As tensions between two of three Montana branches of government continue to simmer, the Montana Supreme Court reconsidered its position on awarding attorneys’ fees in a case of unconstitutional laws brought by the 2021 Legislature. And, it essentially overturned itself, this time agreeing not to award attorneys’ fees.

It is a rare example of the state’s highest court rehearing a matter it had decided, and late last week, the court fractured into at least four distinct camps on the case, which not only dealt with attorneys’ fees, but also examined the powers of the the Montana University System Board of Regents and the Montana Legislature.

The group consisted of 15 people or groups, including the Montana Federation of Public Employees, the state’s largest union, the Faculty Senate of Montana State University and Mae Nan Ellingson, one of the living original members of the 1972 Constitutional Convention. They had originally sued for a declaration that House Bill 349, 112, 102 and portion of Senate Bill 319 were illegal. They all dealt with higher education in some form, although those bills, which have been struck down, were not the basis of the Supreme Court decisions.

The new decision comes as Montana Senate Republicans launch a committee that is looking at ways to reshape the state’s judiciary. A similar committee was convened in 2021 by Republican leaders in the Legislature, and was the topic of heated political disagreements as the Republicans charged the state’s courts were both opaque and overstepping their boundaries. Meanwhile, Democrats defended the courts, saying they were simply doing their job, evaluating new laws against the state’s Constitution.

The new committee is comprised of Republican lawmakers, and Democrats have vowed to boycott the proceedings.

On Friday, the Montana Supreme Court changed course and decided against awarding attorneys’ fees to groups that brought a suit contending that four bills violated the Montana Constitution. All three of the bills were struck down by a Gallatin County District Court judge, and some of the court’s decision was appealed. However, upon re-examination, the Supreme Court sided with the district court that the Legislature’s actions had overstepped the constitutional provision that gives the Montana University Board of Regents administrative and policy power over the public universities and colleges.

Much of the Supreme Court’s very divided opinion didn’t deal with the subjects of the lawmakers’ bills, which were found to be unconstitutional; rather the high court pivoted to whether a group of university students and professors had the power to bring the lawsuit, and whether they were entitled to recouping attorneys’ fees.

When the Supreme Court originally decided the case, it overturned district court Judge Rienne McElyea’s decision not to award attorney’s fees. The Supreme Court previously argued that because the district court had said the laws were brought in bad faith, meaning the Legislature should have known they violated the Constitution, the groups’ were entitled to attorneys’ fees.

However, upon reconsideration, the Supreme Court was unable to come to enough of a consensus to obtain agreement on the issue of attorneys’ fees, so McElyea’s original decision stands; that means the groups will no longer get attorney’s fees from the state.

On second thought…

The Supreme Court’s decision was one of the more complex decisions, with justices agreeing and disagreeing with each other simultaneously. Five of the seven justices said the groups that originally filed the lawsuit had legal standing to do so.

Meanwhile, Justices Jim Rice and Dirk Sandefur disagreed, in part, saying that the lawsuit should have been brought by the Montana University Board of Regents because they are charged, by the Montana Constitution, with oversight and administration of the university system. They reasoned that if laws passed by the Legislature were problematic, it should have been the regents who responded.

Other justices said that because university students, staff and professors would be affected by the laws that they had legal standing to bring the lawsuit.

“The Board (of Regents)’s failure to initially challenge the subject legislation for whatever reason and its intervening prolonged inaction overwhelmingly demonstrate the necessity for private enforcement,” said Justice Ingrid Gustafson, who wrote parts of the opinion. “The actual student plaintiffs here, who were threatened with actual discrimination, cannot be forced to wait indefinitely for the board to assert its own independence.”

Arguably the most consequential portion of the ruling centered on the issue of attorneys’ fees. Ultimately, the high court ruled that while Montana state law allows attorneys’ fees to be awarded to groups or individuals that successfully sue the government for unconstitutional laws, under a legal theory known as the “private attorney general doctrine,” those fees are discretionary, not mandatory.

The court then reconsidered the findings of McElyea, and some justices reasoned that while there were several points that could have triggered an attorneys’ fees award, it was discretionary so the finding of lower court should be upheld.

However, in the opinion written by Justice Gustafson, and joined by Laurie McKinnon, both said that they still found that not only had the Legislature acted in bad faith when passing the laws, but that it could be argued that the Board of Regents should have fought back against the Legislature’s encroachment on their authority. Furthermore, the groups should be awarded the attorneys’ fees for essentially having to do someone else’s job.

“While we need not make a judicial determination of bad faith in this case, there are indications where one could question whether the state was not entirely acting in good faith by defending all of the bills at issue here. One such indication is that the state did not even brief any merits defense for two of the three challenged bills after the district court declared them unconstitutional. Yet the state, in its zeal to impose unconstitutional legislative enactments against the board and the Montana University System, continue to assert the plaintiffs could not even bring the claim against those laws the state concedes are unconstitutional.”

They also argued that the groups should be awarded attorneys’ fees for actually vindicating rights found in the Montana Constitution, namely those of the Board of Regents’ and its authority over the university system.

“Attorney fees are proper because of the process through which the unconstitutional bills came to be: Patently unconstitutional bills adopted through the willful disregard of constitutional obligation,” the Gustafson-McKinnon opinion said. “Assessing fees when plaintiffs successfully challenge legislation which came about through such unconstitutional means may serve to deter wrongdoing in the first place.”

Meanwhile, Chief Justice Mike McGrath and Justices Beth Baker and James Jeremiah Shea said that while the court could have awarded attorneys fees, that there are many factors that could have triggered the award, and the court would not second-guess the district court because the award is not mandatory.

“As noted by the district court, there was an independent entity of state government here who could have enforced its constitutional authority — the Board of Regents. The board is often willing and able to defend its constitutional authority. Plaintiffs here did not make the necessary showing that the board was unwilling or able, for whatever reason, to challenge these laws,” McGrath wrote.

Finally, Sandefur and Rice didn’t discuss the merits of the case or attorneys’ fees because they argued that the group shouldn’t have legal standing in the case, and that the only group with standing was the Board of Regents.

“Such decisions are inherent to the ‘full power, responsibility, and authority to supervise, coordinate, manage and control the Montana University System,’ and necessarily should be made exclusively by the board itself, not by an amorphous group of surrogates,” said Rice and Sandefur.

Reversal attorneys fees