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State GOP attacks Montana Supreme Court in mailer

Chief Justice McGrath responds to questions
GOP-Judiciary Attack.jpg
Posted at 1:55 PM, May 03, 2021
and last updated 2021-05-03 19:00:12-04

HELENA — The state Republican Party has sent a mailer attacking the Montana Supreme Court, saying the court needs to be investigated for “questionable activities” related to lobbying and its release of documents.

The mailer, sent late last week, is the latest salvo in the GOP’s assault on the reputation of the Montana judiciary – an effort also infused with the party’s attempts to exert more control over state judicial appointments.

Montana Supreme Court Chief Justice Mike McGrath also sent a letter Friday to Republican leaders of a committee investigating the judiciary, saying neither the high court nor the judiciary had violated any rules or laws regarding lobbying or e-mail procedures.

And, in another development, a state district judge has been named to replace McGrath on a key case before the Supreme Court, deciding the constitutionality of a new law giving Republican Gov. Greg Gianforte broader power to fill state judicial vacancies.

District Judge Matthew Wald of Hardin will join the other six Supreme Court justices in deciding the case. McGrath recused himself in late March because he had lobbied against the new law.

The court is deciding the constitutionality of Senate Bill 140 – which was signed into law by Gianforte in mid-March and sparked the current political battle between Republicans and the state’s judiciary.

Montana Supreme Court Chief Justice Mike McGrath.

The law eliminated a 50-year-old commission that screened candidates for appointment to fill vacancies on the Supreme Court and state district courts, instead allowing the governor to choose whoever he or she wants to appoint.

Republicans said the change was needed to allow Gianforte and conservatives more control over appointing judges.

The Montana Judges Association opposed the law, which was immediately challenged as unconstitutional, in a petition directly to the Montana Supreme Court.

Republicans have alleged that the court and the judiciary are prejudiced against the new law. They’ve sought and acquired internal court emails to attempt to prove that allegation.

They’ve also created a special legislative committee to investigate the courts in the coming months, approved $285,000 to fund the committee, and created a “special counsel” that will staff the committee and have broad investigatory powers.

The state Republican Party followed up these efforts with its mailer late last week, which says “The Montana Supreme Court must be investigated,” among other things.

It suggests the court is “hiding” something and says the court has blocked access to public documents, used “taxpayer resources” to lobby against bills it doesn’t like and violated the judicial code of conduct.

A party spokesman hasn’t yet responded to questions for details on these allegations.

Spenser Merwin, the party’s executive director, also declined to say how much the party spent on the mailer or how many copies have been sent.

Montana Democrats have denounced the GOP efforts as an attempt to smear the reputation of the judiciary, which likely will be asked to rule on the constitutionality of several key bills passed by the GOP-led 2021 Legislature.

Meanwhile, the Supreme Court said a final brief is due May 11 in the case challenging the constitutionality of SB140, from those who filed the lawsuit.

The suit challenging the law was filed by three former state and tribal officials, a delegate to the 1972 state Constitutional Convention and the Montana League of Women Voters.

The court also will rule on the legality of subpoenas issued by the Legislature, that sought a broad array of internal communication documents from the Supreme Court.

All seven Supreme Court justices did appear before the Special Joint Selection Committee on Judicial Transparency and Accountability on April 19, in response to subpoenas issued by the panel the previous week.

They answered some questions but said they will not comment on issues before the court.

The panel’s Republican chair and vice-chair, Sen. Greg Hertz of Polson and Rep. Sue Vinton of Billings, followed up that meeting with a list of questions about the court’s lobbying efforts, the actions of Court Administrator Beth McLaughlin and court e-mail policies.

McGrath addressed the questions in a two-page reply last Friday.

He noted that Supreme Court justices, state district judges and other judges are elected officials, who are excluded from lobbyist regulations.

“It has long been the accepted practice that state and local elected officials and respective staff members talk to legislators to support or oppose legislation, while acting in their official capacities,” McGrath wrote.

While he is a member of the Montana Judges Association’s legislative committee, which evaluates bills before the Legislature and decides whether to take a position on them, neither he nor any justices routinely take positions on or confer about such bills, he said.

“Justices make a sincere effort to refrain from involvement in or discussion of matters pending before the Legislature,” McGrath wrote.

He also said that McLaughlin’s coordination of the testimony by judicial staff and judges before legislative committees is not lobbying, because she has no personal contact with legislators.

Finally, McGrath said it’s not a violation of state email policy for members of the judicial branch to be discussing lobbying efforts on bills affecting the judiciary.

“Emails that address legislative participating are clearly related to our duties and responsibilities regarding public policy,” he wrote. “The (judiciary) has an obligation to inform the Legislature as to how proposed legislation affects (judiciary) operations.”