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1 SENATE BILL NO. 44
2 INTRODUCED BY D. EMRICH
3 BY REQUEST OF THE SENATE SELECT COMMITTEE ON JUDICIAL OVERSIGHT AND REFORM
4
5 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING AND CODIFYING LAWS REGARDING
6 THE THE SEPARATION OF POWERS DOCTRINE; DEFINING THE POWERS OF THE LEGISLATIVE
7 BRANCH, INCLUDING THE HOUSE OF REPRESENTATIVES AND THE SENATE; DEFINING THE POWERS
8 OF THE EXECUTIVE BRANCH AND EXECUTIVE BRANCH OFFICERS; DEFINING THE POWERS OF THE
9 JUDICIAL BRANCH; DEFINING THE POWERS OF THE BOARD OF REGENTS OF HIGHER EDUCATION
10 AND THE BOARD OF PUBLIC EDUCATION; PROVIDING DEFINITIONS; AMENDING SECTIONS 2-15-1505
11 AND 2-15-1507, MCA;AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.”
12
13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
14
15 NEW SECTION. Section 1.
16 (1) The powers of the LEGISLATIVE BRANCH, executive branch, and THE judicial branch are limited to
17 those enumerated in the Montana constitution and granted by law.
18 (2) The legislature may not enact a law that is contrary to the constitution or exercise
19 executive branch powers provided for in [section 5] or judicial branch powers provided for in [section 6].
20 (3) The executive branch may not exercise legislative branch powers provided for in [sections 2
21 through 4] or judicial branch powers provided for in [section 6].
22 (4) The judicial branch may not:
23 (a) exercise legislative branch powers provided for in [sections 2 through 4];
24 (b) amend the effective date of an act of the legislature before the law becomes effective;
25 (c) declare a law unenforceable as applied toward anyone other than the parties involved
26 in a case or controversy; or
27 (d) exercise executive branch powers provided for in [section 5].
28 (5) The power of the board of regents is defined as provided in [section 7]. - 2025
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1 (6) The power of the board of public education is limited as provided in [section 7].
2
3 NEW SECTI ON. SECTION 2.
4 CONSTITUTION VESTS THE LEGISLATURE WITH POWER THAT CANNOT BE EXERCISED BY OTHER
5 BRANCHES OF GOVERNMENT. THIS POWER IS EXERCISED THROUGH A LEGISLATURE CONSISTING
6 OF A SENATE AND A HOUSE OF REPRESENTATIVES. THE LEGISLATURE'S POWER INCLUDES BUT IS
7 NOT LIMITED TO THE AUTHORITY TO:
8 (1) increase the limit on the length of a subsequent legislative session;
9 (2) enact, amend, and repeal statutes;
10 (3) appropriate money;
11 (4) enact laws to ensure the continuity of government during a period of emergency
12 without regard for other provisions of the constitution;
13 (5) adopt a code of ethics prohibiting conflict between public duty and private interest for
14 members of the legislature and all state and local officers and employees;
15 (6) overrule the governor's veto of a bill as authorized by Article VI, section 10, of the
16 Montana constitution;
17 (7) make recommendations concerning a districting and apportionment plan before it
18 becomes law;
19 (8) make joint rules of the legislature;
20 (9) interpret the joint rules of the legislature without interference from any other branch of
21 government;
22 (10) regulate certain activities of the judicial branch, including:
23 (a) disapproving rules of procedure promulgated by the supreme court in either of the two sessions
24 following promulgation;
25 (b) as authorized by Article VII, section 6, of the Montana constitution, changing the
26 number and boundaries of judicial districts and the number of judges in each district; and
27 (c) as authorized by Article VII, section 11, of the Montana constitution, creating a judicial
28 standards commission and providing for statutory exceptions to judicial confidentiality; - 2025
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1 (11) refer measures to the people and regulate elections, including:
2 (a) referring any act of the legislature, except an appropriation of money, to the people for
3 aproval;
4 (b) referring proposed amendments to the Montana constitution to the people for
5 ratification;
6 (c) ordering a special election for initiative and referendum measures;
7 (d) specifying by law the requirements for residence, registration, absentee voting, and
8 administration of elections;
9 (e) providing, at the option of the legislature, a system of poll booth registration;
10 (f) ensuring the purity of elections and guarding against abuses of the electoral process; and
11 (g) as authorized by Article IV, section 4, of the Montana constitution, specifying additional
12 qualifications for any public office;
13 (12) monitor and exercise legislative oversight over other branches of government,
14 including:
15 (a) establishing a legislative council and other interim committees;
16 (b) auditing state and local government finances and programs; and
17 (c) investigating any subject relevant to the proper discharge of the legislature's function;
18 (13) specify by law the grounds for impeachment;
19 (14) select by law the tribunal to hear and resolve impeachment charges;
20 (15) tax, borrow, and otherwise raise revenue, including but not limited to:
21 (a) providing for property tax exemptions;
22 (b) providing independent appeal procedures for taxpayer grievances;
23 (c) as authorized by Article VIII, section 8, of the Montana constitution, authorizing state
24 debt;
25 (d) limiting debts of counties, cities, towns, and all other local government entities;
26 (e) ensuring strict accountability of all revenue received and money spent by the state and
27 counties, cities, towns, and all other local government entities; and
28 (f) providing for a unified investment program for public funds, a public retirement system, - 2025
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1 and state workers compensation insurance fund assets; and
2 (16) enact laws governing, and to be implemented by, the board of regents and the board of
3 public education.
4
5 NEW SECTION . SECTION 3.
6 THE HOUSE OF REPRESENTATIVES HAS SOLE POWER TO:
7 (1) judge the election and qualifications of its members;
8 (2) choose its officers from among its members;
9 (3) keep a journal;
10 (4) adopt, amend, repeal, and interpret rules governing its proceedings; and
11 (5) impeach public officers.
12
13 NEW SECTI ON. SECTION 4.
14 SOLE POWER TO:
15 (1) judge the election and qualifications of its members;
16 (2) choose its officers from among its members;
17 (3) keep a journal;
18 (4) adopt, amend, repeal, and interpret rules governing its proceedings; and
19 (5) confirm appointments made by the governor for the following:
20 (a) vacancies in the supreme court and district courts, as authorized by Article VII, section
21 8, of the Montana constitution;
22 (b) regents of higher education, as authorized by Article X, section 9(2)(b), of the Montana
23 constitution;
24 (c) members of the board of public education, as authorized by Article X, section 9(3)(b), of the
25 Montana constitution;
26 (d) commissioner of the department of labor, as authorized by Article XII, section 2(1); and
27 (e) all other officers provided for in the constitution or by law whose appointment or election is not
28 otherwise provided, as authorized by Article VI, section 8, of the Montana constitution. - 2025
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1
2 NEW SE CTION. SECTION 5.
3 CONSTITUTION VESTS THE EXECUTIVE BRANCH WITH POWER THAT CANNOT BE EXERCISED BY
4 OTHER BRANCHES OF GOVERNMENT. THIS POWER IS EXERCISED THROUGH A GOVERNOR,
5 LIEUTENANT GOVERNOR, SECRETARY OF STATE, ATTORNEY GENERAL, SUPERINTENDENT OF
6 PUBLIC INSTRUCTION, AUDITOR, BOARD OF REGENTS, AND BOARD OF PUBLIC EDUCATION. THE
7 EXECUTIVE POWER INCLUDES THE FOLLOWING:
8 (1) the authority of the governor to:
9 (a) faithfully execute laws;
10 (b) as authorized by Article VI, section 6, of the Montana constitution, fill a vacancy by
11 appointment in the office of lieutenant governor, secretary of state, attorney general, superintendent of public
12 instruction, or auditor;
13 (c) as authorized by Article VI, section 8, of the Montana constitution, appoint all officers
14 provided for in the constitution or by law whose appointment or election is not otherwise specified;
15 (d) as authorized by Article VI, section 9, of the Montana constitution, submit a budget to
16 the legislature setting forth in detail all operating funds, proposed expenditures, and estimated revenue of the
17 state;
18 (e )convene a special session of the legislature;
19 (f) as authorized by Article VI, section 10, of the Montana constitution, veto certain bills of
20 the legislature;
21 (g) grant reprieves, commutations and pardons, restore citizenship, and suspend and
22 remit fines and forfeitures subject to procedures provided by law;
23 (h) act as commander-in-chief of the militia forces of the state;
24 (i) require information in writing, under oath when necessary, from the officers of the
25 executive branch and officers and managers of state institutions;
26 (j) appoint a committee to investigate and report on the condition of any executive office
27 or state institution;
28 (k) as authorized by Article VII, section 8, of the Montana constitution, appoint a - 2025
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1 replacement for any vacancy in the office of supreme court justice or district court judge from nominees
2 selected in the manner provided by law;
3 (l)serve on the board of land commissioners;
4 (m) serve as an ex officio member of the board of regents and the board of public
5 education, with power to break a tie vote of the state board of education;
6 (n) as authorized by Article X, section 9, of the Montana constitution, appoint members of
7 the board of regents and the board of public education; and
8 (o) perform duties provided in the Montana constitution and by law;
9 (2) the authority of the lieutenant governor to:
10 (a) perform the duties provided by the governor;
11 (b) as authorized by Article VI, section 14, of the Montana constitution, assume the power
12 of the governor during a vacancy in that office; and
13 (c)perform any other duties provided by law;
14 (3) the authority of the secretary of state to:
15 (a) maintain official records of the executive branch as provided by law;
16 (b) maintain official records of the legislature as provided by law;
17 (c) as authorized by Article III, section 4, of the Montana constitution, administer the filing
18 and certification of citizen initiative petitions;
19 (d) as authorized by Article III, section 5, of the Montana constitution, administer the filing
20 and certification of citizen referendum petitions to approve or reject an act of the legislature;
21 (e) as authorized by Article III, section 7, of the Montana constitution, submit an initiative or
22 referendum to the qualified electors at the next regularly scheduled statewide election when a ballot measure is
23 declared invalid because the election was improperly conducted;
24 (f) as authorized by Article XIV, section 2, of the Montana constitution, administer the
25 certification and filing of citizen petitions calling for a convention to revise, alter, or amend the Montana
26 constitution;
27 (g) as authorized by Article XIV, section 9, of the Montana constitution, provide for the
28 filing of citizen initiative petitions to amend the Montana constitution; - 2025
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1 (h) as authorized by Article IV, section 8, of the Montana constitution, enforce certain term
2 limits through a ballot certification process;
3 (i) maintain plans filed by a districting and apportionment commission;
4 (j) as authorized by Article VI, section 10, of the Montana constitution, conduct a veto
5 override poll for certain acts of the legislature when it is not in session;
6 (k) keep the great seal of the state;
7 (l) serve on the board of land commissioners; and
8 (m) perform any other duties provided by law;
9 (4) the authority of the attorney general to:
10 (a)serve as the chief legal officer of the state;
11 (b) serve on the board of land commissioners;
12 (c) as authorized by Article VI, section 14, of the Montana constitution, inform the
13 legislature when the governor is unable to discharge the powers and duties of that office; and
14 (d) perform any other duties provided by law;
15 (5) the authority of the superintendent of public instruction to:
16 (a) serve on the board of land commissioners;
17 (b) serve as an ex officio member of the board of regents and the board of public
18 education; and
19 (c) perform any other duties provided by law;
20 (6) the authority of the auditor to:
21 (a) serve on the board of land commissioners; and
22 (b) perform any other duties provided by law;
23 (7) the authority of the board of regents to perform duties provided by law and [section 7];
24 and
25 (8) the authority of the board of public education to perform duties provided by law and
26 [section 7].
27
28 NEW SECTION. SECTION 6. - 2025
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1 CONSTITUTION VESTS THE JUDICIAL BRANCH WITH POWER THAT CANNOT BE EXERCISED BY
2 OTHER BRANCHES OF GOVERNMENT. THIS POWER IS EXERCISED THROUGH A SUPREME COURT,
3 DISTRICT COURTS, JUSTICE COURTS, AND OTHER COURTS AS MAY BE PROVIDED BY STATE
4 STATUTE. THE JUDICIAL POWER INCLUDES:
5 (a) the authority to:
6 (i) as authorized by Article II, section 7, of the Montana constitution, instruct juries in suits
7 for defamation;
8 (ii) as authorized by Article II, section 16, of the Montana constitution, provide a speedy
9 remedy for every injury of person, property, or character unless limited by a workers' compensation law;
10 (iii) as authorized by Article II, section 20, of the Montana constitution, oversee the
11 prosecution of criminal offense laws;
12 (iv) as authorized by Article II, section 29, of the Montana constitution, account for funds
13 received in litigation through eminent domain;
14 (v) as authorized by Article II, section 30, of the Montana constitution, hear confessions
15 regarding treason against the state;
16 (vi) as authorized by Article IV, section 2, of the Montana constitution, determine if a
17 person is disqualified from being a qualified elector because of a current sentence for a felony or an unsound
18 mind;
19 (vii) as authorized by Article IV, section 7, of the Montana constitution, oversee a
20 preelection challenge to the procedure by which an initiative or referendum qualified for the ballot or a
21 postelection challenge in the manner provided by law;
22 (viii) as authorized by Article VII, section 4(3), of the Montana constitution, try and determine
23 contested elections as provided by law; and
24 (ix) as authorized by Article V, section 10, of the Montana constitution, exercise jurisdiction
25 that is provided to courts by law;
26 (b) the authority of the supreme court to:
27 (i) as authorized by Article V, section 14(2), of the Montana constitution, select a fifth
28 member of the districting and apportionment commission when the four members of the commission fail to - 2025
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1 make a selection;
2 (ii) exercise appellate jurisdiction and issue, hear, and determine writs appropriate to appellate
3 jurisdiction;
4 (iii) exercise original jurisdiction to issue, hear, and determine writs of habeas corpus;
5 (iv) exercise original jurisdiction over the writs as specified by statute;
6 (v) exercise supervisory control over all other state courts;
7 (vi) make rules governing appellate procedure, practice and procedure for all other state
8 courts, admission to the bar, and the conduct of licensed attorneys;
9 (vii) enact rules of procedure, subject to disapproval by the legislature in either of the two sessions
10 following promulgation;
11 (viii) substitute a district court judge in the event of disqualification or disability of the chief justice or
12 a justice;
13 (ix) as authorized by Article VII, section 11, of the Montana constitution, retire any justice or
14 judge for a disability that seriously interferes with the performance of duties; and
15 (x) as authorized by Article VII, section 11, of the Montana constitution, censure, suspend,
16 or remove any justice or judge for willful misconduct in office, willful and persistent failure to perform duties,
17 violation of canons of judicial ethics adopted by the court, or habitual intemperance;
18 (c) the authority of a district court to:
19 (i) exercise original jurisdiction in all criminal cases amounting to felony and all civil matters and
20 cases at law and in equity;
21 (ii) issue all writs appropriate to its jurisdiction;
22 (iii) exercise the power of naturalization;
23 (iv) exercise jurisdiction delegated by a state statute;
24 (v) hear appeals from inferior courts as trials anew unless otherwise provided by a state
25 statute; and
26 (vi) review decisions of administrative agencies when provided by a state statute; and
27 (d) the authority of a justice court to exercise original jurisdiction that is provided by a state statute.
28 (2) As used in this section, the following definitions apply: - 2025
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1 (a) "Appellate jurisdiction" means the review of a decision of the district court or other lower court
2 as provided by a state statute.
3 (b) "Eminent domain" has the same meaning as provided in 70-30-101.
4 (c) "Felony" has the same meaning as provided in 45-2-101.
5 (d)"Original jurisdiction" means the authority of a court to hear, determine, and render judgment
6 on a case or controversy for the first time.
7 (e)"Person" has the same meaning as provided in 1-1-201.
8 (f)"Property" has the same meaning as provided in 1-1-205.
9 (g)"Supervisory control" means an extraordinary court remedy that is sometimes justified when
10 urgency or emergency factors exist making the normal appeal process inadequate, when the case involves
11 purely legal questions, and when one or more of the following circumstances exist:
12 (i)the other court is proceeding under a mistake of law and is causing a gross injustice;
13 (ii)constitutional issues of statewide importance are involved; or
14 (iii)the other court grants or denies a motion for substitution of a judge in a criminal case.
15 (h)"Treason" means levying war against the state or adhering to enemies of the state by giving
16 them aid and comfort.
17 (i)"Writ" means an order in writing issued in the name of the state or of a court or judicial officer.
18 (j)"Writ of habeas corpus" means a court order directed at the custodian of an individual
19 petitioner to produce the petitioner before the court for the purpose of determining the following:
20 (i) whether the petitioner is unlawfully imprisoned or restrained of liberty;
21 (ii) the reason why the imprisonment or restraint is unlawful; and
22 (iii) where and by whom the petitioner is confined o r restrained.
23
24 NEW SECTION. Section 7.
25 education -- definitions. (1) The board of regents and the board of public education are agencies of the
26 executive branch of state government. As such, they are required to enforce, within their respective spheres,
27 laws adopted by the legislature or by the people.
28 (2) The oversight of the Montana University System entrusted by the state constitution to the board - 2025
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1 of regents refers to the kind of oversight customarily exercised by executive branch officers over operations
2 assigned to them and does not extend to overriding state statutes. The board of regents' power regarding the
3 government, control, supervision, coordination, and management of the university system and other public
4 educational institutions is assigned by law.
5 (3) The duties entrusted by the state constitution to the board of public education are limited to
6 executive branch functions and do not extend to overriding state statutes. The board of public education
7 exercises general supervision over the public school system and other public educational institutions as
8 assigned by law.
9 (4) The rights of the people protected in the United States and Montana constitutions extend fully
10 to geographical areas under the control of the board of regents and the board of public education. The boards
11 are obligated to respect and protect those rights and to implement laws that protect or enhance them.
12 (5) As used in this section, the following definitions apply:
13 (a) "Board of public education" means the board of public education created in Article X, section
14 9(3), of the Montana constitution and 2-15-1507.
15 (b) "Board of regents" means the board of regents of higher education established by Article X,
16 section 9(2), of the Montana constitution and 2-15-1505.
17 (c) "Coordination" means the process of organizing people or groups so that they work together
18 properly and well.
19 (d) "General supervision" means general instructions are given and tasks are undertaken to
20 achieve required outcomes or objectives.
21 (e) "Government" means the authority to supervise, coordinate, manage, and control.
22 (f) "Manage" or "management" means an activity inclusive of control that is performed on a daily
23 basis.
24 (g) "Supervision" means regular monitoring of the administrative, clinical, or clerical work
25 performance of a staff member, trainee, student, volunteer, or employee on contract by a person with the
26 authority to give direction and require change.
27
28 2-15-1505, MCA, is amended to read: - 2025
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1 "2-15-1505.
2 created in Article X, section 9, subsection (2), of the Montana constitution consists of seven members
3 appointed by the governor and confirmed by the senate. The governor, superintendent of public instruction, and
4 commissioner of higher education are ex officio nonvoting members of the board of regents.
5 (2) The board of regents is an executive agency of government and as such is charged with
6 complying with and enforcing state law within the scope of its jurisdiction as provided in [section 7]."
7
8 Sectio n 2-15-1507, MCA, is amended to read:
9 "2-15-1507.
10 9, subsection (3), of the Montana constitution consists of seven members appointed by the governor and
11 confirmed by the senate. The governor, superintendent of public instruction, and commissioner of higher
12 education are ex officio nonvoting members of the board of public education.
13 (2) The board of public education is an executive agency of government and as such is charged
14 with complying with and enforcing state law within the scope of its jurisdiction as provided in [section 7]."
15
16 NEW SECTION. Section 2. [Sections 1 through 7 SECTION 1] are IS
17 intended to be codified as a new AN INTEGRAL part of Title 1, chapter 1, and the provisions of Title 1, chapter 1,
18 apply to [sections 1 through 7 SECTION 1].
19
20 NEW SECTION. Section 3. [This act] is effective on passage and approval.
21 - END -