Committee hears bill narrowing when courts can award attorney fees in veto-override cases (SB 38)

Senator Greg Hertz, Senate District 7, opened testimony for Senate Bill 38 during the Montana Senate Judiciary Committee hearing, saying the bill clarifies when attorney fees may be awarded in litigation tied to veto-override polls.

Hertz told the committee the current statute requires two findings to permit fee awards: an opposing party must have “prevailed” and the court must find the claim or defense was “frivolous or pursued in bad faith.” He said SB 38 would define when a party “prevails” in the specific context of cases in which a court has ordered a veto-override poll and the Legislature’s question is later resolved by that poll.

The bill drew opposition from John Marshall, who testified remotely. “You’re trying to adjudicate through legislation. You do not have the power to do that,” Marshall said, urging the committee not to pass SB 38. He argued the measure attempts to resolve questions about judicial jurisdiction and the standards courts must apply — matters he said are for the courts to decide.

Al Smith, identified in testimony as representing a Montana attorneys’ organization, appeared as an informational witness and answered questions about how attorneys’ fees are calculated in actions against the state. Committee members pressed the sponsor about whether the bill would unintentionally expand or limit courts’ authority on awarding fees and whether the bill’s changes could be read as creating jurisdictional rules that were previously addressed by courts.

Why it matters: The bill targets a narrow, high‑stakes area—litigation that compels a veto override poll and then seeks fees—but committee members warned that altering the statutory definition of when a party “prevails” could raise separation‑of‑powers and jurisdictional questions.

The hearing closed with the sponsor asking for a do-pass recommendation; no committee vote on SB 38 was recorded in the transcript.