Senate bill would limit use of retired judges for constitutional matters; opponents urge caution over court capacity

Senator Jason Ellsworth introduced Senate Bill 20 to the Senate Judiciary Committee, describing it as an effort to ensure accountability when a sitting judge recuses from a constitutional matter. "What we want to do is make sure that if you're appointing a different judge it's not a retired judge so…that judge would ultimately answer to the public," Ellsworth said, framing the measure as intended to preserve electoral accountability.

Opponents included Al Smith of the Montana Trial Lawyers and Keaton Sunshine of Western Native Voice. Al Smith described his position as “soft opposition,” saying he was aware of only one instance where a retired judge decided a constitutional case and that decision was later overturned on appeal. He said district courts are underfunded and that retired judges can help move cases along rather than create delay.

Keaton Sunshine also registered soft opposition, citing strain on the judicial branch and concerns about efficiency. Online testimony from John Marshall urged withdrawal of the bill and framed it as part of a broader committee package he opposed; the presiding chair warned speakers to stay on the bill’s subject.

Ellsworth closed by reiterating the bill’s purpose: to avoid “games” where a retired judge decides constitutional issues that then bypass electoral accountability. He asked the committee for a due pass.

Why it matters: The bill addresses who may be assigned to decide constitutional questions in the event of recusal; supporters say ensuring accountable judges is important, opponents say limiting use of retired judges could worsen delays in underfunded trial courts.

What’s next: The sponsor asked the committee for favorable consideration. The transcript records extensive testimony and opposition but no committee vote on SB 20.