ACLU of Montana steps into challenge lawmakers’ ‘home court advantage’ law

Last week, Speaker of the Montana House of Representatives Brandon Ler tried out a new law passed in 2025  allowing the sponsor of a bill  challenged in court to move that legal challenge to their home court — literally.

Senate Bill 97 allows the sponsor of challenged legislation to move the legal tussle to a district court in his or her own county, regardless of where the case is originally filed. The law also says that lawmakers don’t have to prove bias or even have a reason, and that a judge must abide the transfer.

On Monday, the American Civil Liberties Union of Montana filed a brief with Broadwater County District Court Judge Michael Menahan, arguing the new law is unconstitutional because it creates the problem it says it resolves — as well as throws substantial hurdles in front of anyone challenging a law.

Menahan is presiding over a case filed by youth plaintiffs who allege laws Ler sponsored gutted environmental protections guaranteed by the Montana Constitution.

“SB 97 empowers the state and certain legislators to unilaterally shop certain lawsuits,” the court filing said. “Its aim is not subtle. It seeks to give private plaintiffs a burdensome and expensive climb when they challenge a new law, while seeking to give government defendants and legislative intervenors favorable terrain on which to defend such a challenge. This is the opposite of a law that promotes the appearance of neutral adjudication.”

The 2025 Legislature was a Republican-led effort with majorities in both chambers for the GOP. One of the overarching themes presented by the Republican leadership was a desire to reform and reformulate the state’s courts. However, by session’s end, only a handful of judicial reform bills made it to the governor’s desk, but that included SB 97.

During legislative debate, Republican lawmakers seemed to embrace the idea they were tilting the legal playing field by the switch, reasoning that a district court judge in a lawmaker’s home district may be more sympathetic than a judge elsewhere in the state.

The ACLU in its brief argues the new law is deficient on several levels, and a similar bill passed in Kentucky has already been struck down there. Moreover, attorneys for the ACLU said that SB 97 violates the state’s constitution by allowing the Legislature to usurp the power of the judiciary to control its own affairs, while also violating the equal protection clause by overtly trying to engineer a more favorable decision.

Using testimony from Republicans during debate of SB 97, Rep. Greg Overstreet, R-Stevensville, said the issue was simple: “This court in this particular county — Lewis and Clark — has an uncanny record of striking down controversial statutes.”

Sen. John Fuller, R-Kalispell, told fellow lawmakers he was sponsoring the bill because of “the so-called social agendas or cultural agendas. That’s where the constitutionality issues arise.”

“Neither sponsor identified any basis for concluding the courts were engaging in any impropriety when ‘striking down’ statutes; instead, they candidly conceded their aim, in enacting SB 97, was to move these cases to districts where legislation would be more likely to be upheld,” the court documents said.

Fuller even went further during testimony, saying a district court judge in the sponsor’s home district would be more likely to uphold a law because the politician and the judge shared a “constituency,” which would have the same beliefs.

When Sen. Andrea Olson, D-Missoula, asked Fuller during a hearing on Jan. 16, 2025, why lawmakers should get special judicial privileges, Fuller responded: “It is no more correct or morally just or legally justifiable to require the court of original jurisdiction to be … one district over another.”

Pointing to a line of decisions upheld by the Montana Supreme Court stretching back decades, the ACLU said attempts by lawmakers to disqualify judges by law or even by executive order has proven unsuccessful.

“By citing ‘forum shopping’ as the categorical justification for this rule, the Legislature effectively assumes that every judge in every other district is incapable of fairly adjudicating the case,” the ACLU documents said.

Accessibility to the courts

The ACLU challenge also raises the question of whether SB 97 violates the Montana Constitution’s protection that courts are open and available to all citizens. The court filing said SB 97 can now move cases hundreds of miles away, creating new costs and burdens for citizens, while treating the lawmakers differently.

Attorneys for the ACLU also allege that the law is a form of content-based expression, something illegal on its face because anyone who challenges a law passed by a Montana legislator is treated differently based on their viewpoint.

“A law is a content-based restriction on speech if ‘on its face,’ it ‘draws distinctions based on the message a speaker conveys. Such laws are presumptively invalid.’ When a law goes even further and ‘favors one speaker over another’ based on the specific motivating ideology or the opinion or perspective of the speaker,’ it becomes viewpoint discrimination,” the lawsuit said.

The legal brief points out that no other challenges are subject to this law — and only triggered if the legal case calls into question legislation passed by a lawmaker.

The ACLU of Montana also pointed out that lawmakers testified during debating the bill that the new law would “discourage the average person” from challenging the new legislation.

“There is, in short, no connection whatsoever between SB 97’s asserted anti-forum shopping purpose and its actual pro-forum shopping effect. It is as though a casino announced that it was going to stamp out cheating by handing every craps dealer a pair of loaded dice,” the brief argues.