Republicans’ Judicial Oversight Committee to Send Justices Letter on Appointing Judges
Letter says signatories have concerns certain judges could be picked without oversight
By Blair Miller for the Daily Montanan
The Republican-led Senate Select Committee on Judicial Oversight and Reform voted Monday to send a letter to Montana’s Supreme Court justices, a district court judge and several other court employees asking about how the chief justice decides to appoint retired judges and if a handful are among the pool that would be considered to fill in on cases.
Most of the committee’s meetings so far have been educational, as attorneys and judges have told the Republican lawmakers about the separation of powers, attorney ethics, and where the line sits between the judiciary, legislative, and executive branches when it comes to creating and interpreting the law.
Monday’s meeting of the committee – formed in the wake of several court decisions that went against Senate Republican leadership’s preferred outcomes – was as well. The committee heard from retired district court judge Blair Jones [former District Judge of the 22nd Judicial District covering Big Horn, Carbon and Stillwater Counties], the father of Emily Jones, an attorney who often represents the state in cases under the Gianforte administration, as well as Billings attorney Mark Parker and Helena attorney Peter Habein, the chairman of the State Bar of Montana Ethics Committee.
Many of the questions from lawmakers to the three attorneys surrounded attorney and judicial ethics, how the chief justice decides to pick various retired judges when courts needed help, how Supreme Court justices were allowed to communicate with one another, and what, if anything, the legislature could do when it believes judges are incorrectly deciding cases that strike down bills passed by lawmakers.
While the committee continues to work toward crafting a bill for next year’s session to try to create a mechanism by which Supreme Court, district court and other judges can be evaluated, the only action it took Monday was voting to send a letter crafted by Senate President and Committee Chair Jason Ellsworth, R-Hamilton, to the judges and court employees posing numerous questions about specific former judges and about the process the chief justice uses to appoint judges for certain cases.
The original draft letter, released late last week ahead of Monday’s meeting, will be changed slightly before it is sent to the justices and court employees after the State Bar of Montana’s Bruce Spencer pointed out the letter incorrectly attributed certain comments made about a case at a continuing legal education meeting earlier this year to retired Judge Michael Moses.
“I need to make that clear because otherwise the State Bar will be forced to send out a corrective letter,” Spencer told the lawmakers, who agreed to correct the letter.
The updated version finished and released Tuesday afternoon removed that portion in question. Otherwise, the only changes made to it during Monday’s hearing were to add the names of the lawmakers aside from Ellsworth who voted to support the letter.
Most of the voting members of the committee – Democrats are not participating because they believe the committee’s formation and objectives are an attack on the judiciary – voted in support of the letter, though some lawmakers said they did not want to add the name of Sen. Steve Fitzpatrick, R-Great Falls, who is a member of the State Bar, without his permission because he was not in attendance.
The letter itself voices the Republicans’ concerns over what they call an “apparent lack of direction” in statute as to how the chief justice appoints retired judges when they are needed and said they see “no additional checks and balances governing the process.”
The lawmakers first cite their unhappiness that retired Gallatin County judge Michael Salvagni enjoined part a package of housing bills lawmakers passed at the end of last year’s session. Salvagni said in a December order that lawmakers passed the bills in a “chaotic” fashion and they led to contradictory rules for cities and counties.
“The legislation imperiled by his decision was thoughtfully drafted, vetted through a public process, debated on the floors of both chambers, and passed by a recently elected group of bipartisan legislators,” the letter says. “In contrast, retired judge Salvagni was last subject to a vote of the people a decade ago, retired eight years ago, and is accountable to just one person, the Chief Justice. There is no way for the public, who are deeply impacted by his ruling, to hold him accountable for it.”
The letter goes on to say the lawmakers who signed it believe retired judges need to be subject to the same oversight as the elected judges in the state, and cites other former judges who have resigned or been suspended for their decision-making, written briefs opposing the state’s position in a case, or made public comments the lawmakers find disagreeable and distasteful.
That includes Lake County Judge Kim Christopher, who resigned following reporting by the Daily Montanan over her conduct in a child custody case; Anaconda-Deer Lodge County judge Ray Dayton, who was suspended by the Supreme Court for making sexual comments about a person in a case he was hearing; Moses; six retired justices who wrote a friend-of-the-court brief in the Held vs. Montana case; and former Montana Supreme Court Justice James Nelson, who has made comments about fighting the current administration and legislature and penned a column after the attempted assassination of former President Donald Trump earlier this month calling the shooting “bad karma that you’ve dumped on other people for years.”
“We are disturbed by the actions of these former jurists, but mostly we are gravely concerned that a system may proliferate that eschews accountability in favor of expediency,” the lawmakers wrote in the letter.
It then lists 15 questions the lawmakers hope the justices, Lewis and Clark County District Court Judge Mike Menahan, who testified at the committee’s previous hearing, and other court employees – including Supreme Court Clerk Bowen Greenwood and Court Administrator Beth McLaughlin – will answer by noon on August 12.
Those include questions about the process chief justices use to appoint a retired judge; if there is a list of available judges authorized for consideration; if the judges they identified are on that list; if Nelson’s comments about Trump “fall short of expected judicial temperament” and would disqualify him from judging any case in the future; if the people receiving that letter have an opinion on his comments; and questions about if ethical standards and prior political financial contributions are accounted for when appointing retired judges.
The lawmakers said they sent the letter to the 11 people because they don’t know who would best answer the questions.
Committee Vice Chairman Senator Barry Usher, R-Billings, called on all the committee members to be signatories to the letter instead of just Ellsworth, as was originally drafted. Senator Wendy McKamey, R-Great Falls, suggested the letter contain just Ellsworth’s signature and a vote total from the committee.
“I would also like to comment that I thought the letter was very well-written, it’s very complete, and I appreciate the information that was presented in a factual way in the letter, and I would be pleased to have my name included on the letter,” said House Majority Leader Sue Vinton, R-Billings.
But two attorneys who are non-voting members of the committee voiced their concerns about having their names included. Whitefish attorney Jim Ramlow said he was uncomfortable with the letter criticizing the former justices who wrote an amicus brief in the Held case because typically, attorneys appearing before courts shows an element of qualification for the bench rather than one of disqualification.
Billings attorney Andrew Billstein said he wanted to abstain as a signatory to the letter because it could be construed as calling the court and its rulings into question.
“I’m not suggesting I believe that’s the case, but until certain matters are ruled on, allegedly, me signing onto this letter, to some, would be a violation of the Rules of Professional Conduct,” he said.
In the end, all voting Republicans on the committee voted to send the letter once it is amended save for Fitzpatrick because of his excused absence.
The committee hopes to have responses from the justices and court employees by August 12, which is one week before the committee is set to convene again for a two-day meeting on August 19 and 20. A Senate Republican spokesperson provided a copy of the updated letter Tuesday afternoon.