Sponsor seeks power to vacate mandamus writs after disputed court order; opponents warn of separation‑of‑powers risk

Sen. Barry Usher introduced Senate Bill 21, which would permit a paired executive and legislative leader (for example, the governor plus attorney general and the speaker or senate president) to jointly petition to vacate a writ of mandamus directed at a statewide official. Usher framed the bill in light of a specific recent dispute (the Senate Bill 442 controversy) in which courts ordered a poll and directed executive action that the sponsor said was impossible because the legislature was still in possession of the enrolled bill.

Opponents — including Friends of the Third Branch, the ACLU of Montana, ballot-process advocates and civic witnesses — said the bill sets a dangerous precedent that erodes separation of powers, weakens judicial remedies, and would permit elected officials to nullify court orders without judicial review. Legal witnesses warned that writs of mandamus are a fundamental common-law remedy to force ministerial action by officials; allowing a small set of elected officials to vacate such writs could deny petitioners any effective remedy and be used to block ballot initiatives or other ministerial duties.

Committee members extensively questioned the sponsor about constitutional authority, whether the bill would create a constitutional crisis, what guardrails or higher thresholds (more signatories or full legislative votes) might be appropriate, and whether alternative remedies (special session, appeal) exist. The sponsor said he is open to amendments raising the threshold of who must sign, and emphasized the bill is intended as a rare, narrowly used relief valve.