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Committee probing Montana judiciary adopts amended final report

The Montana Supreme Court hears an oral argument in Missoula in April 2022. Two seats are up for election this year.
Freddy Monares
Montana Public Radio/File photo
The Montana Supreme Court hears an oral argument in Missoula in April 2022. Two seats are up for election this year.

The Republican-led select committee formed late last session to probe — or, depending on who you ask, besmirch — the state judiciary voted Thursday to adopt an amended version of its final report to the Legislature.

The 4-2 party-line vote came after the chair of the Select Committee on Judicial Accountability and Transparency, Sen. Greg Hertz, R-Polson, eliminated language in the report accusing Montana Supreme Court Chief Justice Mike McGrath and a private attorney representing the court of lying to lawmakers, the press and public during a months-long inter-branch fight between the judiciary and legislative Republicans over subpoena power and court records.

“I don’t think it particularly added anything to the report,” Hertz told members of the committee, which comprises four Republican lawmakers and two Democrats.

The committee’s Republicans released their initial draft of the final report last week. In addition to rehashing GOP claims, the report accused McGrath and Randy Cox, an attorney for court administrator Beth McLaughlin during the subpoena fight, of misleading the committee.

In the days since, both McGrath and Cox sent letters to Hertz accusing the committee of libel and asking Hertz to retract or amend the report to remove references to, as McGrath put it, “my veracity.”

“Initially, I want to express dismay at some of the language used in the Report. No one in the Judicial Branch — no justice, judge or administrative staff — has lied or misled anyone regarding the issues raised in the Report,” McGrath wrote on Dec 21. “The lack of professionalism displayed here is astonishing and certainly does not comport with any sense of accepted legislative protocol.”

Hertz in committee Thursday did not mention the letters specifically, citing only “public comment.”

McGrath and Cox also disputed the basic claims at the heart of the saga — that members of the judiciary improperly lobbied against legislation affecting judicial functions last session and then conspired to prevent the Legislature from obtaining related records — noting that the Legislature’s arguments didn’t survive multiple rounds of litigation, which terminated with a failed appeal to the U.S. Supreme Court on Fourteenth Amendment grounds.

Though Hertz’s amendment Thursday removed references to McGrath lying from the report’s summary, subsections accusing McGrath and Cox of dishonesty in less specific terms remain. Cox told Montana Free Press Thursday he is disappointed to see that language included in the final report, but said it’s “too early to consider the question of litigation.”

The report identifies several possible legislative and rule changes related to lobbying practices, subpoena power and judicial discipline. While it says members of the committee don’t necessarily endorse those proposals, supermajority Republicans have filed numerous bill draftspertaining to the court and the Legislature’s investigative powers.

The committee’s Democrats, House Minority Leader Kim Abbott, D-Helena, and Sen. Diane Sands, D-Missoula, also delivered a report this week. It disputes the majority report’s claims and accuses Republicans of attempting to undermine the judiciary and its constitutional role by manufacturing controversy through innuendo, speculation and misrepresentation.

Committee Republicans voted down a motion Thursday to formally adopt that report.

Sands, who is retiring, noted to the committee that the votes she took Thursday will likely be the last of her three-decade legislative career. The new session — and with it a new senator in Sands’ seat — commences Jan. 2.

“I deeply believe in democracy and our democratic process, and over the three decades I’ve been involved in the Legislature, I have seen us go back and forth on all kinds of issues, respectfully dealing with each other. Sometimes you win, sometimes you lose, but you move forward, and you respect the process and we try to be consistent with our oath of office to uphold and support the Constitution,” Sands said. “It’s deeply troublesome that I think we are no longer doing that, that we are in fact attacking and trying to undermine the Constitution in very many ways, and I regret that my last vote and my last participation in committee is regarding that issue.”