Should legislatures be able to overturn court decisions on a 2/3rds vote? The Montana experience

Welcome State Bar of Michigan Blog readers!

I noted yesterday the litany of bills introduced in New Jersey to allow two-thirds of that state’s legislature to override court decisions. Not a single one of those bills reached a committee hearing. Not so in Montana.


SB 397 (2005) / SB 334 (2009) / SB 323 (2011)

A decision of the Montana supreme court invalidating one or more statutes or parts of statutes may be overturned by a bill that is approved by a vote of at least two-thirds of the members of each house of the legislature and that is signed by the governor. The bill must specifically state the statutes or parts of statutes invalidated by the decision being overturned.

When first introduced in 2005, the amendment was part of a package of billsĀ all introduced by Republican Sen. Joe Balyeat, including

  • SB 391 – sets term limits for judges similar or equal to that of state legislators (“If legislators want to legislate from the bench, they should be treated like legislators”)
  • SB 392 – setsĀ  judicial pay as equal to that of legislators (“‘Legislating’ judges should be paid the same low rate…”)
  • SB 393 – ends nonpartisan races for judicial office
  • SB 394 – ends requirement judges be lawyers
  • SB 395 – elects supreme court by district, rather than statewide
  • SB 396 – sets supreme court campaign contribution limit as same a legislator
  • SB 398 – allows judges to be recalled from office for their decisions
  • SB 399 – applies open meetings law to judiciary
  • SB 400 – requires suits against legislature be brought in district of House Speaker or Senate President, rather than the capital

According to Sen. Balyeat’s 2005 testimony (no audio/video, minutes here) the Montana Supreme Court had failed to exercise “restraint” in various cases and was functioning as a “super legislature”. As in the New Jersey instance, court rulings on school funding were cited as a reason for the need to allow for an override of state supreme court decisions. Other proponents argued “it would put the people back in charge instead of the Court.” Ultimately, SB 397 was tabled on a 7-5 vote.

The bill returned in 2009 as SB 334. In his written testimony, which replicated the 2005 testimony almost identically, Sen. Balyeat had dropped all the other proposals except legislative override, supreme court election by district, and for suits against legislature to be brought in district of the House Speaker or Senate President, rather than the capital. This time the committee tied 6-6 on the bill and then voted 9-3 to table it. The audio (there was no video) is below. Note this exchange at about the 12:55 mark between Republican Senate Judiciary Vice-Chair Jim Shockley and Sen. Balyeat:

Sen. Shockley: Further questions? No. Just one from me Senator Balyeat. In effect, this is a constitutional, this allows the legislature in conjunction with the governor to amend the constitution, that’s basically it, right?

Sen. Balyeat: Um. Pretty close, yes. Although, it would also be limited to, with respect to a particular statute. Ok?

Sen. Shockley: Right. So it only says “Statute X is unconstitutional” we would in effect change the constitution so that that statute would be effective. So, we amend the constitution.

Sen. Balyeat: With respect to that narrow statutory provision.

Sen. Shockley: Thank you.

The third attempt at legislative override was in 2011 (SB 323). The same written testimony was once again submitted. This time the vote was 4-8 against legislative override (minutes here, audio here).