Republicans’ Judicial Oversight Committee to Subpoena Witnesses, Require Oaths
Committee also outlines long list of bills it hopes to move in 2025
By Blair Miller for the Daily Montanan
Senate Republicans on the Select Committee on Judicial Oversight and Reform voted Tuesday to require witnesses to testify under the threat of perjury and to subpoena any elected officials and their subordinates they wish to call, saying they want to ensure testimony is factual and that people they want to testify show up without delay.
Both amendments were brought by Senate President Jason Ellsworth, R-Hamilton and the chairman of the committee, which he formed this summer after the Montana Supreme Court and several district courts made decisions in cases that either struck down as unconstitutional laws the Republican-led legislature had passed during the past three years or did not side with their preferred outcome.
The committee also discussed having its staff draft multiple bills in response to those decisions that it will vote on to decide whether to bring them forward during next year’s session. Democrats were invited to participate on the committee, but declined calling it a waste of time and resources.
“These motions are not to be egregious; they’re just to get our work done and be able to make sure that the citizens’ work is complete, that when we come back into session this next session, we actually have answers, and that we’re productive. And that’s what the citizens demand of us, so I think that’s what we’re doing at the end of the day,” Ellsworth said. “If people want to turn this into political theater – which some might – I’d be highly disappointed, because that’s not what this is about.”
Ellsworth said another select committee he has formed to investigate why up to 1,000 ballots for the June primary in Butte-Silver Bow County might have been counted twice would likely adopt similar rules.
That recount took place Tuesday, and Ellsworth said both the Republicans and Democrats on that select committee had reported Monday everything was going smoothly and aboveboard with preparation, but also that he still had “real concerns” about the timing of the discovery.
“In my opinion, today, again, waiting on facts. But how it got to this point in this far down the road is very concerning,” Ellsworth said.
Oaths For Witnesses
Exactly what led Ellsworth to require an oath of sorts for witnesses and the subpoena requirement for elected officials to testify at the committee was not as clear, but Ellsworth and Senator Barry Usher, R-Billings, hinted at instances that may have led to the decision. A Senate Republicans spokesperson said they did not want to name names at the hearing.
Ellsworth noted that one committee member at a July 15 meeting had asked Lewis and Clark County District Court Judge Mike Menahan to swear under oath before he answered questions, which is not typical for legislative hearings, and which Menahan declined to do.
The committee proceeded to grill Menahan for more than two hours about his past as a Democratic lawmaker and on why judges get reassigned from cases and why some recuse themselves from others.
“I don’t see the purpose,” Menahan told the committee at the time, as the Montana State News Bureau reported. “Moreover, I was asked to come to this committee, which I initially declined to do so because I was concerned with this committee, because they hadn’t articulated any policy objectives, was summoning me here for the sole purpose of asking questions about cases that are pending before my court.”
Ellsworth said Tuesday that it was the legislature’s tradition not to ask witnesses to swear under oath that they will tell the truth when testifying. The Senate and the select committee do have subpoena powers so long as they meet certain standards.
“Certainly, this is not to catch anyone doing anything wrong. So, what it is to do is just to make sure that people, when they come here, think about the whole truth and then give us all the information that’s necessary for us to make good decisions for the public,” Ellsworth said.
Senators Chris Friedel, R-Billings, and Wendy McKamey, R-Great Falls, both asked what the oath looks like since people can have different opinions of the truth and facts and what the ramifications would be if the committee believed a witness was not being truthful.
Ellsworth said he’d expect people to tell the truth during testimony and that people would not willfully lie. But if they did, he said the committee would present evidence to the Lewis and Clark County attorney, which potentially could lead to perjury charges if the prosecutor wishes to pursue a charge.
He said he felt the special select committee needs special rules to get to the bottom of its investigation into what it claims to be malfeasance by members of Montana’s judicial system.
“The courts have been weaponized politically, and they have been on a national level and on a state level,” Ellsworth said. “Our people don’t want this. I don’t care if you’re a Democrat or you’re a Republican, what you want and what the court is obligated to do is to be fair, impartial. And they’re a separate branch of government, and they’re co-equal, and we all want that. But we don’t want politics in the judiciary. That’s all we’re here to do.”
Ellsworth said the plan was to have language on sign-in sheets for in-person and online witnesses that will note they are testifying under oath. Senator Daniel Emrich, R-Great Falls, questioned whether that would be sufficient for a perjury charge if no one was formally swearing a witness in under oath.
Ellsworth responded by saying citizens testifying during public comment wouldn’t be affected when giving their opinions, but an oath would be beneficial trying to press the witnesses for more information. At times during the committee’s hearings this summer, witnesses have said they could not answer certain questions or discuss certain topics because of Montana Bar rules or because they involved ongoing litigation.
“It would be disingenuous of us if we did this to try to entrap somebody, and that is not the intent,” Ellsworth said. “It’s just we have work to do here, and I’ve got another committee that’s very vital, and they have work to do. And we’ve got to make sure that we get all the information as the information is available; it’s accurate, and to be able to make decisions. It’s nothing more complicated than that.”
The oath motion was approved by six of the Republicans on the committee, but Emrich, Friedel, and Senator Tom McGillvray, R-Billings, voted against it.
Subpoenas Required For Witnesses Moving Forward
Ellsworth told the committee he believed the committee needed subpoenas. He said there had been a witness the committee wanted to call who said they were not available to speak when they actually were. He did not name names. McGillvray asked if there had been any specific people who had delayed an appearance or dragged their feet, and why the committee could not just subpoena them since it has those powers.
Usher said there was a time when the committee requested someone’s presence but was denied twice before they were threatened with a possible subpoena, then agreed to appear.
Ellsworth explained to the committee that by issuing subpoenas to any potential witness, it would force someone to make a decision to attend the committee hearing if they had a competing meeting.
“I think if we just treat everybody the same, then there are no confrontations that need to happen, and then there’s no political aspect of it,” Ellsworth said. “I don’t want to turn this into a political theater; I just want people just to attend that need to attend so that we can get to the answers that we need to get to.”
The committee voted unanimously to approve Ellsworth’s motion. To round out their two-day meeting, the committee floated ideas for bills that staff will help craft for the 2025 session if the committee approves them for the session. The committee may work through December if it so chooses, Senate Republican spokesperson Kyle Schmauch said.
A staffer is already drafting a bill on creating a judicial performance evaluation commission, but the committee agreed to start the process on drafting a few more, including some that come directly in response to court cases that went against their favor. They include:
A bill or bills that would consider creating appellate or constitutional courts, the latter of which would be appointed by the governor to decide constitutional issues
A bill, similar to the 2023 Senate Bill 302 that failed in a 16-34 Senate floor vote, that would allow judges to run on a partisan basis
A bill to limit the Montana Supreme Court’s original jurisdiction to writs of habeas corpus
A bill that would open up Supreme Court proceedings and treat the documents generated during those proceedings as public records once the case is finalized
A bill that would allow the legislature, for instance, to ignore a court writ directing it to produce documents it does not possess
A bill analyzing how attorneys’ fees are awarded in court cases and making possible changes
A bill to tweak statutory language to require all ballot initiatives to come before a legislative committee before going out for signature gathering
A bill removing the requirement that Montana attorneys be members of the State Bar
A bill requiring courts give the legislature and executive branches deference when a bill or law is challenged by another party
A bill to prohibit retired judges from hearing cases involving constitutional challenges
Consider sending complaints to the Judicial Standards Committee and attorney discipline board regarding comments made by members of the Bar at an event earlier this year
Consider sending the Judicial Standards Commission a letter it hasn’t been following the law when reporting to the legislature
Looks like a pretty blatant attempt not only to undermine judicial independence but also to undermine the system of checks and balances so vital to our democracy and to our freedoms.