The biggest public secret in Montana is one that has no easy answer • Daily Montanan

I’ll let you in on a little media secret: One of the most asked questions we get is exactly the one we can’t answer.

Here’s the question we get a lot, and we’re not alone in our inability to get answers: How much does the state of Montana spend on attorneys defending itself in court?

I get the question. The number of jobs the state has single-handedly created for attorneys should help boost the state’s monthly jobs and unemployment rate statistics. For four years of Republican control in almost all aspects of government, no bad idea has been denied the opportunity of legislation.

A lot of nonsense flew through the Legislature to the open arms of Gov. Greg Gianforte, who seemed only too happy to add his signature for the sake of furthering the alleged Republican mandate. For example, the Montana Supreme Court has repeatedly affirmed its decision to keep abortion legal through the 1999 case Armstrong vs. State of Montana, which hasn’t seemed to dampen the Republican enthusiasm to pass bills to restrict the practice, and thereby re-test the resolve of the courts. That has literally cost the taxpayers of Montana millions by re-litigating that which was already well established.

The logic, if you’ll excuse the abuse of that word, is that even the lawmakers know much of what they’re passing runs contrary to case law and the Constitution. That doesn’t matter. Their own legal staff have expressed concerns through legal notes. That doesn’t matter either.

These are show-bills that demonstrate how committed Republicans are to their own policies and satisfying a riled-up base. What happens after that truly becomes a matter for the courts and the state’s treasury.

The danger and fallacy of a supermajority is the belief that just because Montanans have generally supported Republicans, they support every single position that Republicans coalesce around. There are notable exceptions, for example, support for public lands even though the GOP has tried to curtail our natural resources and access. And, of course, Montanans seemed repeatedly enthusiastic about marijuana, leading to a tug-of-war where the people won the right to weed and the state’s coffers filled with a different type of green, despite the GOP’s attempts at paternalism.

But the challenge with all these challenges is that the taxpaying Montana public is supporting a cottage industry centering on state litigation, but no one — and I mean no one — can say what that means for certain. In other words, how much is bad legislation costing us?

Montana Attorney General Austin Knudsen can hold onto his cowboy hat at this point: As much as he continues to add his name to any lawsuit that would seem to antagonize the Biden administration throughout the country, he’s got plenty of work here at home. And he doesn’t necessarily have a choice.

The Attorney General, by definition, is forced to defend the state, and by extension, the lawmakers who author and support some of these legally dubious bills, as well as the poor bureaucrats who are tasked with implementing them.

There have been so many lawsuits, it’s hard to track them all. Two years ago, after the contentious 2021 Legislature, we were tracking more than 40 lawsuits dealing with the state, the Gianforte administration and the courts.

One may think the exercise should be as easy as looking toward the state’s budget for the Montana Department of Justice and finding the literal bottom line. But that ignores how most people think the Montana Attorney General’s Office works and how it actually works in practice.

We get asked: How many lawsuits is the state fighting? How much has Montana spent on outside counsel? How much have these struck-down bills cost us?

We don’t know. We have asked repeatedly, and by “we,” I mean multiple members of the media.

The problem is one of budgets and categories. When asking the Legislative Auditor about it, they said the answer is not clear, and that Austin Amestoy of Montana Public Radio wrote a story about it a couple of years ago where the best he could do was estimate.

I have been and continue to be critical of the way Knudsen handles the Attorney General’s Office, but this time, he probably has a point.

Lawsuits come to his office in a variety of ways — from direct challenges to other officials getting sued in their official capacity, which then obligates the state’s legion of attorneys, housed under the Attorney General, to defend them. Which department specifically pays the bills depends on how the lawsuit is filed.

The other complicating factor, of course, is that sometimes the costs are borne by in-house counsel — that is, attorneys who work for Knudsen. Some other times, the counsel comes from the private sector.

And as anyone who has ever covered a lawsuit knows, the courts have their own pace, which can grind along for years, but the attorneys submit bills every month. Those attorney billing cycles may not overlap with budget years neatly. Now, compound that by dozens of cases and getting any sort of answer about how much we’re spending becomes nearly impossible.

So, this isn’t the case of government officials trying to “hide the ball” so as not to cause sticker-shock at the amount of taxpayer money we’re spending on attorneys.

Yet maybe the “how much” question, though, isn’t quite as important as the question: Why have we seen such a dramatic rise in challenged legislation? Or, what do Montanans have to show for all this legislation besides mounting legal costs?