Montana

On second thought: Montana Supreme Court decides not to give attorneys' fees to groups • Daily Montanan

Published

2 years ago

April 29, 2024

On second thought: Montana Supreme Court decides not to give attorneys' fees to groups • Daily Montanan

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.

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Missoula and Western Montana neighbors: Obituaries for March 11

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9 hours ago

March 11, 2026

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Missoula and Western Montana neighbors: Obituaries for March 11

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Montana AG letter alleges Helena violates law banning ‘sanctuary cities’

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21 hours ago

March 10, 2026

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Montana AG letter alleges Helena violates law banning ‘sanctuary cities’

HELENA — On Monday, Montana Attorney General Austin Knudsen sent a letter to the City of Helena claiming the municipality is not in compliance with the state’s law banning “sanctuary cities.” The letter comes just under a month after the State of Montana launched an investigation into a city resolution on Helena Police policy and Helena’s involvement in federal immigration enforcement.

In the letter, Knudsen laid out the ways he believes the city’s resolution violated state law. The attorney general gave Helena 15 days to respond or reverse the policy. If the city does not comply, his office will pursue legal action.

“Helena’s resolution appears to contain blatant violations of this law,” wrote Knudsen.

MTN News

On January 26, 2026, the City of Helena adopted a resolution clarifying when and how the Helena Police Department will cooperate with federal immigration officials. The vote was 4 to 1. The Helena commission seats and the mayor are elected in non-partisan races.

In the letter, Knudsen alleges the resolution established “a broad sanctuary city policy” that seeks to protect every illegal immigrant, regardless of whether the individual had committed a serious crime or not. The state further claims the resolution gives illegal immigrants “special privileges” in plea deals and establishes a “free-for-all policy” where a police officer can request the unmasking of Department of Homeland Security and ICE officers.

Knudsen has requested that the City of Helena, in their response, specifically describe in detail how the resolution complies with Montana law, provide emails and correspondence from city staff and the commission regarding the resolution.

Helena City manager Alana Lake told MTN in a statement: “The City of Helena is aware of the issues being raised by the Attorney General’s Office and is reviewing the matter. While we cannot discuss the details of a potential legal issue, the City is committed to transparency and compliance with the law. The City takes these matters seriously and will continue to cooperate with the appropriate authorities while remaining focused on serving our community.”

Passed in 2021, Montana House Bill 200 prohibits a state agency or local government from implementing any policy that prevents employees or departments from communicating with federal agencies regarding immigration or citizenship status for lawful purposes. It also states governments must comply with immigration detainer requests if they are lawfully made.

HB 200 was backed by Republicans and passed with only Republican votes. Gov. Greg Gianforte signed the legislation into law on March 31, 2021.

Passage of the resolution by the Helena City Commission has drawn ire from conservative voices in Montana politics and on the national level.

The resolution said the commission supported the Helena Police Department avoiding “committing its resources to federal action for which it has no authority,” such as entering into an agreement with the federal government to directly enforce immigration laws. Under federal law, immigration enforcement is conducted by federal agencies under the Department of Homeland Security. However, under the Immigration and Nationality Act, state and local governments can voluntarily enter into 287 (g) agreements with the federal government that allow them to enforce immigration laws.

The commission further supported HPD’s policy not to stop, detain, or arrest a person solely on suspected violations of immigration law, including assisting other agencies in an arrest based solely on immigration law.

DEEPER LOOK: Helena has seen a growing debate over ICE and local police involvement

In the resolution, the commission also supported an HPD officer, using their own discretion, requesting the identification and unmasking of a Department of Homeland Security Officer if the HPD officer “feels it will not be interfering with the actions of federal officers exercising their jurisdiction.”

“This adversarial relationship by local law enforcement toward federal officers itself undermines public safety and forces immigration officers to fear for their safety when they are simply carrying out their lawful duties,” wrote Knudsen.

The resolution further supports the City of Helena’s policy not to consider immigration consequences in a plea agreement with a defendant.

The commission also supports the City of Helena not disclosing any sensitive information about any person – including immigration status, sexual orientation, or social security number – except as required by law.

“This is a restriction that directly conflicts with Montana’s prohibition on sanctuary jurisdictions, specifically ‘sending to, receiving from, exchanging with, or maintaining for a federal, state, or local government entity information regarding a person’s citizenship or immigration status for a lawful purpose,’” the attorney general wrote.

If a government is found to be violating Montana’s law banning “sanctuary cities”, the state could fine them $10,000 every five days, prevent them from receiving new grants from the state, and have their projects with the state re-prioritized. A government in violation can avoid penalties by becoming compliant with the law within 14 days of being notified of the violation.

Read the full letter from the Montana Attorney General to the City of Helena:

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Dispatches from the Wild: Montana’s wild inheritance at risk | Explore Big Sky

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1 day ago

March 10, 2026

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Dispatches from the Wild: Montana’s wild inheritance at risk | Explore Big Sky

Steve Pearce and the future of the BLM

By Benjamin Alva Polley EBS COLUMNIST

If you care about hunting elk in crisp October air, floating a clear-running river for cutthroat trout, or simply taking your kids camping beneath a sky unspoiled by drill rigs, you should be outraged that Steve Pearce was ever considered to run the Bureau of Land Management.

The BLM is the largest landlord in the West. It oversees nearly 245 million acres of public land—millions of those acres in and around Montana’s most cherished places. This land is the backbone of our elk and mule deer herds, our sage grouse leks, our pronghorn migration routes and our blue-ribbon trout streams. It’s also the stage on which Montana’s hunting, fishing and outdoor recreation economy plays out.

Putting someone with Steve Pearce’s environmental record in charge of that land is like handing your cabin keys to the arsonist who’s always hated it. In the four months since Pearce was first nominated, it emerged that, if confirmed, he and his wife would divest from more than 1,000 oil and gas leases in Oklahoma to address potential conflicts of interest. While some senators strongly support his “active forest management” approach, he still faces opposition from groups alarmed by his record on public land transfers. On March 4, the Senate Energy and Natural Resources Committee voted 11-9 to advance his nomination, despite concerns from conservation groups.

Pearce’s track record is no mystery. He has consistently sided with extractive industries at the expense of wildlife, habitat and public access. He has supported opening more public lands to oil and gas drilling, weakening bedrock environmental safeguards and undermining science-based management. His votes and public statements have signaled again and again that he sees wild country as an obstacle to be overcome, not a legacy to be stewarded.

For Montana, that posture is an existential threat. Our big-game herds rely on intact winter range and unfragmented migration corridors across BLM lands. Aggressive drilling, poorly planned roads and relaxed reclamation standards shred those habitats. Once you carve up a landscape with pads, pipelines and traffic, you don’t get solitude—or mature bull elk—back with the stroke of a pen.

Anglers should be just as alarmed. Headwater streams and riparian corridors on BLM ground are the life support system for native bull trout, cutthroat and wild trout. A BLM director hostile to environmental safeguards is far more likely to greenlight development that increases sediment, degrades water quality and depletes the cold, clean flows our rivers depend on.

If Pearce takes office, outdoor recreation—and the rural economies built around it—will not be spared. In Montana, hunting, fishing and outdoor recreation pump billions of dollars into local businesses, guiding operations, gear shops and main-street cafes. People travel here precisely because of the open space, healthy herds and functioning ecosystems that BLM lands help sustain. When those landscapes are sacrificed to short-term profit, we don’t just lose scenery; we lose jobs, identity and a way of life.

This is not a partisan issue, especially in Montana. Public lands are one of the few things we truly share: ranchers who graze allotments, tribal communities with cultural ties to these places, hunters and anglers who’ve long defended habitat, and families who just want a place to pitch a tent. A BLM director should be a careful, science-driven steward accountable to all Americans—not a politician with a history of dismissing environmental protections as red tape.

Montanans know what’s at stake. We’ve fought bad ideas before—land transfers, giveaway leases, rollbacks to bedrock conservation laws—and we’ve won when we stood together. Steve Pearce’s nomination should have been dead on arrival. The fact that he was even on the list tells us how vigilant we must remain.

Our outrage must translate into action: calling elected officials, packing public hearings, writing letters and voting as if our public lands are on the line. Truly, they are. The BLM needs a director who sees these landscapes the way Montanans do: as sacred ground, not a balance sheet.

Anything less is a betrayal of the wild inheritance we’re supposed to pass on.

Benjamin Alva Polley is a place-based storyteller. His words have been published in Rolling Stone, Esquire, Field & Stream, The Guardian, Men’s Journal, Outside, Popular Science, Sierra, and WWF, among other notable outlets, and are available on his website.