The Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)
Montana Senate President Jason Ellsworth has subpoenaed eight people, including the Judicial Standards Commission, its secretary, the Supreme Court administrator and the court’s staff attorney to appear before his Select Committee on Judicial Oversight and Reform’s meeting Thursday to talk about proposed changes to the commission’s rules released last week.
Additionally, Ellsworth on Tuesday sent Supreme Court Chief Justice Mike McGrath a letter responding to one McGrath wrote to Ellsworth on Aug. 6 in which he told the Hamilton Republican that judicial branch members would not attend any more meetings held by the select committee regarding Judicial Standards Commission business.
McGrath wrote that was because the judicial branch had been working with the Legislative Audit Division on an audit of the JSC and was prepared to discuss the audit’s recommendations when it is presented at the Legislative Audit Committee meeting on Sept. 11. Ellsworth also is chairperson of the Audit Committee.
McGrath’s letter said the select committee on judicial oversight had requested Judicial Standards Commission members attend the committee’s Aug. 19 meeting and provide the committee with closed files of complaints filed with the JSC, which McGrath contended “are to remain confidential unless released by the complaining witness after the process has been completed.”
In his response sent Tuesday, Ellsworth accused McGrath, who is retiring at the end of the current term, of having a lack of deference to the legislative branch, called his concerns “purely self-serving,” and accused McGrath of sending him “an edict.”
“In response, I caution you and those who may choose to defer to you to proceed with caution. The Legislature also has sanction authority that it may exercise independently to address contempt of its process,” Ellsworth wrote. “Absent prompt retraction, you compromise your own otherwise respectable legacy in these waning hours before you and your administration finally separate at year end.”
Ellsworth in the letter asks why McGrath thinks the commission must appear at the Audit Committee but not at the Judicial Oversight Committee, mentions that the legislature provides procedures and cause for impeachment, and outlines the legislative powers over the Judicial Standards Commission.
The letter further notes that the legislature during last year’s session changed the law surrounding when a Judicial Standards Commission complaint can be made public to the legislature and how members are appointed.
During last week’s meeting of the Judicial Oversight Committee, on which Democrats have chosen not to participate because they say it is a waste of time and resources, Ellsworth and other members decried what they said was a lack of reporting from the JSC to the committee regarding complaints and information.
Ellsworth’s letter says the Judicial Standards Commission must stay separate from the Supreme Court in its decision-making because the Supreme Court ultimately decides how to sanction judicial misconduct.
“I recognize there exists extreme consternation among judges over SJOR and conservative leadership accessing potentially compromising information on judges and disrupting long-standing secret processes, but you and the judges you lead may only instill public trust and confidence in the judiciary by opening the doors and letting the sunshine in,” Ellsworth wrote. “Now is the time for courage, not fear, and faith in the public’s ability to act on the information it has a right to know at election time.”
Ellsworth also last week issued a subpoena to Lewis and Clark District Court Judge Mike Menahan, in his capacity as the JSC chairman, to produce a report by Sept. 5 regarding its work on judicial misconduct that he said was due by Sept. 1 but had not been received – similar to discussion the oversight committee had last week before the deadline. Senate Republicans’ spokesperson Kyle Schmauch issued a news release Tuesday announcing the subpoena.
In addition to both the subpoena, his letter to McGrath, and the subpoenas to the JSC members and Supreme Court employees, Ellsworth also wrote to Menahan saying all JSC members would be required to cooperate with the legislative committees.
“The Supreme Court as presently seated may not legitimately hold that the Legislature has no authority to enforce its subpoenas through imposition of individual fines,” Ellsworth wrote to Menahan. “It is my intent to ensure the Legislature’s authority is upheld and will pursue all available avenues for relief should you and the JSC leave me no alternative.”
The eight people subpoenaed to appear at Thursday’s committee meeting are Menahan, Judge Randal Spaulding, Jill Gerdrum, Roger Webb, and Seth Berglee – all JSC members – as well as JSC Secretary Shelly Smith, Supreme Court Administrator Beth McLaughlin, and Montana Supreme Court staff attorney Jeanine Blaner.
The subpoenas say their presence is required to discuss the proposed changes to the rules of the JSC whose public comment period closes on Friday. The subpoenas say the committee wants to know how the proposed changes would affect changes made by the legislature to JSC confidentiality in last year’s Senate Bill 313, as well as the workload of the commission “given the Senate’s direct involvement in the appropriation process.”
The subpoenas say failure to appear before the committee would result in the committee pursuing contempt charges. Some of the proposed JSC rules changes include tweaks the appointment process for members and changes to confidentiality timelines – two topics the Republican-supermajority legislature passed changes to last session.
The judicial oversight committee is one of two special select committees Ellsworth formed during the interim. The other met on Tuesday to hear from Butte-Silver Bow County election officials about why some votes were double-counted during the June primary, as well as a group of people who want to put in place large changes to elections, including the use of only paper ballots.
At the judicial oversight committee’s meeting last week, the committee voted to require all witnesses to testify under the threat of perjury and to subpoena all elected officials and their subordinates lawmakers wish to call. It also proposed a dozen other possible committee bills for next session involving the judicial branch’s power.
Thursday’s meeting at the state Capitol is scheduled to start at 9 a.m. and run through the day, with a public comment period scheduled for 4:30 p.m.