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Judiciary committee advances SB21 after heated debate over writs of mandamus and separation of powers
Summary
SB21 would allow a legislative leader and an executive leader to jointly vacate a writ of mandamus. Sponsors framed it as a narrow fix after a disputed case; opponents including the State Bar, ACLU and judicial‑independence advocates warned it would erode checks and balances. The committee voted to give SB21 a do‑pass recommendation.
Sen. Barry Usher presented Senate Bill 21 as a narrowly tailored mechanism to vacate writs of mandamus in rare circumstances, recounting the dispute over Senate Bill 442 where he said the court ordered actions that could not be carried out. "Writ of mandamus is somebody who actually wrote in to me saying that, we can't do this," he said, and described the measure as allowing one legislative leader and one executive leader (a senate president or speaker plus the governor or attorney general) to sign a letter vacating a writ's punitive enforcement.
Opponents argued the bill crosses a constitutional line. Bruce Spencer of the State Bar said writs of mandamus are an "extraordinary" tool reserved to compel ministerial acts and warned the proposal "steps over the separation of powers." He asked whether an unsigned letter from the president or speaker is even a legitimate legislative act and emphasized existing judicial remedies such as Rule 60(b) motions and appellate review.
Civil‑liberties and advocacy groups made similar points. Henry Seaton of the ACLU of Montana said SB21 "erodes the ever important separation of powers" and would deny relief to Montanans who have no other adequate remedy. Anne Sherwood of Friends of the Third Branch said the bill "purposely disrupts the separation of powers" and noted a legislative legal review flagged the same constitutional concern.
Supporters, including the sponsor, said the bill is a proportionate check for exceptional circumstances and that the Legislature has the authority to change statutes. Sen. Usher told the committee, "We give [the court] the power, but don't abuse it," arguing the Legislature should retain some mechanism to respond when courts issue orders that practically cannot be carried out.
After extended questioning on remedies and constitutional limits, the committee voted by voice to give SB21 a "do pass" recommendation and forwarded the bill from Senate Judiciary.
What happens next: SB21 was advanced by the committee; opponents signaled they expect constitutional litigation and urged the full Senate to consider separation‑of‑powers implications.
