GOP lawmakers grill Supreme Court chief over judicial ethics -- again

Exchange before panel studying judicial discipline
Posted at 2:54 PM, Sep 15, 2021
and last updated 2021-09-15 18:23:37-04

HELENA — The antagonism by some GOP lawmakers toward the Montana Supreme Court and the state judiciary was on display again Tuesday, as they grilled the high court’s chief justice and a district judge over ethical questions and the judges’ attitude toward the Legislature.

The exchanges came before a legislative committee launching a study of judicial discipline in the state – a study supported by Republicans who’ve alleged the Supreme Court and some state judges are biased against the GOP’s conservative agenda.

Several GOP members of the Interim Law and Justice Committee Tuesday often referred to contents of the judges’ internal emails, unearthed this spring, that sometimes criticized the 2021 Legislature and bills or actions by Republicans.

“Do you think even that was appropriate, for some of the comments that were said, and some of the condescending remarks that were made, were just out of line?” asked Sen. Tom McGillvray, R-Billings.

State Sen. Tom McGillvray, R-Billings.

District Judge Mike Menahan of Helena, appearing alongside Supreme Court Chief Justice Mike McGrath, didn’t answer the question directly, but acknowledged that some judges may misunderstand the role and actions of state lawmakers.

“There’s a big disconnect between many people in Montana, including a lot of members of the judiciary, who don’t understand the Legislature and the job that you do,” said Menahan, a former legislator. “It’s easy to ascribe poor motives because it’s a political setting and they don’t have a long view.”

But McGrath didn’t back away from his criticism of a GOP proposal this year to create a citizens’ commission that could remove judges for almost any reason – a proposal he’d referred to in an email as threatening democracy.

State District Judge Mike Menahan of Helena.

“It didn’t require any kind of due process, it didn’t require any kind of standards,” he told lawmakers Tuesday. “It just meant if there was a mob that was mad about something that a judge had decided, they could remove that judge from office – even though the judge is elected by the people.

“And, yes, that is the first step in the demise of a democratic system.”

The proposal, a constitutional amendment which would have gone before voters for approval in 2022, died on the Montana House floor in April.

McGrath and Menahan appeared before the committee to discuss the state Judicial Standards Commission, which investigates complaints against judges. If it finds that an ethical code has been breached, the commission forwards the case to the Supreme Court for further action.

The interim committee is reviewing the standards commission, with an eye toward suggesting possible changes. The legislative auditor also will be conducting a “performance audit” of the commission.

McGrath said the commission, whose five members are chosen by the governor, the Supreme Court and state district judges, is one of several “safeguards” that serve as checks on the power of the judiciary – including election of judges.

However, he also said he regards an independent judiciary as “the linchpin of our economy (and) our society.”

“If you look around the world, there are very few places where citizens have the opportunity to resolve disputes in an impartial manner,” he said. “That is a significant advantage to those of us who live in the United States and a free society, where the courts are places where people can resolve disputes in a civil way.”

GOP lawmakers had questions about the Judicial Standards Commission. But they mostly zeroed in on what they saw as conflicts with the Supreme Court deciding cases involving itself or its members, and contents of the emails, which were obtained through a legislative subpoena instigated by majority Republicans.

A unanimous Supreme Court this summer declared those subpoenas illegal, saying the Legislature had overstepped its constitutional authority.

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State Sen. Keith Regier, R-Kalispell.

Sen. Keith Regier, R-Kalispell and chair of the committee that issued the initial subpoena, asked McGrath what would happen if the Judicial Standards Commission recommended discipline for a Supreme Court justice, with the court making the final decision.

McGrath said the justice involved would not participate in the final decision.

McGillvray said he felt judges or candidates for judge often “dodge” questions about where they stand on issues, saying they can’t comment on issues potentially before the court – but that they did express their opinion in emails to each other.

McGrath said it’s “highly unlikely” that judges made comments about the constitutionality of specific laws or bills, and if they did, it would be inappropriate.

“I think judges go out of their way not to do that,” he said. “But if they did, if a case came up on that particular bill and whether it was constitutional or not, they would, or probably should, recuse themselves.”

McGrath also had an exchange with Rep. Barry Usher, R-Billings, on the justice’s opposition to the citizen-commission proposal that was killed.

Usher said if there is a dispute between two co-equal branches of the government, such as the Legislature and the court system, who gets to decide it?

McGrath had a long answer that boiled down to a short one: The courts, which he said have a “basic role” to decide the law.