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GOP Investigation Into Montana Judiciary Continues, Awaiting Final Court Orders

Montana Capitol dome.
William Marcus
Montana Public Radio
Montana Capitol dome.

GOP Investigation Into Montana Judiciary Continues, Awaiting Final Court Orders

Montana lawmakers continue their investigation into allegations of bias among members of the judicial branch. After a series of rapid developments, there’s a break in the action and it’s not clear what comes next. MTPR’s Shaylee Ragar shares her reporting with Freddy Monares.

FREDDY Shaylee, this investigation started at the tail end of the legislative session. Can you remind us how the Legislature came to investigate the judiciary?

SHAYLEE Sure. This started when an internal poll of the Montana Judges Association became public earlier this spring. It showed that some members of the judicial branch voiced support and opposition to bills moving through the legislature that could impact the judiciary. 

FREDDY So that poll was released and Republicans formed a special committee to investigate. Where are we now?

SHAYLEE Republican lawmakers say that judges and justices have been prejudging laws that will likely be challenged in court - in fact, nine lawsuits have already been filed against legislation that passed this session. 

Republican lawmakers haved issued subpoenas to the state’s seven Supreme Court justices and the court administrator ordering them to turnover internal communications about policy proposals.

The Montana Supreme Court decided to hold off on a final ruling on whether the lawmakers’ subpoenas for the justices and for the court administrator are lawful. But the justices did temporarily block the subpoenas.

After a flurry of court orders and some political sparring, we’re at a standstill waiting to see if the state supreme court justices will validate the subpoenas and turn over the emails to lawmakers. 

“Welcome to the lawyer’s life of waiting for judges to make decisions.” Anthony Johnstone, a law professor at the University of Montana, says.

According to Johnson, the proceedings up until this point have moved quickly because the subpoenas demanded it. Now, those subpoenas are on hold and the justices can take their time. 

FREDDY What do the justices have to say about the allegations of bias?

SHAYLEE The justices have adamantly pushed back against the assertion that they’re pre-judging cases. Chief Justice Mike McGrath says commenting on legislation that affects the inner workings of the judiciary is separate from evaluating the constitutionality of new laws. 

FREDDY Justice Jim Rice was the lone justice to take his subpoena to district court, rather than ruling on it himself as part of the state Supreme Court. What’s going on with his case?

SHAYLEE Lewis and Clark District Court Judge Mike McMahon temporarily quashed the subpoena for Rice last week. It’s not a final ruling, but in his order, McMahon wrote that the “subpoena does not represent a run-of-the-mill legislative effort but rather a clash between separate government branches over records of intense legislative political interest.”

McMahon wrote that lawmakers overstepped their authority by issuing the subpoenas to supreme court justices. He says the independent Judicial Standards Commission should be handling the allegations. 

FREDDY Judge McMahon noted the politics at play here. What are party members saying outside of their court filings? 

SHAYLEE Democrats have been condemning the investigation since it began, going so far as to call it a constitutional crisis as powers of the judicial and legislative branch collide. 

House Minority Leader Kim Abbott sits on the special committee investigating the judiciary. She says Judge McMahon’s order was clear. 

“Montanans expect for there to be checks and balances and separations of powers. And I think that’s what we’re seeing in the results in the judicial branch on some of the subpoenas — is a check against an overstep.” 

Abbott says she hopes the investigation ends here. 

FREDDY Is that likely?

SHAYLEE No. House Majority Leader Sue Vinton says the investigation will continue, but she’s not sure what the next steps are. She issued a statement after Judge McMahon temporarily halted Rice’s subpoena, saying it crystallizes the need for more transparency and accountability in the judicial branch. She said lawmakers are asking for public records that should be made available. 

Vinton also said it doesn’t seem right for state Supreme Court justices to rule on the matter. 

“When a court is ruling upon itself and subpoenas for its own records and documents, I mean, I don’t know how the average person couldn’t find that to be a little bit ridiculous,” she said.

FREDDY Republicans say the state Supreme Court can’t rule on this because they have a conflict of interest. Could lawmakers take their case to another court?

SHAYLEE Not outside of Montana. Johnstone, the law professor, says federal judges don’t have jurisdiction to rule on this matter. 

“The state judges are the only judges in the world who are bound by the Montana Constitution, and this is a case arising under the Montana Constitution.” 

FREDDY What comes next?

SHAYLEE Well, a lot of hurrying up and waiting to see if Montana’s Supreme Court justices will rule that they should turnover their communication records to lawmakers or if they’ll rule against it.

Lawmakers allocated themselves $285,000 to pay for their investigation and to hire outside counsel if that’s something they want to do. They haven’t done that yet. 

The special committee investigating the judiciary doesn’t have a meeting on the books right now, but they could call one at any time. It’s worth noting that there’s not really precedent in the state of Montana for an investigation like this, so it’s just not clear where we go from here. 

FREDDY A lot going on. While there’s a break in the action, thanks for breaking down where we are.
Copyright 2021 Montana Public Radio. To see more, visit Montana Public Radio.

Shaylee is a UM Journalism School student. She reports and helps produce Montana Evening News on MTPR.
Freddy Monares
Freddy Monares is a reporter and Morning Edition host at Montana Public Radio. He previously worked for the Bozeman Daily Chronicle, covered the 2017 Legislature for UM Legislative News Service and interned with the station as a student. He graduated from the University of Montana School of Journalism in 2017.