All seven Montana Supreme Court justices on Monday appeared – virtually – before a legislative committee investigating potential judicial bias, to say they’ve taken no position on new laws that may come before them in a constitutional challenge.
The appearance also came just three days after the court quashed legislative subpoenas compelling them to produce internal communication documents – and the justices said they would rule fairly on whether those subpoenas are legal.
“Here we are — we’re the Supreme Court,” said Chief Justice Mike McGrath. “That’s where the issue is; it’s our responsibility to decide the issue. Oftentimes we have to put aside our own personal opinions about various things and make a decision based on the law and the facts of the matter before us.”
The extraordinary appearance by the seven justices is the latest turn in an evolving battle between majority Republicans and the judiciary, over whether Montana judges and the Supreme Court are unduly biased against new laws being passed by the 2021 Legislature.
Legislative Republicans – and the Republican attorney general – have used the power of Republican Gov. Greg Gianforte’s Department of Administration to acquire more than 2,400 emails from the Supreme Court administrator’s office.
GOP lawmakers have released selected copies of email that they say show a bias against GOP legislation, including a new law that gives Gianforte much broader power to appoint new state judges.
That law is being challenged before the Supreme Court as unconstitutional.
Republicans also ordered the justices and the court administrator last Thursday to produce further emails and internal documents and report to the Special Joint Select Committee on Judicial Transparency and Accountability, which they created last week.
The Supreme Court on Friday quashed all subpoenas issued by the Legislature in the dispute and said it would rule later on whether those subpoenas are legal.
Democrats on the committee have denounced the GOP effort as a partisan attack on Montana’s independent, nonpartisan judiciary, meant to slander judges before they must rule on a rash of legislation passed by Republicans this session, that Democrats say is unconstitutional.
“I’m not sure what this committee is doing, to be honest,” House Minority Leader Kim Abbott, D-Helena, said Monday morning. “This is an accumulation of a session-long barrage of legislation to just make the court more partisan, less independent. And it feels like a power grab from two branches of government that are partisan.”
Yet while the justices quashed the subpoenas – or, in the case of Justice Jim Rice, had a subpoena quashed by a state district judge – the justices appeared Monday afternoon before the select committee to make statements and answer questions.
Justice Dirk Sandefur also gave the committee a detailed, 12-page response to its subpoena, including several emails that he said are pertinent to the panel’s inquiry.
Sandefur said he’d not been involved in any poll of judges on legislation affecting the judiciary or taken positions on any legislation.
The other justices said they would not be providing any records requested by the subpoena, primarily because the legitimacy of the subpoena is an issue before the court.
Court Administrator Beth McLaughlin, who has been issued two subpoenas requesting her emails and other documents, filed challenges to those subpoenas within the past week.
Justice Laurie McKinnon told the committee that she understands the Republicans legislators’ concerns about having a “fair and impartial tribunal,” but said the justices take their oath of office seriously and will rule on issues before them fairly.
“I have not done anything which would cause you concern or to question my impartiality, in considering challenges to our legislation,” she said. “I have not pre-judged any of your legislation … and will decide any constitutional challenges only after I am fully informed by briefing, arguments and my own research into the law.”
Sen. Greg Hertz, R-Polson and chair of the select committee, noted the court will be ruling on a challenge brought by one of its own employees, and suggested the court is the “umpire over your own game.”
“We’re not umpiring our game,” McGrath replied. “We’re umpiring and trying to decide the basis of a legislative subpoena. It’s not personal to any of the parties that brought the case. The question is basically a question of law.”
He also said just because a judge or justice may oppose or support a bill before the Legislature that affects the judiciary, that doesn’t mean the judge has decided the constitutionality of the law.
Rep. Amy Regier, R-Kalispell, asked McGrath how a justice could be impartial ruling on a law, if he or she had opposed or supported the bill that created it.
McGrath compared the role of a judge to that of a member of jury, who is often asked if they can set aside their personal biases and still decide based on the facts of a case.
The Supreme Court will be deciding if the Legislature’s subpoenas asking for various communication records are within allowable legislative authority.
Justice Rice gave a preview of that debate in his request Monday to the state District Court in Helena, to quash his subpoena.
He said the subpoena was not for a valid legislative purpose, and therefore should be rejected. District Judge Mike McMahon didn’t rule directly on that question, but did quash the subpoena until that issue could be fully argued.