Montana lawmakers took the unusual step this month of asking the U.S. Supreme Court to intervene in a conflict between the judiciary and Legislature. At issue are due process and the political accountability of the judiciary.
State lawmakers learned this year that Montana judges had opined on proposed legislation in response to a survey of their views from Court Administrator Beth McLaughlin. Lawmakers worried that this compromised the impartiality of judges who may hear cases challenging the legality of new legislation. But when lawmakers asked to see the correspondence, Ms. McLaughlin said the emails no longer existed. Lawmakers tried to retrieve them from the Department of Administration, which houses state email archives.
The partial response they received included more judicial opining about proposed legislation that “validated and deepened the Legislature’s well-founded concerns,” state Attorney General Austin Knudsen now tells the U.S. Supreme Court. Lawmakers subpoenaed Ms. McLaughlin and individual state Justices for communications about judicial branch surveys and lobbying during the 2021 legislative session, among other records.
The Justices responded by quashing “all the subpoenas—including the ones issued to them,” Mr. Knudsen writes. Lawmakers sought to dismiss Justices from the case, raising concerns that “both institutional and personal conflicts” may prevent them “from rendering fair and equal justice.” All but one of the state Justices refused to recuse or dismiss themselves.
Mr. Knudsen says all of this violates lawmakers’ rights under the Fourteenth Amendment. “Judicial self-dealing on this scale might be unprecedented in the Nation’s history,” he writes in his petition to the U.S. High Court. “It violates the core due process tenet that ‘no man can be a judge in his own case.’”
Witness a controversy over how to fill judicial vacancies. Montana’s Governor appoints a replacement, but for decades his options were limited to nominees chosen by Montana’s Judicial Nominations Commission. The seven-person commission has long claimed to be nonpartisan, but its members have been donors to Democratic causes and candidates.
In March lawmakers passed Senate Bill 140, which ended the commission’s monopoly and allowed the Governor to choose among a broader range of nominees. The reform enhanced political accountability, since voters can punish governors who choose subpar judicial appointees and the state Senators who confirm them. In June the Montana Supreme Court affirmed SB 140’s constitutionality.
But two judges, including the Supreme Court Chief Justice, had to recuse themselves because of their prior opposition to SB 140. The fight over the Legislature’s judicial subpoenas continues with the petition for the U.S. Supreme Court to hear the case.
The Montana petition cites the High Court’s 2009 Caperton precedent that ruled against a state Supreme Court Justice for a conflict of interest. That conflict was tenuous in our view, but this one in Montana couldn’t be clearer. Of the state’s 46 district court judges, 37 replied to the poll regarding SB 140, with 34 opposing SB 140, according to the Helena Independent Record. The U.S. Supreme Court has a chance here to reinforce standards of ethical judicial conduct.