Here’s where the Legislature’s investigation into the judiciary sits as the session nears its end

The 2021 Legislature may be winding down, with remaining priorities and obligations falling into place in what could be the penultimate week of the session, but at least one committee will be working past adjournment sine die.

That’s the Select Committee on Judicial Accountability and Transparency.

The panel, formed this month as part of the Legislature’s response to a separation-of-powers standoff that’s ensnared all three branches of government, will “no doubt” continue to meet into the interim, Sen. Greg Hertz, the committee’s chairman, said in a meeting on Thursday.

That’s because the committee’s attempt to subpoena the entire state Supreme Court and the Supreme Court administrator as part of a wide-ranging probe into alleged impartiality and poor public records management practices yielded only mixed results: Justices appeared before the committee over Zoom this week, but only to explain why, in general, they could not hand over the cache of potentially sensitive emails requested by Republican leadership.

“Because the session is winding down, and we haven’t received documents or responses to our subpoenas, this committee is no doubt going to continue to work into the interim,” said Hertz, R-Polson. “We’re going to continue the work with the subpoenas we have out there with (Court Administrator Beth) McLaughlin and see if we can resolve those. Also with the Supreme Court justices — I’d like to just resolve those between us and them. I don’t want to drag this out through the court system unless we have to.”

Exactly how the committee will continue its work is an open question. Hertz had initially planned to begin preparing a report summarizing the committee’s findings by this week, but told other members of the panel Thursday that he’d begin preparing a draft for next week. As most of the Supreme Court told the committee last week, there’s an ongoing legal proceeding over the strength of a legislative subpoena, an issue that came up amid litigation against Senate Bill 140. That legislation signed by the governor this session abolishes the Judicial Nominating Commission and gives him sole power to fill judicial vacancies.

Shortly after the case began, Chief Justice Mike McGrath recused himself after acknowledging that he had tried to sway that Governor’s Office from supporting the bill. His replacement, a district court judge named Kurt Krueger, also recused himself after Attorney General Austin Knudsen wrote in a filing that Krueger had responded to a poll about legislation this session issued by the Montana Judges Association with adamant opposition to SB140.

McLaughlin, the court administrator, revealed that she had deleted the poll results. Republican legislative leadership then launched an investigation into judicial misconduct and issued a slew of subpoenas, which in turn generated a series of enjoinders from the court, which argued that the emails and other documents requested contained privileged information.

Committee lays out path

So, in short, there’s a series of nesting legal issues that both a district court and the state Supreme Court still need to figure out. And it’s too late in the session for a push to pass new bills, at least beyond the ones reshaping the judiciary that legislative Republicans have already passed — including one the Senate approved on Thursday to elect Supreme Court justices by district.

“The courts are not representative bodies of government,” said Sen. Jen Gross, D-Billings, in arguing against House Bill 325, on Thursday.

Hertz said he’d want an appropriation to fund staff research over the interim into possible legislative solutions to the committee’s questions. Staff, he said, can “continue to do research and give us a little clearer picture on whether new legislation is required to ensure confidence in the impartiality of the judiciary and whether the judiciary is following state law, too.” 

He described on Thursday an outline of key points for the investigation: the use in the judicial branch of state time and resource for lobbying, compliance in the judiciary with public records law, compliance with the judicial code of conduct, public trust in the judiciary, and the authority of the state Supreme Court to enjoin legislative subpoenas issued to itself.

“I continue to be confused about what our goals are for this committee,” House Minority Leader Kim Abbott, D-Helena, said Thursday. Democrats, she said, are “frustrated” by what they see as a politically motivated attack on the judiciary — something they’ve labeled a power grab and a constitutional crisis — while Republicans say their true motivation is to root out partisanship in the court system. 

“It’s hard for me to let this go: We saw legislation to make judicial races partisan,” Abbott said, referring to House Bill 342. “That’s not making the court less partisan.”

“The nature of the Legislature is partisan,” responded Hertz.

“I view them as addressing what we perceive, what many of us perceive, as a very partisan court that we are attempting to make less partisan,” added House Majority Leader Sue Vinton, R-Billings, who also sits on the committee. 

Lobbying question

Much of the committee’s focus Thursday was devoted to whether it’s improper for the Montana Judges Association, an organization which McGrath described in a letter earlier in April to legislative leadership as primarily being involved in helping its member judges fulfill continuing education requests, to issue polls to its members on legislation that could come before the court. None of the justices on the high court respond to these polls when sent by the MJA, they testified, but the practice — and the broader issue of the court’s lobbying — has become a target.

Republicans said they wanted to find out whether MJA was lobbying using state resources, and if the organization’s opposition to specific bills constituted a judge “pre-judging” legislation that could come before the court.

In the letter, McGrath defended polling of judges and said the practice is long-standing.

“It is appropriate for judicial officers — those who sit on cases every day and manage the courts’ ever-growing caseloads — to apprise the Legislature of how its decisions may affect the functionality of the judicial system and impact Montanans. For many years the elected members of the judicial branch have worked through the Montana Judges Association to give the legislative body information important to the Legislature’s consideration,” McGrath wrote.

Longtime lawmaker Sen. Diane Sands, D-Missoula, agreed the practice is typical.

“It is entirely consistent with the work of the MJA to poll their members,” Sands said. “They have done it for decades.” 

Sands compared the MJA’s work to lobbying by other organizations of public employees, for example, the Association of Montana Troopers, which she said also polls its members.

“The president is a state employee,” she said. “There are many other organizations where sheriffs, county employees and law enforcement lobby on their time and come in here and make statements on their position.”

MJA this year registered support at the Legislature for funding requests and bills confirming new judges but came in opposed to SB140, the aforementioned HB325, and two other judiciary bills that died in this process.

One of the current lobbyists for the Judges Association is Ed Bartlett. He told the Daily Montanan that the MJA only issues polls on the stickiest of issues, ones on which a special MJA legislative committee can’t come to a clean decision. Typically, he said, the association only lobbies on funding issues, line-item requests in House Bill 2, the main spending plan.

“This session we did more polls than we ever have, but that’s because there were several bills that were of greater importance,” he said, adding that the association is in general weighing in on more non-budget issues than is typical. 

Bartlett said the association doesn’t have written policies on what issues it lobbies on, but it does have “tradition and practice.”

“Mostly the guidance I get comes from the legislative committee of the MJA,” he said. Sometimes he communicates with that committee directly; other times, he communicates with them through McLaughlin. 

The committee, he said, typically has five or six judges, one of which is a Supreme Court justice, though he wouldn’t say who without getting authorization first.

Bartlett said he’s had conversations with lawmakers about his duties in passing but not with anyone on the select committee. That doesn’t come as a surprise, he said — his read is that the committee is likely only interested in the MJA’s lobbying as a proxy for its broader complaints over judicial bias.

“It may or may not have anything to do with the association taking positions on legislation,” he said.