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Republican lawmakers adopt report on investigation of Montana judicial branch

Montana Supreme Court
Posted at 8:05 PM, Dec 22, 2022
and last updated 2022-12-23 09:51:12-05

HELENA - On Thursday, Republican state lawmakers finalized a report on the state judiciary, more than a year after the start of an investigation over claims of bias.

However, Democrats and the judicial branch have pushed back strongly against the conclusions.

At the final meeting of the Montana Legislature’s Special Select Committee on Judicial Accountability and Transparency, members approved the report on a 4-2 party-line vote.

The document accuses judicial branch representatives of improperly mishandling public records and expressing opinions on bills whose constitutionality could eventually be decided by the courts.

“I think the overall goal here was to make sure that we have a fair and impartial justice system in Montana,” said Sen. Greg Hertz, R-Polson, who chaired the committee. “I think it's important to everyone in Montana.”

This report is just the latest step in a long-running dispute between GOP legislative leaders and state judges. It includes sharp criticisms of judges — particularly Montana Supreme Court Chief Justice Mike McGrath — and recommendations for changes to rules on when judges must recuse themselves from cases and how state government emails are preserved.

Republicans on the committee decided Thursday to make minor adjustments to the draft report, originally released last week. They removed specific language saying McGrath and an attorney for state court administrator Beth McLaughlin had lied about these issues, but kept in statements that they had “misrepresented” or “misled.”

Both McGrath and the attorney’s law firm had submitted letters to the committee, accusing them of making libelous allegations in the report.

Hertz told MTN that he decided to remove “judgmental comments” in the report, but he contended that the allegations that remained were supported by evidence.

Democratic committee members said their input wasn’t included in the report, and they offered their own “minority report,” in which they called the majority’s conclusions a “partisan attack on Montana’s independent judiciary.”

“I think it was an unprecedented political action to go after the Montana Constitution and the judiciary,” said Sen. Diane Sands, D-Missoula. “Those are the pillars of democracy in our country.”

The issues date back to the 2021 legislative session, when Republicans criticized the Montana Judges Association for conducted polls, asking judges their opinion on proposed bills the Legislature was debating — including one that gave Gov. Greg Gianforte greater authority to appoint judges. GOP leaders argued that practice created concerns about due process and impartiality when lawsuits challenged those bills as unconstitutional.

Legislative leaders used their subpoena power to obtain thousands of internal court emails from McLaughlin, looking for information on judges’ discussions about bills. They said the request came after McLaughlin had reported deleting some of the relevant emails.

In August 2021, the Montana Supreme Court quashed the subpoenas and ordered the records returned, ruling the request exceeded the Legislature’s authority. Attorney General Austin Knudsen appealed that decision to the U.S. Supreme Court, arguing it was inappropriate for the state court to rule on the case since it dealt with its own policy and employees. The high court declined to intervene.

The committee’s majority report says accountability for judges is “opaque at best and insufficient at worst,” and it laid out ten “potential options for the Legislature to consider” in response. They included automatically disqualifying judges from hearing a case on a bill if they’ve expressed an opinion on it, updating policies on when state government emails must be retained, making changes to the policies of the commission that handles judicial ethics complaints and clarifying the Legislature’s subpoena powers.

In his letter to the committee, McGrath said the report “repeated old, inaccurate and inappropriate allegations.” He defended the judicial branch’s actions, saying there was a distinction between a judge commenting on a policy issue and predetermining the legal merits of a bill. He said the report’s recommendations often mirror judges’ existing rules for ethical conduct, and that the judicial branch has already adopted new policies on email retention.

The Missoula law firm Boone Karlberg, which represented McLaughlin, said in its letter that all of its attorney’s actions were proper, and that the Legislature had accessed records without ensuring private information was kept private. They said the committee’s report was “sour grapes of the worst kind.”

Sands told MTN she saw the majority report as a “blueprint” for changing the Montana Constitution after judges blocked several GOP-supported bills as unconstitutional over the last two years.