Judicial ethics probe fights over attack mailer

The release of a political mailer accusing the Supreme Court of covering up unethical behavior last week had Republicans and Democrats on the Legislature’s Joint Select Committee on Judicial Transparency and Accountability trading barbs and raising various specters of misconduct, but ultimately agreeing — though likely for different reasons — not to finalize a report containing the results of a GOP-led probe into the lobbying and public records retention policies of the judicial branch.

The committee, chaired by Sen. Greg Hertz, R-Polson, intended to meet May 5 to formally adopt that report, which lays out the argument from Republican lawmakers and other officials in the party that judges were pre-judging legislation that could face legal challenges through polls issued by the Montana Judges Association on how different bills would affect the administration of the court, lobbying improperly and failing to produce records requested by a legislative subpoena.

But lawmakers delayed that decision after a protracted back-and-forth on the legitimacy of the committee’s work, on the contributions of Democrats on the panel, the flier and other subjects related to the unwieldy multi-branch legal fight stemming from Senate Bill 140, a law passed this session to give the governor sole authority to fill judicial vacancies.

“This is a not legitimate committee based on Mason’s (Manual of Legislative Procedure), and particularly based on the political flier that went out over the last weekend, clearly shows that this is a political, partisan effort rather than anything independent,” said Sen. Diane Sands, D-Missoula, one of the Democrats on the committee, which formed in the latter days of the last session. 

The flier, first reported by KTVH, accuses the Supreme Court of lobbying on state time against specific legislation, blocking access to public records and violating conflict of interest rules by ruling against a legislative subpoena for court documents. It was the subject of perhaps the most contention in Wednesday’s meeting.

“The idea that this committee is engaging in some sort of somber investigation feels ridiculous at this point considering the coordinated political attack mailers that we saw over the weekend,” said House Minority Leader Kim Abbott, D-Helena.

Republicans on the panel denied having anything to do with the mailer, which was authorized by the Montana Republican State Central Committee.

“I don’t know how the minority leader can allege it was coordinated,” said House Majority Leader Sue Vinton, R-Billings.

The central committee’s treasurer is Missoula Republican Rep. Mike Hopkins, who could not be reached for comment. The expenditure on the mailer was not captured in the committee’s most recent campaign finance filing, which ran through March. Vinton is a previous donor to the committee.

Democrats have repeatedly insisted that the select committee was launching a coordinated, politically motivated attack on the judiciary, and introduced their own report laying out that argument with the expectation that it would be addended to the majority’s findings. They argue that Republicans, anticipating that many of the bills they passed this session would face legal challenges, coordinated to smear and delegitimize the courts, citing communication that Giles had with the governor’s office before the legislative subpoenas were issued. The minority report dubs this a “hack” of the court’s records.

But members of the majority on the committee Wednesday responded with indignation to the allegations in the minority report, with Vinton moving to delay adoption of any official document until Democrats elaborated on their conclusions and provided evidence.

“I’m extremely disappointed that the document the minority provided makes some very serious assertions with no evidentiary support and does not address the substance of the committee’s work,” Vinton said. “I cannot state strongly enough how unbelievable it is that the minority report would allege that Republicans in the legislature conspired with the governor’s office to hack the judiciary’s records. If it’s true, I expect facts to back that up. If it’s not true, I expect a retraction of that.”

Abbott said she believes Democrats have “offered evidence that this is an intentional undermining of an independent, coequal branch of government,” but, with her caucus lacking desire to legitimize the committee’s probe, ultimately agreed with the motion to delay adoption of any findings. In lieu of conducting any formal business, lawmakers instead spent the better part of an hour rehashing their various arguments. 

Sands said that there’s already a “legitimate process” for investigating claims of judicial impartiality through the Montana Judicial Standards Commission. Hertz has said that complaints to the commission or to the Montana Commissioner of Political Process are possible, depending in part on what’s contained in a cache of emails requested via a series of legislative subpoenas to the Supreme Court and court administrator Beth McLaughlin. GOP leadership received a portion of what they requested from the Department of Administration, a state agency headed by Misty Ann Giles, an appointee of Republican Gov. Greg Gianforte, but ultimately had their subpoenas enjoined by the high court, a decision they’re still trying to fight. McLaughlin and the justices said the documents requested by the legislative committee could contain sensitive information exempted from public records law.

Meanwhile, the effects of the law at the center of this conflict, SB140, have begun to manifest. Gianforte this week announced that he was seeking applicants for the judicial vacancy in Cascade County, a job opened when Republicans voted down the confirmation of a judge appointed to the Eighth Judicial District by former Democratic Gov. Steve Bullock.

Hertz said at the end of Wednesday’s meeting that the committee would wait for the various legal questions around SB140 and the Legislature’s subpoena power to make their way through the courts before committing to a hard schedule for future committee business.