Republicans target alleged bias in Supreme Court crisis

HELENA — An ongoing dispute over Montana’s state court system, stemming from a new law that gives Republican Gov. Greg Gianforte direct power to fill temporary judicial vacancies, has embroiled the state judiciary in a mud-streaked partisan fight involving bias allegations, missing records, and subpoenas issued to Montana Supreme Court justices.

The increasingly fraught situation has seen legislative Republicans set up a committee to investigate the judicial branch and subpoena judicial records and staff as the court prepares to hear a challenge to the appointment law. Legislative Democrats have responded by accusing Republicans of manufacturing a “constitutional crisis” by smearing the judiciary in an effort to exert broader control over state government.

Republicans say they’re simply exercising appropriate legislative powers in an effort to hold the judicial branch accountable for internal emails in which judges have expressed opinions about pending legislation. However, GOP lawmakers, backed by the attorney general’s office, have picked the fight just as the court system faces a wave of likely litigation over aggressively conservative measures passing this year with the Legislature and governor’s office under unified GOP control for the first time in more than 15 years.

According to a Montana Free Press tally, the 2021 Legislature is on track to pass at least 11 bills that have been flagged by legislative attorneys as presenting potential conflicts with the state or federal constitutions, including high-profile measures that restrict abortion access and allow permitless concealed carry of firearms across much of the state, including college campuses. As of April 15, Gianforte had signed one of those, the constitutional carry bill, into law.

Opponents of those bills and other controversial measures have pledged to bring lawsuits that will subject the new laws to review by the third branch of state government, the nominally nonpartisan judicial system. The ACLU of Montana, for example, has said it will sue if two bills restricting how transgender youth can participate in high school sports and receive gender-affirming medical treatments become law.

Anthony Johnstone, a constitutional law professor at the University of Montana, said this week that it’s routine in constitutional systems for judicial scrutiny to follow legislative and executive action on new laws — and that it’s a feature, not a bug, when an independent judiciary occasionally differs with other branches about what government action is allowable under the state Constitution.

“One of the things that guarantees the rule of law is the separation of powers among co-equal branches, each of which has to agree what the law is before the government can do anything to anyone,” Johnstone said.

Even so, the state judiciary has for years been seen by Montana’s hardline conservatives as a left-leaning institution that limits their ability to advance their political vision for the state

Emails written in 2012 and obtained by the Great Falls Tribune in 2013, for example, showed right-wing Republicans maneuvering for control of that year’s Legislative session and sketching out a political strategy that included reshaping the state’s high court.

“How do we show progress on advancing conservative policies so we can engage in the long game strategy that involves changing the face of the Montana Supreme Court so that it does not find a constitutional block to every conservative policy initiative and will give us a better shot at redistricting in 10 years?” wrote then-Senate Majority Leader Jeff Essmann.

Montana’s redistricting commission, which is waiting on 2020 census data to begin its once-a-decade work, will redraw legislative district boundaries and potentially divide the state into two U.S. House districts, producing high-stakes political boundaries that have often been subjected to court challenges in past redistricting cycles. Essmann is one of two GOP members on the five-member commission. 

Republican lawmakers have made similar, if less explicit, statements about the state high court in legislative debates this year.

“I think it would help get our Supreme Court a little more aligned with our electorate,” Rep. Barry Usher, R-Roundup, said during a March hearing on House Bill 325, which would ask voters for approval to switch from statewide elections for Supreme Court justices to district-based elections.

Conservative interests and other groups have also spent heavily in an effort to influence Montana Supreme Court elections in recent years. 

Despite the increasing political pressure coming to bear on the state court, Johnstone said that, as a close legal observer, he doesn’t see evidence that it has become partisan in its rulings.

“We should only be worried about the judiciary when they’re getting the Constitution wrong or getting the cases wrong or when they’re reliably splitting on ideological grounds — and none of those things are true,” he said. “Even on the hard cases, the court is not dividing on ideological lines and it is relying on reasonable if contested readings of our Constitution.”

The 2021 Legislature has debated several bills that would affect the state judiciary, from HB 325 to a funding tweak for the judicial retirement plan.

One measure, House Bill 355, would have required Supreme Court justices and district court judges, currently elected on a nonpartisan basis, to run for office with a party affiliation. Another, House Bill 685, would have put a constitutional amendment before voters to reshape the Judicial Standards Commission by making a majority of its members non-attorneys appointed by the governor and giving the commission, which currently makes recommendations to the state Supreme Court, direct power over judicial discipline. Both HB 355 and HB 685 failed in floor votes.

It’s Senate Bill 140, though, that has become the flash point for the debate over the future of the Montana judiciary. The law, passed on party line votes and signed into law by Gianforte on March 16, eliminates the state Judicial Nominating Commission, which has historically vetted candidates and forwarded finalists for judicial positions to the governor when judges stepped down between election cycles.

Supporters of the bill, including Lt. Gov. Kristen Juras, argued the nominating commission has been nonpartisan in name only. Opponents said it was an essential check on the governor’s power over the composition of the judiciary.

Fill-in appointees would still be subject to confirmation by the Montana Senate, which the governor’s office has argued would restrain his judicial appointment power. Acting district court judges nominated by former Gov. Steve Bullock to serve in Helena, Great Falls and Bozeman, for example, are currently in limbo as lawmakers decide whether to scuttle their confirmations so replacements can instead be appointed by Gianforte.

SB 140 drew an immediate legal challenge from a bipartisan group of former state officials, including former Republican Bob Brown and Democrat Dorothy Bradley. That litigation puts the law’s future in the hands of the Montana Supreme Court.

Chief Justice Mike McGrath, who had lobbied against the bill, recused himself from that case, and on March 24 Acting Chief Justice Jim Rice appointed Butte-Silver Bow District Court Judge Kurt Krueger to serve in McGrath’s place.

However, judicial branch emails obtained by Republicans and shared with media outlets indicated Krueger had previously taken a position on SB 140 as part of an internal poll conducted by Montana Supreme Court Administrator Beth McLaughlin on behalf of the Montana Judges Association.

“I am also admantly oppose [sic] this bill,” Krueger wrote in a brief email response to the poll, including what appears to be the entire state judiciary on his response.

Republican strategist Jake Eaton, who served as Gianforte’s 2020 campaign manager and advised the 2020 campaign of Republican Attorney General Austin Knudsen, contacted Montana Free Press with a copy of the email the morning of April 1. 

Eaton said he believed Krueger’s comments appear to violate the state’s Judicial Code of Conduct, which generally requires judges to recuse themselves “in any proceeding in which the judge’s impartiality might reasonably be questioned.”

Eaton declined in an interview Thursday to say where he had obtained the email.

MTN News reported April 1 that Krueger said he would recuse himself after the existence of the email “was revealed.”

Attorneys representing the governor and attorney general’s offices also filed a court motion that same day asking that Krueger be removed from the case and requesting that court administrator McLaughlin produce information about how other justices had voted in the SB 140 poll.

“The Governor respectfully moves for a stay of this proceeding until such time as the Court can seat an impartial and independent judicial panel to decide this case,” they wrote.

The six remaining Supreme Court justices wrote April 7 that they would consider the SB 140 case without a seventh member. None of them had participated in the poll, they said.

Over in the Legislature, Senate Judiciary Chair Keith Regier, R-Kalispell, then issued a rare legislative subpoena April 8, asking that Acting Montana Department of Administration Director Misty Ann Giles, whose department stores the judicial branch’s emails, provide the legislative branch with nearly all emails McLaughlin had sent or received since the first day of the legislative session Jan. 4.

Giles, who was nominated to run the agency by Gianforte late last year and is awaiting Senate confirmation, responded with rare speed in order to comply with the subpoena’s next-day deadline. While similarly broad requests made by media organizations under Montana’s public records law generally involve protracted negotiations over which emails can be released without infringing on privacy rights and weeks or months of processing, McLaughlin’s attorneys say in legal filings that the department produced 2,450 documents on Friday, April 9.

McLaughlin filed an emergency motion in the SB 140 case over the weekend, asking the justices she works for to quash the legislative subpoena before more emails were produced. An attorney representing her argued that the broad subpoena threatened to expose confidential human resources information, and also argued that legislative branch subpoena power shouldn’t apply to judicial branch records.

The court issued an initial order putting a hold on the subpoena Sunday. However, the Montana attorney general’s office, representing the Legislature, told the court in a Monday letter that it would ignore that order.

“The Legislature does not recognize this Court’s Order as binding and will not abide it. The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary,” wrote Department of Justice attorney Kristin Hansen.

McLaughlin filed a separate cause of action seeking to rein in the Legislature’s records request late Monday.

Collections of emails apparently produced as a result of the initial subpoena response have found their way this week into the hands of multiple Montana media outlets, both mainstream news organizations like MTN News and explicitly conservative outlets such as NewsTalk 95.5 and the right-wing commentary site Montana Daily Gazette.

A source that provided some of some of the emails to MTFP confirmed they were among the documents released to the legislative branch by the Department of Administration April 9, before McLaughlin’s effort to quash the subpoena.

Those emails show judges participating in internal polls on SB 140 and other legislation, as well as some judges and Supreme Court justices discussing efforts to lobby against legislation they believe would compromise the judiciary. At times, judges make caustic remarks about specific bills or the political climate at this year’s Legislature.

In an email thread including McGrath and multiple district court judges discussing the Judicial Standards Commission bill, Judge Gregory Todd of Yellowstone County jokes about earning “combat pay” for testifying at the Capitol.

“It is an inquisition, plain and simple -9 member citizen committee w/ power to remove elected judges,” McGrath wrote in response.

In a separate thread, McLaughlin offers advice to the Bullock-appointed judges about navigating their confirmation hearings. In another, she passes several judges a link and a “thought you might enjoy this” endorsement of a Daily Montanan opinion column that argues, in part, that legislators backing SB 140 and other measures affecting the judiciary haven’t learned from the history of Montana’s “copper collar” era, when state politics were dominated by the Anaconda Company.

Republicans also fault McLaughlin for failing to voluntarily produce comprehensive records about some items, such as which specific justices responded to the SB 140 poll. They note that the state records retention policy generally requires agencies to maintain emails and other routine records for three years.

McLaughlin told legislative leaders in an April 8 email that she had provided lawmakers with “the information I have in my posession for SB140,” acknowledging that she hadn’t kept comprehensive records of the poll results, some of which were apparently provided by phone.

“I can be clear that I have no nefarious intent; instead I have to acquiescence [sic] to sloppiness,” she wrote.

Republicans have used the emails to argue that judges have compromised the integrity of the judicial system by exhibiting bias, and also questioned the use of public equipment and staff time to conduct work on behalf of the Montana Judges Association, which is chartered not as a state entity but as a private nonprofit.

As the dispute has translated into litigation, Republicans have also argued there’s an inherent conflict of interest in having the Supreme Court preside over litigation involving a key staffer and information about the conduct of its own members.

“The Court itself is witness to and has interest in the information sought by the subpoena in question,” DOJ attorney Hanson wrote in an April 14 filing.

The Montana Legislature’s Republican leaders cited the emails in public circulation this week as they spun up a full-fledged investigation into the conduct of the judicial branch. A select committee tasked with the investigation was announced Wednesday.

Legislative Republicans then announced another round of subpoenas Thursday, demanding correspondence from all seven Montana Supreme Court justices. The subpoenas, signed by Senate President Mark Blasdel, R-Kalispell, and Speaker of the House Wylie Galt, R-Martinsdale, also demanded that McLaughlin appear to take questions before the committee in person and turn over any state-owned computers used to poll justices on legislative issues.

“Recent revelations have raised serious concerns about the procedures and conduct of Montana’s judicial branch of government,” Blasdel and Galt said in a joint statement. “Out of respect for the judiciary and all who come before our courts, the Legislature is committed to ensuring and reinforcing the integrity of Montana’s judicial branch.”

The subpoenas, they said, were an effort to “to obtain clarity on where problems exist and inform what legislative reforms may be necessary to fix the situation.”

Democrats blasted the investigation Wednesday as a “witch hunt committee” designed to smear the judicial branch.

“Today’s action is just the latest attempt to undermine the Judiciary and our Constitution as Republicans look to take control of an independent branch of government,” Democratic Minority Leaders Sen. Jill Cohenour, D-East Helena, and Rep. Kim Abbott, D-Helena, said in a statement. “By forming this inquisition, Legislative Republicans are deepening the constitutional crisis that they’ve already manufactured in their effort to destroy the last remaining checks and balances on their power.”

The Supreme Court pushed back on the latest round of subpoenas Friday, issuing an order throwing the brakes on the legislative subpoenas. A section of the order specific to the subpoenas against the justices themselves, halting them “until the issues raised in this proceeding can be presented and adjudicated in the course of due process,” was signed by five of seven justices. The remainder of the order, including a section barring the Department of Administration from releasing further judicial communications for the time being, was unanimous.

The court also released a letter written by Chief Justice McGrath to legislative leaders on behalf of the court, seeking to explain the judiciary’s involvement in lobbying the Legislature.

“The Judicial Branch does not involve itself in the mine run of legislation — only those matters that directly impact the manner in which our court system serves the people of Montana who elect each of us,” McGrath wrote. “On such matters, it is appropriate for judicial officers — those who sit on cases every day and manage the courts’ ever-growing caseloads — to apprise the Legislature of how its decisions may affect the functionality of the judicial system and impact Montanans.”

McGrath also pushed back on the suggestion that it is an improper use of state email accounts for judges to participate in polls used by the Montana Judges Association to determine which measures it lobbies for or against on behalf of the judiciary. He also said that Supreme Court justices, as opposed to lower-court judges, don’t participate in those polls given the possibility that the new laws could come before them.

McGrath said that when he advocates on a specific bill on behalf of the court as Chief Justice, he recuses himself from resulting cases as he did with SB 140. He also acknowledged that he had “inappropriately indicated a personal preference to oppose HB 685,” the Judicial Standards Commission bill.

The Legislature’s investigative committee, formally the Special Joint Select Committee on Judicial Transparency and Accountability, held an initial organizational meeting early Friday afternoon. Its membership includes four Republicans — Sen. Greg Hert, Sen. Tom McGillvray, House Majority Leader Sue Vinton and Rep. Amy Regier — and two Democrats, House Minority Leader Kim Abbott and Sen. Diane Sands.

The group was also scheduled to meet Monday to hear subpoenaed testimony from court administrator McLaughlin, but it was unclear Friday whether that meeting would go forward following the new court order.

While legislative investigations are a staple of congressional politics in Washington, D.C., they’re rarer, but not unheard of, at the Montana Legislature. In 2018, for example, Republican legislative leaders, including then-House Speaker Austin Knudsen, appointed a Special Select Committee on State Settlement Accountability to investigate the use of employee termination settlements by the administration of Democratic Gov. Steve Bullock.

A memo prepared by the Legislature’s chief legal counsel to guide that investigation says the Legislature has broad legal power to conduct investigations, provided those investigations respect constitutional protections and are “exercised for a proper legislative purpose relating to enacting law.”

“An investigation instituted for political purposes and not connected with intended legislation or with any of the matters upon which a house should act,” the memo reads, quoting Mason’s Manual of Legislative Procedure, “is not a proper legislative proceeding and is beyond the authority of the house or legislature.”

This story was updated Friday, April 16, to reflect two new developments: a new Supreme Court order seeking to quash the legislative subpoenas and a letter sent by Chief Justice Mike McGrath to legislative leaders. It was also updated Sunday, April 18, to clarify which portions of the Friday court order were unanimous and which portions were signed by only some justices.