 1:35 PM Jul 19, 2021
By Eric Dietrich & the MTFP staff

Montana’s historic 2021 legislative session, the first since 2003 with Republicans in control of both the Legislature and the governor’s office, produced a wave of new conservative laws on politically fraught topics including gun rights, abortion access and voting regulations. Opponents have begun to challenge those measures in court, giving the state’s judicial branch the chance to weigh arguments about whether the new laws violate the Montana Constitution.

The litigation comes as Republicans have alleged liberal bias in the state judiciary and established a legislative committee to investigate judicial conduct — an effort that has spun into its own batch of legal proceedings.

As these cases work their way through the courts, Montana Free Press will keep track of which bills are being challenged and the status of specific cases. We plan to update this guide weekly on Mondays and when new developments are reported. We welcome questions or suggestions at tips@montanafreepress.org.

Challenges to 2021 bills

Cases seeking to nullify laws or proposed voter referendums passed by the 2021 Legislature.
TapClick a case for more information. Full legal filings are linked inside case dockets where available (some filings may not be available while MTFP waits on records requests).

Montana Supreme Court

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B. Brown et al. v. G. Gianforte (OP-21-0125)
Challenges law allowing the governor to fill judicial vacancies directly, abolishing the Judicial Nomination Commission established in 1972. The challenge to SB 140 became tangled with a broader conflict between the legislative and judicial branches. 22 major legal filings, last on June 10.
Law upheld
Bill challenged: SB 140
Plaintiffs
Bob Brown, Dorothy Bradley, Vernon Finley, Mae Nan Ellingson, and the Montana League of Women Voters
Defendants
Governor Greg Gianforte, Montana Legislature
Judge
Montana Supreme Court

Related coverage

Montana Free Press
6/10/21
Montana Free Press
4/20/21

Major legal filings

3/17/21Petition for Original Jurisdiction filed by plaintiffs
Initial filing asking the court to declare SB 140 unconstitutional
3/24/21Substitution Order filed by the court
Replaces recused Chief Justice Mike McGrath with District Court Judge Kurt Krueger
Asks for Krueger's recusal, citing Krueger's opposition to SB 140 in an internal judicial branch poll. Also requests a stay of the proceedings "until such time as the Court can seat an impartial and independent judicial panel to decide this case"
4/2/21Recusal Notice filed by District Court Judge Kurt Krueger
4/2/21Petitioner's Response filed by plaintiffs
Opposes a stay of the proceedings
4/7/21Order RE Disqualifications filed by the court
Declines to stay the proceedings, saying no Supreme Court justices participated in the poll
4/11/21Emergency Motion to Quash Subpoena filed by Court Administrator Beth McLaughlin
Request to block legislative subpoena for judicial emails
4/11/21Temporary Order Quashing Subpoenas filed by the court
Temporarily quashes legislative subpoena pending further legal argument
4/12/21Motion to Strike filed by defendants
Asks court to throw out Court Administrator McLaughlin's motions
4/14/21Amicus Brief from Mountain States Legal Foundation filed by a third party
Third-party legal arguments on SB 140's constitutionality
Third-party legal arguments on SB 140's constitutionality
4/14/21Response to Petition for Original Jurisdiction filed by defendants
Response to legal arguments raised in initial petition
4/15/21Emergency Motion to Quash Revised Legislative Subpoena filed by Court Administrator Beth McLaughlin
Asks court to throw out revised legislative subpoena
4/16/21Updated Motion to Strike filed by defendants
Asks court to throw out the motion to quash the revised legislative subpoena
4/16/21Order Quashing Subpoena filed by the court
Temporarily quashes legislative subpoena pending further legal argument
4/16/21Response in Opposition to Second Emergency Motion to Quash filed by Montana Legislature
4/23/21Notice to Court filed by defendants
5/5/21Petitioners' Motion to Amend Petition filed by plaintiffs
Attempts to add a challenge to the constitutionality of SB 402 to the case
5/6/21Order Denying Amended Petition filed by the court
Denies attempt to add challenge to SB 402 to the case
5/10/21Petitioners' Reply Brief filed by plaintiffs
Legal arguments against SB 140
6/10/21Opinion filed by the court
The Supreme Court’s official 6-1 ruling that SB 140 is constitutional, upholding the law against plaintiffs’ legal challenge
6/10/21Opinion Synopsis filed by the court
Brief summary of the Court’s ruling
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Board of Regents v. A. Knudsen (OP-21-0246)
Challenges law that allows firearm possession on campuses 2 major legal filings, last on May 26.
Dismissed for litigation in lower court
Bill challenged: HB 102
Plaintiffs
Montana Board of Regents
Defendants
State of Montana, Attorney General Austin Knudsen
Judge
Montana Supreme Court

Major legal filings

5/20/21Petition for Original Jurisdiction filed by plaintiffs
Asks the Montana Supreme Court to take up the case
5/26/21Order to Dismiss filed by the court
Dismisses the case, saying a lower court is the appropriate venue
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S. Barrett et al. v. G. Gianforte (OP-21-0247)
Challenges campus carry law and others 2 major legal filings, last on May 26.
Dismissed for litigation in lower court
Bills challenged: HB 102, HB 112, HB 349, SB 319
Plaintiffs
Steve Barrett, Robert Knight, Montana Federation of Public Employees, Lawrence Pettit, Montana University System Faculty Association Representatives, Montana State University Faculty Senate, Joy Honea, Annjeanette Belcourt, Franke Wilmer, Montana Public Interest Research Group, Ashley Phelan, Joseph Knappenberger, and Nicole Bondurant
Defendants
State of Montana, Governor Greg Gianforte
Judge
Montana Supreme Court

Major legal filings

5/20/21Petition for Original Jurisdiction filed by plaintiffs
Asks the Montana Supreme Court to take up the case
5/26/21Order to Dismiss filed by the court
Dismisses the case, saying a lower court is the appropriate venue
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Winter et al. v. 1st Judicial District (OP-21-0334)
Asks Montana Supreme Court to take Winter et al. v. Montana over from a lower state court in Lewis & Clark County and declare judicial appointment law SB 140 unconstitutional 1 major legal filing, last on July 9.
Pending
Bill challenged: SB 140
Plaintiffs
Thomas Winter, Barbara Bessette
Defendants
Montana First Judicial District Court, Judge Mike McMahon
Judge
Montana Supreme Court

Major legal filings

7/9/21Petition for Writ of Supervisory Control filed by plaintiffs
Asks the Montana Supreme Court to take over the case

Lewis & Clark County District Court

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Board of Regents v. Montana (1-DV-21-0598)
Lawsuit challenging campus carry bill, refiled in district court 18 major legal filings, last on July 15.
Pending
Bill challenged: HB 102
Plaintiffs
Montana Board of Regents
Defendants
State of Montana, via Attorney General Austin Knudsen
Judge
Michael McMahon

Related coverage

Major legal filings

5/27/21Petition for Declaratory Relief filed by plaintiffs
Initial filing that initiate the lawsuit
5/27/21Brief in Support of Temporary Restraining Order filed by plaintiffs
Argues for temporarily keeping the constitutional carry on campuses law from taking effect while the court decides whether to to delay for the full period it take to resolve the lawsuit
5/27/21Temporary Restraining Order filed by the court
Temporarily blocks the law
6/4/21Brief in Opposition to Preliminary Injunction filed by defendant
Argues against delaying the law for the full duration of litigation
6/7/21Motion to Intervene filed by third-party David Diacon
Notice of a Montana citizen seeking to intervene in the case
6/7/21Petition of Intervenor filed by third-party David Diacon
Argument for allowing third-party citizen to intervene
6/7/21Brief in Support of Motion to Intervene filed by third-party David Diacon
More argument for allowing third-party citizen to intervene
6/7/21Brief in Opposition to Preliminary Injunction filed by defendant
Argues against extending the temporary restraining order to a preliminary injunction
Extends the order keeping the campus carry law from taking effect while litigation proceeds
6/8/21Motion to Intervene filed by third-party Montana Shooting Sports Association
6/8/21Brief in Support of Motion to Intervene filed by third-party Montana Shooting Sports Association
6/22/21Response to Motions to Intervene filed by defendant
Supports third-party efforts intervene in case
6/24/21Brief Opposing Motions to Intervene filed by plaintiffs
Opposes third-party efforts intervene in the case
6/30/21Supplemental Response to Motions to Intervene filed by defendant
7/2/21Reply Brief to Brief Opposing Motions to Intervene filed by third-party David Diacon
7/8/21Answer filed by defendants
Legal arguments defending the law
7/15/21Reply Brief Supporting Motion to Intervene filed by third-party Montana Shooting Sports Association
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Forward Montana v. Montana (1-DV-21-0611)
Challenges constitutionality of the legislative process that passed a campaign finance bill with significant provisions added at the last minute 10 major legal filings, last on July 1.
Pending
Bill challenged: SB 319
Plaintiffs
Forward Montana, Lewis & Clark County Attorney Leo Gallagher, Montana Association of Criminal Defense Lawyers, Alexander Blewett III, Larrry Anderson, Maxon Davis, Gary Zadick
Defendants
State of Montana, via Governor Greg Gianforte
Judge
Mike Menahan

Related coverage

Major legal filings

6/1/21Complaint filed by plaintiffs
Initial filing that kicks off the lawsuit
6/4/21Application for Preliminary Injunction filed by plaintiffs
Asks judge to keep challenged law from taking effect while litigation proceeds
Arguments for preliminary injunction
6/14/21Recusal Notice filed by the court
Has Judge Kathy Seeley assume jurisdiction over the case as Judge Michael McMahon recuses himself.
6/14/21Substitution Motion filed by defendants
Requests a judge other than Seeley be assigned to the case
6/17/21Judge Menahan assumes case filed by the court
Swaps in Mike Menahan for Kathy Seeley as presiding judge
6/21/21Response to Motion for Preliminary Injunction filed by defendants
6/29/21Show Cause Hearing filed by the court
Oral arguments before judge, who says he’ll issue a preliminary injunction
7/1/21Preliminary Injunction Order filed by the court
Written judicial order preventing law from taking effect while litigation proceeds
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Winter et al. v. Montana (1-DV-21-0699)
Challenges bill providing governor direct appointment power to judicial vacancies 7 major legal filings, last on July 9.
Pending
Bill challenged: SB 140
Plaintiffs
Thomas Winter, Barbara Bessette
Defendants
State of Montana, via Governor Greg Gianforte
Judge
Michael McMahon

Major legal filings

6/25/21Complaint filed by plaintiffs
Initial filing that kicks off the lawsuit
6/30/21Motion for Temporary Restraining Order filed by plaintiffs
Asks judge to keep governor from filling a judicial vacancy in accordance with the appointment law challenged by the lawsuit
Argues restraining order request should be denied
7/2/21Order filed by the court
Denies request for Temporary Restraining Order
Indicates plaintiffs have asked the Montana Supreme Court to take over the case (see Winter et al. v. 1st Judicial District, OP-21-0334)

Silver Bow County District Court

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McDonald et al. v. C. Jacobsen (2-DV-21-0120)
Challenges proposed voter referendum on electing Montana Supreme Court justices by district. 2 major legal filings, last on July 16.
Pending
Bill challenged: HB 325
Plaintiffs
Sister Mary Jo McDonald, Lori Maloney, Fritz Daily, Bob Brown, Dorothy Bradley, Vernon Finley, Mae Nan Ellingson and the League of Women Voters of Montana
Defendants
Montana Secretary of State Christi Jacobsen
Judge
Kurt Kreuger

Related coverage

Montana Free Press
3/26/21

Major legal filings

5/10/21Complaint filed by plaintiffs
Initial legal filing to initiate the lawsuit
7/16/21Motion for Substitution filed by defendants
Requests Kurt Kreuger be replaced with a different judge

Yellowstone County District Court

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Montana Democratic Party v. C. Jacobsen (13-DV-21-0451)
Challenges new laws ending same-day voter registration, establishing voter ID requirements and regulating mail ballot collection 7 major legal filings, last on July 12.
Pending
Bills challenged: HB 176, SB 169, HB 530
Plaintiffs
Montana Democratic Party and Mitch Bohn
Defendants
Montana Secretary of State Christi Jacobsen
Judge
Michael G. Moses

Related coverage

Montana Free Press
5/18/21

Major legal filings

4/20/21Complaint filed by plaintiffs
Initial legal filing to initiate the lawsuit
5/14/21Amended Complaint filed by plaintiffs
Adds mail ballot collection law, HB 530, to list of bills challenged
6/2/21Motion to Dismiss Counts I, II and III filed by defendant
Pushes to dismiss some of plaintiffs’ specific legal arguments
6/24/21Motion to Consolidate filed by plaintiffs
Asks judge to consolidate 13-DV-21-0451, Western Native Voice et al. v. C. Jacobsen, into this case.
6/24/21Brief in Support of Motion to Consolidate filed by plaintiffs
6/28/21Brief in Opposition to Motion to Dismiss filed by plaintiffs
7/12/21Response to Motion for Consolidation filed by defendants
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Western Native Voice et al. v. C. Jacobsen (13-DV-21-0560)
Challenges new laws ending same-day voter registration and regulating mail ballot collection 7 major legal filings, last on July 12.
Pending
Bills challenged: HB 176, HB 530
Plaintiffs
Western Native Voice, Montana Native Vote, Blackfeet Nation, Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, and Northern Cheyenne Tribe
Defendants
Montana Secretary of State Christi Jacobsen
Judge
Gregory Todd

Related coverage

Montana Free Press
5/18/21

Major legal filings

5/17/21Complaint filed by plaintiffs
Initial filing that kicks off the lawsuit
6/24/21Motion to Consolidate filed by plaintiffs
Asks judge to consolidate this case into 13-DV-21-0451, Montana Democratic Party v. C. Jacobsen.
6/24/21Brief in Support of Motion to Consolidate filed by plaintiffs
6/30/21Motion for Substitution of Judge filed by plaintiffs
6/30/21Motion for Substitution of Judge filed by plaintiffs
6/30/21Notice of Judge Substitution filed by the Court
Reassigns case from Judge Ashley Harada to Judge Gregory Todd
7/12/21Response to Motion for Consolidation filed by defendants
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A. Marquez v. Gianforte et al. (13-DV-21-0873)
Challenges law that requires transgender Montanans to obtain gender-affirming surgery before they can update the gender listed on their birth certificate 1 major legal filing, last on July 16.
Pending
Bill challenged: SB 280
Plaintiffs
Amelia Marquez, John Doe
Defendants
Governor Greg Gianforte, Montana Department of Health and Human Services, DPHHS Director Adam Meier
Judge
Michael G. Moses

Major legal filings

7/16/21Complaint filed by plaintiffs
Initial legal filing to initiate the lawsuit

Gallatin County District Court

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S. Barrett et al. v. Montana (18-DV-21-0581)
Challenges campus carry law and others, refiled in district court 1 major legal filing, last on June 3.
Pending
Bills challenged: HB 102, HB 112, HB 349, SB 319
Plaintiffs
Steve Barrett, Robert Knight, Montana Federation of Public Employees, Lawrence Pettit, Montana University System Faculty Association Representatives, Montana State University Faculty Senate, Joy Honea, Annjeanette Belcourt, Franke Wilmer, Montana Public Interest Research Group, Ashley Phelan, Joseph Knappenberger, Nicole Bondurant, Mae Nan Ellingson
Defendants
State of Montana, Governor Greg Gianforte, Attorney General Austin Knudsen
Judge
Rienne McElyea

Major legal filings

6/3/21Complaint filed by plaintiffs
Initiates the case

U.S. District Court, District of Montana, Billings Division

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Portland General Electric Company et al. v. NorthWestern Energy et al. (1-21-cv-00047*)
Challenges two laws that aim to keep the Colstrip coal plant operational by changing how and where disputes between owners are handled 15 major legal filings, last on July 1.
Pending
Bills challenged: SB 265, SB 266
Plaintiffs
Portland General Electric Company, Avista Corporation, PacifiCorp, Puget Sound Energy Inc.
Defendants
NorthWestern Corporation, Talen Montana LLC, Attorney General Austin Knudsen
Judge
Magistrate Judge Kathleen L. DeSoto

Major legal filings

5/4/21Complaint filed by plaintiffs
Initial filing challenging SB 265
5/19/21Amended Complaint filed by plaintiffs
Adds SB 266 challenge to the lawsuit
5/27/21Motion for Preliminary Injunction filed by plaintiffs
Asks judge to keep Attorney General Austin Knudsen from enforcing SB 266
Detailed argument supporting preliminary injunction request
6/2/21Answer to Amended Complaint filed by NorthWestern
NorthWestern's formal response to the issues raised in the complaint
6/3/21Motion to Consolidate filed by plaintiffs
6/3/21Brief Supporting Motion to Consolidate filed by plaintiffs
Fuller legal arguments on motion
6/17/21Response to Motion to Consolidate Cases filed by NorthWestern
6/17/21Notice of Position on Preliminary Injunction filed by Attorney General Austin Knudsen
Says a temporary order barring SB 266 enforcement would have no immediate effect since Colstrip owners have an operating budget in place for 2021 and don’t plan to immediately close the plant.
6/17/21Answer to Amended Complaint filed by Talen Montana
Talen’s formal response to the issues raised in the complaint
6/17/21Response to Motion for Preliminary Injunction filed by Talen Montana
Arguments opposing request to prevent SB 266 enforcement
6/17/21Response to Motion for Preliminary Injunction filed by NorthWestern
Asks the judge to require Colstrip owners to enter arbitration proceedings
6/22/21Answer to Amended Complaint filed by Attorney General Austin Knudsen
Montana’s formal response to the complaint; asks for the case to be dismissed
7/1/21Reply Brief Supporting Motion to Consolidate filed by plaintiffs
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Legislative subpoena powers

Cases related to the Republican investigation of alleged liberal bias in the Montana judiciary.
TapClick a case for more information. Full legal filings are linked inside case dockets where available (some filings may not be available while MTFP waits on records requests).

Montana Supreme Court

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B. McLaughlin v. Legislature (OP-21-0173)
Dispute over scope of legislative subpoena power and the Legislature’s power to conduct oversight of the judiciary 19 major legal filings, last on July 14.
Decided
Plaintiffs
Montana Supreme Court Administrator Beth McLaughlin
Defendants
Montana Legislature and the Montana Department of Administration
Judge
Montana Supreme Court

Major legal filings

4/14/21Motion to Dismiss filed by defendants
Asks court to throw out the case
4/16/21Order Quashing Legislative Subpoena filed by the court
Temporarily quashes legislative subpoena while case proceeds
4/28/21Petitioner's Response to Motion to Dismiss filed by plaintiff
4/29/21Response filed by defendant Montana Dept. of Administration
4/30/21Response filed by defendant Montana Legislature
4/30/21Motion to Disqualify Justices filed by defendants
Argues Supreme Court justices have conflicts of interest and shouldn't preside over the case
5/5/21Recusal Notice for Justice Jim Rice filed by Chief Justice Mike McGrath
Replaces Rice with District Court Judge Donald L. Harris
Argues justices can fairly hear the case
5/12/21Order Denying Disqualification Motion filed by the court
Denies motion seeking to remove Supreme Court justices from the case
5/19/21Correction to Opinion filed by the court
Corrected version of prior order
5/26/21Petition for Rehearing filed by defendants
Asks the Court to reconsider its disqualification denial
6/4/21Response to Petition for Rehearing filed by plaintiff
Argues against the reconsideration request
6/22/21Motion to Dismiss filed by defendants
Asks judge to dismiss case because the Legislature has withdrawn the disputed subpoenas
6/24/21Response to Motion to Dismiss filed by plaintiff
Resists motion to dismiss, asks for a court ruling that can guide future legislative subpoenas
6/29/21Order Denying Motion to Dismiss filed by the court
7/14/21Opinion filed by the court
Unanimous ruling that the Legislature exceeded the scope of its power by issuing a broad subpoena for judicial records
7/14/21Opinion Synopsis filed by the court

Lewis & Clark County District Court

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Justice Rice v. Legislature (1-DV-21-0451)
Legislative subpoena challenge filed in district court by one Montana Supreme Court justice 6 major legal filings, last on July 6.
Pending
Plaintiffs
Justice Jim Rice
Defendants
Montana State Legislature
Judge
Michael McMahon

Major legal filings

Asks district court judge to quash legislative subpoena
4/19/21Recusal Notice filed by the court
Substitutes Judge Mike Menahan for Judge Michael McMahon
5/10/21Injunction Hearing filed by the court
Oral arguments about quashing legislative subpoena
5/18/21Preliminary Injunction Order filed by the court
Quashed legislative subpoena while case proceeds
6/23/21Motion to Dismiss filed by defendants
Asks for case to be dismissed since Legislature has withdrawn its subpoenas
7/6/21Order Denying Motion to Dismiss filed by the court

Public access

Cases involving public access to legislative proceedings.
TapClick a case for more information. Full legal filings are linked inside case dockets where available (some filings may not be available while MTFP waits on records requests).

Lewis & Clark County District Court

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Associated Press et al. v. Barry Usher (1-DV-21-0124)
Access lawsuit filed by group of media outlets after a MTFP reporter was denied entry to a House Judiciary Committee GOP caucus committee meeting. Judge Mike Menahan ruled in July that the gathering of lawmakers didn’t constitute a legal committee quorum and dismissed the case. 11 major legal filings, last on July 8.
Decided – dismissed
Plaintiffs
Associated Press, Billings Gazette, Bozeman Daily Chronicle, Helena Independent Record, Missoulian, Montana Standard, Montana Free Press, Ravalli Republic, Lee Enterprises, Hagadone Media Montana, Montana Broadcasters Association, Montana Newspaper Association
Defendants
House Judiciary Committee Chair Barry Usher
Judge
Mike Menahan

Major legal filings

2/10/21Petition filed by plaintiffs
Initial filing that kicks off the case, asking the court to declare the meeting a violation of the Montana Constitution’s right-to-know clause.
2/10/21Declaration of Mara Silvers filed by plaintiffs
Sworn statement from MTFP reporter Mara Silvers describing the situation that triggered the lawsuit.
4/2/21Motion for Judgement on the Pleadings filed by plaintiffs
Asks the judge to rule on the case
4/5/21Motion to Dismiss filed by defendant
Argues case should be dismissed
4/5/21Brief in Support of Motion to Dismiss filed by defendant
4/14/21Brief in Opposition to Motion to Dismiss filed by plaintiffs
4/19/21Response to Motion for Judgment filed by defendant
5/5/21Reply in Support of Motion to Dismiss filed by defendant
5/7/21Reply Brief in Support of Motion for Judgement filed by plaintiffs
7/8/21Order filed by the court
Judicial ruling that dismisses the case
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