A Republican-led legislative probe into alleged bias and improper lobbying by members of the judiciary released a draft report of its findings on Wednesday. That report largely restated arguments from the panel’s initial meetings that the Supreme Court was pre-judging bills likely to face legal challenges through polls issued by a lobbying organization representing district court judges.
The Special Joint Select Committee on Judicial Transparency and Accountability released the 21-page report ahead of its next meeting at 8 a.m. Thursday, when Sen. Greg Hertz, R-Polson, the panel’s chair, will present the report’s findings and field public testimony.
The Legislature created the joint committee this month as part of a conflict with the judiciary branch stemming from Senate Bill 140, legislation signed by the governor that would abolish the Judicial Nominating Commission and give the executive the sole ability to fill judicial vacancies. The law was almost immediately challenged in court, and the Legislature quickly voted to intervene.
Republicans have honed in on the practice of polling judges on bills that could come before the court as particularly problematic. So far, the committee has been busy, issuing subpoenas to all seven of the sitting Montana Supreme Court Justices and the court administrator, Beth McLaughlin, who catalyzed the investigation when she admitted to deleting the results of the polls. The use of polls entered the discussion after a filing from Attorney General Austin Knudsen on behalf of Gov. Greg Gianforte.
Democrats, including those sitting on the committee, say they view the probe as precipitant to a constitutional crisis and evidence of a coordinated attack on the judiciary that, in conjunction with several bills this session that reshape the court system, could pave the way for a conservative takeover.
The initial findings in the report focus on the lobbying activities of McLaughlin, Chief Justice Mike McGrath and Montana Judges Association President Gregory Todd, who is also a district court judge in Yellowstone County.
In the report, the select committee outlined its case that McLaughlin and other members of the judiciary used their state-provided email and spent work-time working on lobbying and legislative issues, things they say are prohibited by law and policy. Moreover, the judges and the courts have also failed to keep deleted email and largely rebuffed the Legislature’s subpoenas, further frustrating lawmakers.
Finally, the report recommends the special joint committee continue to meet through the interim and report back to the 2023 Legislature, raising the possibility that as the fate and function of the courts and judicial appointments wind their way through Montana courts, so too will the committee continue to keep investigating the judiciary, with plans to suggest legislative changes during the next Legislative session.
“I find this entire process incredibly sad and harmful to the judiciary, and ultimately, to our constitutional form of government. Weakening the courts and undercutting the judicial system is beyond harmful to democracy and the rule of law,” said McLaughlin who has worked for the judicial branch for 20 years, including 11 as the court administrator. “No one benefits from this.”
Requests for comment from McGrath were not returned on Wednesday.
The release of the committee’s report comes as Republican legislators voted to approve an amendment attaching $285,000 in funding for the probe to continue into the interim for the next two years to the Legislature’s main spending plan, House Bill 2. And on Wednesday, lawmakers voted for language in a joint rules resolution authorizing the committee to “investigate and examine state governmental activities and may examine and inspect all records, books, and files of any department, agency, commission, board, or institution of the state of Montana.”
The rules would also allow the committee to contract with a special counsel.
“The legislature doesn’t need that information,” said Rep. Robert Farris-Olsen, D-Helena, who added that giving the committee the authority to hire a special counsel “subverts” the normal appropriations process.
“We don’t need to have a select committee on judicial transparency, because there’s nothing wrong,” said Farris-Olsen, himself an attorney. He said he hasn’t heard of any case that would suggest judicial bias.
“It’s funny how we shouldn’t vote for this because there’s nothing to see here,” responded Rep. Derek Skees, R-Kalispell.
The report shows extensive communication among McGrath, some judges, McLaughlin and MJA lobbyists. Neither McGrath nor McLaughlin have ever denied working with the association, explaining that they often raise concerns with legislation through the MJA, and that when the lawmakers are not in session, the organization provides mandated continuing education.
“These emails and the April 16 letter from the Chief Justice (Mike McGrath) confirm that the judicial branch public officers and employees improperly utilized state resources and time for the benefit of the MJA,” the report said. “The depth and breadth of the entanglement effectively turned Administrator McLaughlin into a de facto MJA employee.”
McLaughlin’s attorney rebutted the report on Wednesday, saying that her position has always been to support the 49 district court judges and the Supreme Court.
“The idea that district judges should take no role with respect to proposed legislation is absurd,” said attorney Randy J. Cox. “Under the law, judges are authorized to contact legislators and discuss their position on legislation. District court judges are content experts as to multiple issues before the legislature, including issues like court processes, drug offender treatment, handling of serious needs and demands of the youth court system. It is no surprise to any member of the Legislature that the Montana Judges Association exists to support or oppose legislation on issues the judges deal with every day.”
The report also points out that while MJA lobbyist Ed Bartlett and Todd are “registered principals” of the MJA, a status afforded by the Commissioner of Political Practices to allow members of government to lobby for policy changes, neither McLaughlin or the Supreme Court judges are registered.
The report also contains examples of what the judges or justices were thinking about legislation moving through the Legislature.
The report faults McGrath for his decision to use the MJA and not supervising McLaughlin better.
“The Chief testified that because the MJA only comments on bills related to ‘the judiciary and judicial business’ conducting MJA lobbying efforts utilizing state time and resources was ‘entirely proper.’ Quite to the contrary, no other state elected official or state employee, would be permitted to use state resources in this manner as it is a direct violation of law,” the draft report said.
Indeed, the very tone and substance of many of the emails seems to be a focal point of the committee’s initial report. It contains several dozen email examples, including conversations between McLaughlin and other members of the judicial branch. The lawmakers also raise the concern about deleted emails.
“There is no law or rule that prohibits a state employee from deleting email. Nothing cited in the committee report says so,” Cox said. “Of course, we know Beth’s emails were not deleted. Beth knows, like everyone knows, that delete from her own computer does not mean ‘gone forever.’ We know that to be true because thousands of her emails were delivered pursuant to an unlawful subpoena even before Beth’s deadline for responding to the Legislature had expired.”
The Republicans’ report catalogues some of the email correspondence between McLaughlin and judges, and provides a timeline of the case.
For example, one of McLaughlin’s email, sent on March 24, was in reference to a constitutional amendment and said, “It’s a proposed constitutional amendment so it would need 2/3 of both Houses and to be approved by the voters. I’ve never seen an unconstitutional constitutional amendment but it sure seems to conflict with the Supreme Court’s ultimate authority in statute. It will be a doozy.”
The report also shows emails from McLaughlin to other MJA members about lobbying the Legislature, something that neither she nor McGrath have denied. However, they have maintained that discussing policy or legislation that would affect the courts has been a long-standing practice.
“So is the partisan judge bill dead or will there be some Zombie like resurrection in the Senate?” wrote Todd in an email on March 4, to which McGrath replied, “No resurrection this session.”
The report also points out that state employees are prohibited from lobbying or using state resources to campaign for employees. The report provides quotations from emails which appear to be coordinating with three “hold-over” judicial nominees appointed by former Gov. Steve Bullock, a Democrat.
On Jan. 22, McGrath sent an email from his state account, which said, “This would be such a cluster if they aren’t confirmed — entire dockets would essentially be stranded including pending cases. Ed (Bartlett, lobbyist for MJA) is close with the lieutenant governor so maybe it’s time to ask directly if they are opposing them.”
The select committee report also faulted the Supreme Court for its response to a motion from McLaughlin to quash a legislative subpoena during a weekend. While the Senate Judiciary Committee issued subpoenas that required Department of Administration Director Misty Gilles to produce all McLaughlin’s email on a Saturday afternoon, the committee chided the high court for working that same weekend to stop the subpoena.
“The court has engaged in a number of procedural irregularities that merit mentioning,” it begins.
The select committee called into question the constitutionality of only six justices hearing a case, and pointed out that the court remedied that on Tuesday when it appointed another justice to fill the spot that was originally to be McGrath’s (which then went to Silver Bow County Judge Kurt Krueger until he, too, recused himself).
“The court entered an order outside of business hours on a Sunday afternoon without notice or opportunity for argument, favoring Administrator McLaughlin when McLaughlin was not a part to the case under which the motion was filed,” the report said.
However, Cox also pointed to standard procedures for emergency motions, which are made to courts routinely.
“The law allows for emergency petitions because actions don’t just happen from Monday through Friday, 9 to 5,” Cox said. “And in filing our emergency motions, we followed the rules exactly.”