Seven judges, six lawmakers and SB140

All seven members of the Montana Supreme Court appeared via Zoom before a legislative panel on Monday out of apparent respect for a legislative subpoena — a rare move that seemed a surprise given that the court had previously ordered to temporarily disregard the same subpoena under which they appeared — but put up a generally unified front in response to questions from Republicans about judicial bias and the scope of the Legislature’s subpoena power.

“We’re here, and surprisingly enough, we’re happy to be here,” Montana Supreme Court Chief Justice Mike McGrath told members of the Joint Special Select Committee on Judicial Transparency and Accountability.

Be that as it may, the “quiet branch,” as Associate Justice Laurie McKinnon put it, had little to say that satisfied the committee in regards to a legislative probe into judicial bias prompted by litigation around Senate Bill 140, legislation signed by Gov. Greg Gianforte that would abolish the Judicial Nominating Commission and give the executive full discretion to fill vacancies in the courts.

“A judge’s view of whether to support or oppose a bill as a matter of public policy is by no means the same as an indication of how a judge may construe the statute or even whether the judge must decide its constitutionality,” McGrath said. “Like all citizens, the judge may hold personal views and opinions on a variety of subjects. The obligation of every judge is to set aside personal views and render decisions based solely on the law and the facts of a particular case.”

The Legislature, despite orders from the high court enjoining the requests for production, had issued a bevy of subpoenas to each of the justices and a court staffer instructing them to provide emails and other records that might contain the justices commenting on pending legislation, as well as to determine if the Montana Judges Association had been lobbying using state resources. Monday morning, Court Administrator Beth McLaughlin, who admitted to deleting the results of a poll seeking opinions on pending legislation including SB140 sent by the Judges Association, a lobby group for members of the judiciary across the state, declined to appear before the committee, citing the court’s order enjoining the Legislature’s subpoenas.

Sen. Greg Hertz, R-Polson, attending the meeting via Zoom as well, read off several questions that he would have asked McLaughlin into his camera, but nobody was on the other end to answer them.

“I have sought court protection from subpoenas served by the Legislature on me, as part of the judicial branch of government,” reads a letter from McLaughlin and her attorney to Hertz, who chairs the select committee. “The court pleadings set forth my position regarding disclosure of documents that are confidential and/or privileged and protected by the Montana Constitution and the laws of Montana.”

Democrats, who have attacked this process as a witch hunt and a power grab seeking to inject partisanship in the court and consolidate control under the executive throughout, came to McLaughlin’s defense in her absence.

“I want everyone to understand that the Supreme Court quashed that subpoena for Ms. McLaughlin,” said House Minority Leader Kim Abbott, D-Helena. “She is following a court order. I’m not sure what this committee is doing, if I’m being honest.”

But while most of the judges agreed to appear Monday — with one, Justice Dirk Sandefur, responding to the legislative subpoena in writing — they similarly did not produce documents requested in the subpoena, a cache that includes emails, phone logs, texts and other communication over a three-month period. Lawmakers also sought to understand how the court could rule on a subpoena for its own documents. One of the justices, Jim Rice, referred the issue of his subpoena to a district court in Helena, where a judge blocked the subpoena pending a hearing later in the month.

“The purpose and scope of the legislative subpoena issue is directly before this court, and I think it’d be inappropriate to comment further,” Justice Ingrid Gustafson said in response to questions from Hertz. 

Justice after justice, responses generally followed those lines.

“I have not done anything…to cause you concern or make you question our impartiality,” said McKinnon. “I have not prejudged any of your legislation.”

Republicans have argued that the Judges Association poll at the very least creates the possibility of prejudging legislation. The fact that two judges recused themselves after expressing negative feelings for SB140 — that is, McGrath and the district court judge he appointed to replace him — has only added fuel to general suspicion of the judiciary, which Republicans are vying to remake this session through a slew of legislation.

But all of the judges who testified Monday echoed a letter that McGrath sent to the Legislature last week: They did not respond to any poll on SB140 or any other legislation that could come before the court, and even if they had, the issue of whether a given judge believes that pending legislation is good public policy, or whether it would make administering the court easier, is separate from whether they believe it is unconstitutional.

“For many years, the elected members of the judicial branch have worked through the MJA to give the legislative body information important to the legislature’s consideration,” McGrath explained. “Judges are elected officials, and as such, we are authorized by statute to present issues to the legislative branch that pertain to policy issues relevant to the judicial branch.”

Typically, these issues relate to things like public pensions or administrative functions, McGrath said. That all being said, the justices in general do not respond to the polls from the MJA, McGrath said.

Sandefur, in his response to the subpoena, provided the Legislature with context but generally rebuffed the purpose of the inquiry and cited privacy protections over his personal communications. He wrote that he objected to the subpoenas as neither “was personally served on me, or anyone authorized to receive service on my behalf,” though he said he would comply due to his respect of the Legislature.

He reiterated that he did not respond to the poll, that it’s his routine practice to delete “non-essential email traffic” as per a Montana Department of Administration practice stemming from limited email storage space. He said he was involved in a standing advisory committee tangentially related to legislation dealing with the State Bar, and that he was copied on an email from McLaughlin about SB140 but that he did not respond and deleted the message.

Republicans on the panel thanked the justices for their attendance but said generally they did not feel as if their appearance had satisfied the subpoena. The Supreme Court, as several justices reminded lawmakers, still plans to rule on the strength of a legislative subpoena, and of course still needs to hear arguments on the constitutionality of SB140 itself.

Hertz said the committee will again meet on Thursday to begin drafting a report of the committee’s findings.

“I believe our work needs to continue,” said House Majority Leader Sue Vinton, R-Billings, in closing out the committee’s business for the day. None of the Republican members from the panel returned messages from the Daily Montanan on what the next steps were. 

What exactly they can do isn’t clear. The 2021 session is in its waning days, and introducing new legislation this session to alter the judiciary — beyond what’s already been proposed — would be unlikely to move in time without a major disruption to the body’s rules and procedures.

“I appreciate the justices coming before us and giving us quite a detailed presentation,” Abbott said. “I hope that we can close the door on this episode.”