A Republican-led legislative select committee created in the heat of an inter-branch conflict with the judiciary has identified several proposals it says could address the allegations of bias at the heart of the fight, including restrictions on judicial lobbying and clarifying the Legislature’s subpoena powers.
The proposals are part of a final report to the Legislature released Thursday by the Special Select Committee on Judicial Accountability and Transparency. The report summarizes — from the perspective of legislative Republicans — arguably the defining drama of the 2021 session, which began with a series of bills aimed at reshaping the judiciary and spiraled into a raft of subpoenas, subsequent litigation, and an appeal to the U.S. Supreme Court.
The committee’s Republican majority released an initial report that hit on similar points last year. The report issued Thursday restates much of the previous report’s content, but the legislative suggestions are new, as is a pointed allegation of dishonesty against Chief Justice Mike McGrath, who the report says “played a central role” in the saga.
“The Select Committee has several concerns about the operations, procedures, and policies of the judicial branch,” the new report reads. “Remedying these issues would help ensure the branch is functioning as it should in its judicial role and help it have the respect and confidence from Montanans that it should.”
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The report says the proposals are not necessarily endorsed by the legislators who sit on the committee, describing them only as possible remedies for the Legislature to consider this session.
The 10 pieces of potential legislation floated in the report include automatically disqualifying judges from sitting on cases involving legislation about which they’ve previously expressed opinions; preventing associations like the Montana Judges Association from lobbying using state resources; changing the appointment process of the Judicial Standards Commission, the five-member body with two sitting district court judges that fields complaints against the judiciary; and clarifying the Legislature’s subpoena powers in statute.
“Some of the potential solutions identified in our report could be implemented by the judicial branch internally,” said Sen. Greg Hertz, R-Polson, who chaired the select committee, in a statement. “I expect we’ll also see many potential solutions brought forward as legislation during the upcoming session.”
Judging by a review of bill drafts submitted ahead of the next session, which begins Jan. 2, Republicans, including Hertz, have plenty of appetite to pursue legislation on the judicial front. Though they’re short on specifics, the dozens of draft titles involving the judiciary include “Revise judicial recusal laws when parties made campaign contributions,” “Revise judicial standard commission appointments” and “Clarify when legislative subpoenas may be used.”
House Minority Leader Kim Abbott, D-Helena, one of two Democrats on the select committee, said Friday that Democrats were not asked to be involved in the final report and had no input.
“We think that the re-election of two incumbent justices in November speaks to the fact that Montanans approve of the independent Supreme Court and its role interpreting the Montana Constitution,” Abbott said in a text.
Republican suspicions of the judiciary are nothing new, though they’ve intensified as the party has expanded control in the Legislature and over statewide offices in recent elections. With Democrats relegated to a minority in the Legislature, the courts presents one of the few arenas where Republican-backed policies might hit a snag.
That dynamic reached a fever pitch in the 2021 session, starting with a high-profile legislative effort to give the governor direct authority to fill judicial vacancies. That bill was passed, signed, and almost immediately generated a legal challenge. McGrath recused himself from the case, as he had lobbied the governor’s office against the bill. His replacement, Judge Kurt Krueger, who had also opposed the bill, subsequently recused himself as well.
The Supreme Court ultimately ruled in favor of the bill’s constitutionality. But by that point a separation-of-powers conflict was already well underway.
Republicans took issue with the Montana Judges Association’s polling practices, saying they amounted to lobbying with state resources and also constituted “pre-judging” of legislation that might come before their court. McGrath and other judges have maintained that MJA’s lobbying activity is proper and designed to provide legislators with feedback from the judiciary about bills that might impact court functions, as permitted in the judicial code of conduct.
When court administrator Beth McLaughlin said she had not retained records of the email polls, a flurry of subpoenas from different sources ensued: to the Department of Administration, requesting McLaughlin’s records; to McLaughlin herself; to members of the Supreme Court. The subpoenas went to court, Republicans motioned for the entire Supreme Court to recuse itself from the proceedings — a request that was denied in all but one case by the court itself — and the justices quashed the subpoenas, arguing that lawmakers were exceeding their investigative authority, though not before reams of documents were released by the Department of Administration and then publicly disseminated.
In legal filings, attorneys representing McLaughlin and the judges have accused the Legislature of orchestrating a scandal to discredit the judiciary. Democrats on the select committee have made similar arguments.
Democrats released their own report last year, accusing Republicans in the Legislature and executive branch of leading a coordinated effort to discredit the judiciary. That report argued that Republicans were less concerned about faith in government institutions than about heading off the possible constitutional conflicts identified in a number of Republican-backed bills.
“Throughout the 67th legislative session, Republican leaders have been told by legislative attorneys the legislation they’re trying to pass violates our Montana Constitution,” the minority report reads. “Republicans know full well these bills will likely be held unconstitutional in the court, so Republicans in the Legislature conspired with the Governor’s Office to hack the judiciary’s records in an effort to smear and delegitimize the courts.”
The court has maintained that the proper venue to investigate complaints about judicial conflict is the Judicial Standards Commission, not the Legislature. According to this week’s report, Republican political operative Jake Eaton indeed filed at least one JSC complaint against all but one justice, though the commission has voted to dismiss all but one of those complaints.
Judge Mike Menahan, who chairs the JSC, told lawmakers last year that most complaints that come before the commission express disagreements about rulings rather than allegations of ethical misconduct, hence the high dismissal rate.
The report also accuses McGrath of misleading lawmakers and the public by maintaining that it’s “highly unlikely that judges would have actually made comments on whether something was constitutional or not,” even as certain judges expressed opinions about the constitutionality of legislation in private communications.
McGrath, in an emailed statement, said Friday that the judicial branch “has not had any contact from or with the select committee since April, just received the draft report yesterday, and will need time to review it before providing a response.”
The select committee will meet on Dec. 22 to hear public comment and adopt the report.
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