The Montana Supreme Court ruled Wednesday that plaintiffs in a successful court case challenging a 2021 election law are entitled to attorney fees.

Generally, Montana courts do not award attorney fees to the victors in lawsuits regarding constitutional questions, a precedent that was solidified in controversial campaign finance litigation more than a decade ago. But the ruling on Jan. 31 establishes that plaintiffs in certain constitutional cases are entitled to fees, something that attorneys in the original lawsuit say may dissuade the state’s attorneys from defending unconstitutional laws.  

“Today’s decision affirms a basic, but important principle: No one is above the law. And that means that when the government violates the Constitution, the people have the power to enforce constitutional rights,” attorneys Constance Van Kley and Rylee Sommers-Flanagan of Upper Seven Law and Raph Graybill of Graybill Law Firm said in a statement Wednesday.

The Supreme Court’s ruling stems from a 2021 lawsuit that challenged the constitutionality of a bill passed by that year’s Legislature under what’s known as the single-subject rule — that is, a requirement that most bills address only one subject. Senate Bill 319 began as a minor tweak to campaign finance law but was amended wholesale in the final days of the 2021 session in a special committee meeting that was closed to public comment. The new version of the bill restricted campaign activities in some settings, including college campuses, a distant departure from the proposal’s original text. 

The bill was signed into law, but in June of 2021, advocacy group Forward Montana and others challenged the law. In 2022, a district court ruled with the plaintiffs and permanently enjoined the enactment of the last-minute provisions. The state did not appeal that ruling. 

At that point, the plaintiffs moved to be awarded attorney fees. But the district court denied the request, citing precedent that “garden-variety” constitutional challenges generally are not deserving of attorney fees. It similarly cited a statute that says plaintiffs who prevail in challenges against the state are entitled to attorney fees only if the state’s defense was frivolous or in bad faith. In this case, the court ruled, the attorney general acted in good faith. 

Wednesday’s ruling addresses the appeal of that decision. 

“We conclude that attorney fees are proper in this case because of the process through which the unconstitutional sections of this bill came to be: an obviously unlawful bill adopted through willful disregard of constitutional obligations and legislative rules and norms,” Chief Justice Mike McGrath wrote for a 5-2 majority of the court. 

In regards to attorney fees, Montana courts follow the so-called American Rule, which McGrath describes as “absent specific statutory or contractual provisions, prevailing parties are generally not entitled to recovery of their attorney fees in prosecuting or defending an action.” 

(This is in contrast to the English Rule, which generally requires losers to pay attorney fees). 

The American Rule has some exceptions, namely the private attorney general doctrine, which holds that a private individual who brings a successful case that vindicates substantial legal rights and protects the public interest is entitled to fees, especially when the government entities that would usually defend those rights fail to do so. 

But Montana courts have construed this doctrine very narrowly, an attempt to avoid infringing on the separation of powers between the judiciary, legislative and executive branches, especially in light of 2012’s American Tradition Partnership, Inc. v. Bullock case. In that lawsuit — in hindsight, a watershed moment for Montana politics — a conservative interest group challenged a Montana law that said a corporation may not  “make an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party” on the grounds that the recent Citizens United ruling voided the law. The case eventually went to the U.S. Supreme Court, and American Tradition Partnership won. When the case came back to Montana, American Tradition Partnership moved for attorney fees.

The Montana Supreme Court, though, denied the request, holding that attorneys for both parties were arguing, in good faith, for important constitutional principles: On one side, then-Attorney General Steve Bullock was defending a law with century-long roots designed to prevent Copper King-style corruption; on the other, American Tradition Partnership argued that it had the right to free speech established in Citizens United. 

Since then, it has been exceedingly rare for plaintiffs in successful constitutional challenges in state court to receive attorney fees. 

But this case, McGrath wrote for the court, is different: “Appellants alone were vindicating important constitutional interests. The Legislature disregarded its constitutional limitations, and the Attorney General offered no substantive or constitutional interests in defense of these actions.”

The justices kicked the case back to the district court for consideration of the amount of attorney fees to grant the plaintiffs. 

The case has special resonance in Montana’s current political climate where laws passed by the state’s Republican legislative supermajority and signed by the state’s Republican governor routinely face legal challenges on constitutional grounds, often from private parties. 

“The government should defend the Constitution, and when it doesn’t, the government should pay,” Graybill, one of the attorneys in the case, told Montana Free Press.

In a dissent, Justices Jim Rice and Dirk Sandefur wrote that the plaintiffs in the American Tradition Partnership case “presented a far more appropriate case for an award of fees than the case made here,” and if the court didn’t award fees then, it shouldn’t now. The two justices also suggested that the majority was improperly using the doctrine to punish legislators for flouting their own rules. 

“The equitable nature of the [private attorney general doctrine] makes it critical that courts ensure it is not applied through a lens of judicial endorsement of the litigation, that is, granting fees where a court favors a plaintiff’s constitutional objectives, while rejecting fees where a court disfavors a plaintiff’s constitutional objectives,” the dissent reads. “Justice demands that all parties receive equal treatment under the doctrine.” 

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