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MT GOP lawmakers extend, widen investigation of judiciary

Create `special counsel' with broad powers
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Posted at 6:33 PM, Apr 27, 2021
and last updated 2021-04-28 10:10:37-04

HELENA — Legislative Republicans took more actions Tuesday to investigate the Montana Supreme Court and state judiciary for alleged bias – including the creation of a “special counsel” who can scrutinize “any … institution of state government.”

They also voted to extend and finance a legislative committee that will guide the investigation, for another two years.

And, the committee sent a pointed letter to Supreme Court Chief Justice Mike McGrath, asking him to explain the high court’s role, if any, in lobbying by the judiciary on bills before the Legislature.

“The committee is deeply troubled by some of the inconsistencies between your public statements … and the contents of the publicly available e-mails,” said the letter signed by its chair and vice-chair, Sen. Greg Hertz, R-Polson, and House Majority Leader Sue Vinton, R-Billings.

The Supreme Court declined to comment, noting that it has a pending case on the legality of legislative subpoenas used to obtain some judiciary e-mails and request other internal communications documents.

The court has blocked those subpoenas while it decides the case.

Tuesday’s actions are the latest development in a month-long assault on the reputation of the Montana judiciary by Republicans at the Legislature – with some help from Republican Attorney General Austin Knudsen and the administration of Republican Gov. Greg Gianforte.

They’ve sought and acquired thousands of emails from the Supreme Court, alleging that the high court may have expressed bias against bills before that Legislature – and that may be challenged in the court as unconstitutional.

The law that began the fight is Senate Bill 140, passed last month, that got rid of a 50-year-old commission that screened applicants for state judicial vacancies and instead gave appointment power entirely to Gov. Gianforte.

That law has been challenged as unconstitutional and is currently before the Supreme Court.

Chief Justice McGrath recused himself from the case, saying he’d expressed an opinion on the law. Other justices, who appeared before the Select Committee on Judicial Accountability and Transparency on April 19, said they had expressed no opinion and did not answer polls on bills by the Montana Judges Association.

Republicans have not accepted that explanation, and say they want to examine further internal documents.

Democrats on the six-member committee have denounced the GOP effort as an attempt to publicly denigrate the judiciary before it begins ruling on the many laws passed during the session that Democrats say are clearly unconstitutional.

“There’s a separation of powers in Montana, as well as nationally,” state Sen. Janet Ellis, D-Helena, said Tuesday. “I think this committee was set up to try to impact the reputation of the judiciary.”

Republicans began the day Tuesday by inserting the “special counsel” language into House Bill 483, which creates some other new staff for the Legislature as well. The full Legislature later passed the bill Tuesday.

The special counsel – an attorney – will be appointed by the Republican speaker of the House and Senate president, and will have the power to “investigate state governmental activities” and examine “all records, books, and files of any department, agency, commission, board or institution of the state of Montana.”

He or she also will have the power to issue subpoenas, call and depose witnesses, hold hearings and administer oaths – if assigned to a legislative committee.

Hertz, the chair of the select committee, said the counsel would be assigned to the committee.

Republicans also added $285,000 to the session’s main budget bill, to finance the select committee for the next two years. Hertz said the panel would issue a report Thursday morning, outlining what it intends to investigate in the coming months.

The committee’s letter to McGrath also gave a flavor of at least part of the investigation, asking the chief justice about whether he was involved in directing the lobbying efforts of the Montana Judges Association, and whether the Supreme Court justices confer on bills before the Legislature.

The MJA is the lobby group for the state’s district judges and has taken positions on bills, polled its members on bills, and had its lobbyists and individual judges appear at committee hearings on bills.

The MJA opposed the bill that gave Gianforte power to make judicial appointments directly, without any screened candidates.