Credit: Eliza Wiley/MTFP

HELENA — All seven Montana Supreme Court justices made virtual appearances Monday before a joint legislative committee investigating alleged bias in the judiciary, even as they maintained they weren’t necessarily subject to legislative subpoenas. The atypical exchange marked the latest development in a thorny power struggle between Montana’s legislative and judicial branches.

The hearing, conducted largely via Zoom, gave Republican lawmakers a highly public forum to question justices about the contents of now-public internal emails that show judges and judicial branch staff commenting, at times with unguarded opinions, on bills that would affect the state court system.

Justices, treading on what they said was unprecedented ground, generally declined to answer questions they said were too closely tied to two cases now before the court: a legal challenge to a judicial vacancy appointments bill that kicked off the intra-branch dispute, and a separate case in which the court’s top administrator has asked the justices to shield judicial records from the Legislature’s subpoena power. The judges also largely declined to turn over records of their emails and other communications demanded by lawmakers, saying that doing so would be premature as they weigh arguments about how far the Legislature’s subpoena power should extend.

Republicans, who have for years criticized Montana’s judiciary as an obstacle to implementing conservative legislation, argued that it isn’t fair for Supreme Court justices to preside over litigation that, in essence, comes down to determining the boundaries between legislative power and judicial privilege.

“I could kind of see this as a little perplexing. It’s kind of like you’re the umpire over your own game,” said Sen. Greg Hertz, R-Polson, the investigative committee’s presiding officer.

“But we’re not umpiring our game,” responded Chief Justice Mike McGrath. “We’re umpiring and trying to decide the basis of a legislative subpoena, which has never been decided. What is its breath? What is its scope? What do you have the authority to do? Those are the issues that are going to be presented in the very litigation that is presented here in this case. And to that extent, it’s not personal to any of the parties that brought the case.”

The afternoon committee hearing took place after more than two weeks of back-and-forth legal filings stemming from Senate Bill 140, which overhauls the process for filling vacancies on the bench. After Gov. Greg Gianforte signed the measure into law in March, it was immediately challenged in court by a group of former elected officials and delegates to the 1972 Constitutional Convention.

McGrath, who had lobbied Gianforte against the bill, recused himself from the case. McGrath’s replacement, District Judge Kurt Krueger, also recused himself after it emerged that he had voiced opposition to the bill in a poll of district court judges conducted by the court administrator, Beth McLaughlin. That poll, conducted on behalf of the Montana Judges Association, which lobbies for the judicial branch, had asked whether judges supported the bill. 

The conflict intensified after Republican lawmakers and state Attorney General Austin Knudsen sought thousands of pages of emails from McLaughlin related to pending legislation. Before that subpoena was quashed by the Supreme Court, much of that material was provided in a single day to lawmakers by the Department of Administration, which oversees the communications infrastructure of the state judicial branch. Some of those emails were provided to media outlets, which published stories about their contents.

Lawmakers then established the Joint Select Committee on Judicial Transparency and Accountability last week with the intention of investigating potential misconduct within the judiciary. Democrats have slammed the effort as a “witch hunt committee,” accusing Republicans of trying to undermine faith in the independent branch of government for political gain. 

Five of seven justices signed on to a portion of an April 16 order that halted the enforcement of the legislative subpoenas issued to individual justices. One other justice, Jim Rice, instead opted to ask a lower-court judge to step in, obtaining a ruling from Mike McMahon in Lewis & Clark County District Court that blocked his subpoena Monday.

The committee had also requested the appearance and records Monday morning of court administrator McLaughlin, whom Republican lawmakers criticized for distributing the poll for the Montana Judges Association and failing to retain comprehensive responses from district court judges, which were sent by email and phone. In an email to the committee Monday morning, McLaughlin said she had been advised by her attorney not to appear since the Supreme Court put a hold on enforcement of the Legislature’s subpoenas. She also said she fully intends to comply with court orders once the Montana Supreme Court or the U.S. Supreme Court issues a ruling in her case.

Republicans repeatedly raised McLaughlin’s missing records as cause for concern during Monday’s proceedings. State records retention policy generally requires agencies to maintain emails and other routine records for three years.

One Supreme Court justice, Dirk Sandefur, told lawmakers in a Monday letter that he has routinely deleted “non-essential” emails from his state inbox for nearly two decades because the email system maintained by the Department of Administration “allocates only a small amount of individual email account space” before filling up and prompting users to delete old emails to make space for new ones.

“I have always assumed that MDOA complies with all state law and policies regarding judicial branch email communication,” he wrote.

Justices said their cooperation with the committee Monday was an attempt to work with lawmakers in good faith, despite the unresolved issue of legislative subpoenas.

“I respect and acknowledge the authority of this body,” said Justice Jim Shea, echoing comments from his colleagues. “This is an unusual circumstance. We’re in kind of uncharted waters here. There is an issue regarding the purpose and scope of the legislative subpoenas that is presently before the court. So that does constrain somewhat my ability to answer questions.”

Monday’s inquiry from four Republican lawmakers on the committee explored a range of concerns about the ability of the judicial branch to be impartial and fair when assessing laws recently passed by the Legislature. The two Democrats on the committee, Sen. Diane Sands, D-Missoula, and House Minority Leader Kim Abbott, D-Helena, did not ask questions during the afternoon session.

Hertz said the investigation is justified because Montanans expect an impartial and unbiased judiciary and because some of the emails include judges’ statements about pending legislation, content he suggested may violate the state’s Judicial Code of Conduct

“A number of legislators are concerned, and members of the public are concerned,” Hertz said. 

Shea and other justices said they did not participate in the poll and regularly make extensive efforts to abide by ethical standards, such as limiting their extracurricular activities and public speaking engagements to avoid the appearance of impropriety. McGrath said judges’ internal expression of opinion on the public policy merits of a bill should be considered as distinct from passing judgment on whether a law is permissible within constitutional bounds. 

“It would be irresponsible for the judicial branch not to inform the Legislature on proposals that directly affect the court system and how it functions. Those policy decisions and adjudication of a legal dispute occupy completely separate spheres,” McGrath said. “Like all citizens, a judge may hold personal views and opinions on a variety of subjects. The obligation of every judge, however, is to set aside those personal views and render decisions based solely on the law and the facts of a particular case.”

Hertz and other committee members, however, continued to take issue with the idea that judges had been polled on public policy. They also questioned whether it was proper to use state emails, rather than personal accounts, and McLaughlin’s administrative assistance on behalf of the judges association, which is chartered as a non-governmental, nonprofit organization.

In addition to discussions about the vacancy appointment bill, the emails under scrutiny show McGrath and lower court judges using sharp language about a proposal that would have reshaped the composition of Montana’s Judicial Standards Commission to give it direct power over judicial discipline and make a majority of its members non-attorneys appointed by the governor.

District Court Judge Randall Spaulding of Roundup called that proposal, House Bill 685, “likely unconstitutional in its inception” in one of the internal emails. In another, McGrath said giving a citizen-majority body direct power to remove judges amounted to “an inquisition.”

McGrath acknowledged in a public letter last week that he had “inappropriately indicated a personal preference to oppose HB 685,” but said Monday that the bill “greatly disturbed me, and still does.” Responding to general discussion among judges about bills, however, McGrath downplayed the significance of the “colorful comments” exchanged in email threads, saying he did not see the issue as a problem. 

Throughout rounds of questioning, McGrath and other justices often sought to answer lawmakers’ probes with lengthy explanations about the judicial branch’s operations and ethical guidelines. The hearing at times mimicked a particularly tense civics lesson, with justices acknowledging the awkwardness of appearing in the spotlight of a legislative investigation. 

“The judiciary in general is the quiet branch of government,” Justice Laurie McKinnon said. “We don’t reach out and touch litigants … We act on litigation that’s in front of us. And this is a highly unusual forum right now to be in.”

Lawmakers on the committee said they plan to compile a report on their investigation this week and meet again Thursday. 

latest story

Making the case for public pre-K

Another legislative defeat this spring left Montana with the dubious title of a “preschool desert.” Yet advocates of early childhood education continue to argue the case for a state-funded public preschool model using data gleaned from recent pilot programs.

Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.

Eric Dietrich is a journalist and data designer and the founder of the Long Streets economic reporting project. His reporting focuses broadly on Montana’s governance and economic opportunity, with particular focus on the state budget and tax policy. He also contributes data reporting across the MTFP newsroom. Before joining the MTFP staff in 2019, he worked for the Great Falls Tribune, Bozeman Daily Chronicle, and Solutions Journalism Network and also earned an engineering degree from Montana State University. Contact Eric at edietrich@montanafreepress.org, 406-465-3386 ext. 2, and follow him on Twitter.