Sen. Hertz at center of Republicans' battle with state Supreme Court

HELENA -- As the Montana Legislature nears the close of its biennial business, Republican lawmakers are mounting a case against the judicial branch and the state Supreme Court with accusations of judicial bias and improper record keeping, while Democrats call the inquiry a “witch hunt.”

Since the start of the 2021 Legislative Session, lawmakers have proposed numerous bills seeking changes to the judicial branch. Some bills, like several that would have made state judges partisan figures, died before reaching Gov. Greg Gianforte’s desk.

However, the governor recently signed one major bill eliminating the judicial nominating commission -- a panel in charge of recommending candidates to the governor to fill vacant judge seats -- giving the governor total authority to appoint judges. A swiftly-filed lawsuit against that bill sparked a chain of resolutions, subpoenas, and a back-and-forth between the Legislature and the judiciary branch that has seemingly resulted in a stalemate -- for now.

After Gianforte signed Senate Bill 140 into law on March 16, the Helena Independent Record reported that a coalition of former elected officials immediately filed a lawsuit with the Montana Supreme Court challenging the law, arguing it to be unconstitutional. That group included former Republican Secretary of State Bob Brown, a delegate to Montana’s 1972 constitutional convention, former Democratic lawmaker Dorothy Bradley and others.

The Supreme Court’s records on the lawsuit detail more than three dozen developments since the suit’s filing, with more likely to come. The plaintiffs’ initial filing states that eliminating the Judicial Nominating Commission is unconstitutional based on Article VII, Section 8 of the 1972 Montana Constitution, which says that the governor may appoint “a replacement from nominees selected in the manner provided by law” if a judge vacates their spot on the Montana Supreme Court or a district court. The lawsuit argues that the creation of the Judicial Nominating Commission in 1973 provided for the method of replacing vacant judicial seats, and that Gianforte has no constitutional standing for disbanding the commission.

Gianforte is the only defendant in the case, though both chambers of the Legislature passed resolutions seeking to join the case alongside the governor. The resolutions argue that SB 140 is constitutional because it revised the law determining how the governor can fill judicial vacancies. They also state that the lawsuit would “thwart the Montana Legislature's and the House of Representative's constitutional authority to exercise legislative power guaranteed by the Montana Constitution.”

On April 9, the Helena Independent Record reported that emails containing feedback from an internal poll of the state judiciary on judges’ thoughts on SB 140 were deleted by state Supreme Court Administrator Beth McLaughlin, prompting concern from Republicans over transparency and record keeping in the judicial branch. Republican lawmakers also expressed concern over the Montana Judges Association asking for members’ opinions on issues likely to come before the court, saying it “violates judicial ethics standards,” according to an email from Senate GOP Communications Director Kyle Schmauch.

Chief Justice Mike McGrath recused himself from the case, as he said he had urged Gianforte not to sign SB 140 before it became law. A judge brought in to replace McGrath has also recused himself after it was revealed he took a stance on the bill in the judicial poll, too.

All this culminated in a series of subpoenas issued by Republican lawmakers for McLaughlin and justices of the Montana Supreme Court to come before a special committee on “judicial transparency and accountability” on Monday, April 19, to face questions from legislators. McLaughlin did not appear at the hearing after the court quashed the subpoenas. The Helena Independent Record reported McLaughlin, in an email sent to Senate staff, said she “acquiesced to sloppiness” by deleting the emails about the judicial poll, and had no “nefarious intent.”

However, all seven Supreme Court justices appeared at an afternoon hearing via Zoom, and all proceeded to tell Sen. Greg Hertz, R-Polson, who is leading the Legislature’s inquiry into the judiciary, that they could not turn over emails and documents related to the judicial poll because the case was pending before the court. Each justice said commenting further would compromise their ability to stay impartial in the case against SB 140. The justices also said they never participated in any polls on legislation that could come before the court.

Earlier in the day, Hertz read aloud the questions he would have asked McLaughlin had she made an appearance. They focused on perceived issues of transparency in public records keeping in the courts and accusations of bias among judges for privately taking a stance on SB 140 before it came before them.

“If the judges have declared a new law unconstitutional before it’s even passed, are they impartial enough to listen to both sides when the law is challenged?” Hertz said. “I’m disappointed that [McLaughlin] has chosen not to appear today.”

Throughout the meeting, House Majority Leader Sue Vinton, R-Billings, made repeated requests that it be noted on the record that McLaughlin failed to appear. She echoed her party’s previous statements about needing to clarify the judiciary’s impartiality and transparency.

“We’re not talking about feelings in this committee hearing, we’re talking about facts,” Vinton said. “We’re asking for information, we haven’t had that info provided to us, and I, for one, will continue to seek the truth, to seek facts, and to seek transparency from that very coequal branch of government.”

But Democrats have repeatedly blasted the GOP’s actions against the judicial branch as a “witch hunt” and an “inquisition,” calling the creation of the Special Joint Select Committee on Judicial Transparency and Accountability an “embarrassment for our state” in a statement released on April 14.

Democrats on the committee are Sen. Diane Sands, D-Missoula, and House Minority Leader Kim Abbott, D-Helena. Abbott said McLaughlin didn’t appear because McLaughlin was following an order from the Supreme Court, which quashed the subpoena. Abbott added that she felt their questions had been properly answered by Chief Justice Mike McGrath, and that evidence indicated the other justices had not taken a stance on SB 140.

“This is an attack on an independent, coequal, nonpartisan branch of government that is a culmination of a session-long barrage of legislation to make the court more partisan, less independent -- and it feels like a power grab from two branches of government that are partisan,” Abbott said. “I’m incredibly disappointed in it. We need to protect the checks and balances that Montanans depend on and that our government depends on.”

After questioning of the justices concluded, Hertz said he felt the day had been a success.

“Committee Republicans see today’s events as a major step forward in our investigation,” Hertz said. “We look forward to continuing a dialogue with the judicial branch as we continue investigating the widely-reported issues with public records retention, impartiality, and potential judicial bias.”

During a press call later in the week, Senate Republicans’ Communications Director Kyle Schmauch said a potential end goal of the committee would be to recommend legislation, if needed, to put “reforms” on the judiciary -- though, time to do so is running out as the Legislature nears the end of its 90-day session.

Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at austin.amestoy@umontana.edu.