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Bill would limit courts' use of "legislative conduct" when awarding bad-faith fees, sponsors say
Summary
Sponsor Steve Fitzpatrick told the committee HB 365 would exclude legislative conduct from the bad-faith attorney-fee statute after the Montana Supreme Court's Ford Montana decision; the Department of Justice described practical problems defending legislation and opponents warned the change would remove accountability for rule violations.
Representative Steve Fitzpatrick opened House Bill 365 by saying the Montana Supreme Court's recent decision in the Ford Montana matter had treated the legislature's internal procedures as evidence in a bad-faith analysis and that HB 365 would remove "legislative conduct" from that inquiry. "This is for litigation conduct," Fitzpatrick said, arguing the statute was intended to police behavior in litigation — for example, filing frivolous motions or abusing discovery — not how the legislature conducts its business.
The Department of Justice agreed that Ford Montana complicated defense of legislative enactments because it requires the executive to examine the legislative process when defending a statute. Brent Mead of DOJ told the committee the decision places DOJ in an awkward position of assessing whether the legislature followed its own rules while defending the law.
Opposition and concern: John Marshall testified in opposition, arguing the bill would exempt lawmakers from the consequences of not following their own rules and create an unhealthy precedent. Multiple committee members probed how the private attorney-general doctrine and bad-faith standards would interact with the proposed change and whether the bill's language might preclude legitimate fee awards where litigation conduct warranted sanctions.
Scope and remedies: Sponsor Fitzpatrick and DOJ witnesses maintained that remedies remain available to vindicate constitutional defects and that the statute targeted litigation conduct (for example, dilatory litigation tactics) rather than content or constitutionality of enacted laws. Several legislators proposed narrowing amendments in discussion; sponsor said he did not believe amendments were necessary but acknowledged questions raised useful debate.
Next steps: The committee closed the hearing on HB 365 after extended questioning; no committee vote was recorded in the transcript.
