The Legislative Audit Committee meeting in Helena on Sept. 11, 2024. Legislative Auditor Angus Maciver (left) listens as Montana Senate President Jason Ellsworth, R-Hamilton (center) speaks. Legislative Audit Committee Vice Chairwoman Rep. Laura Smith, D-Missoula, sits to Ellsworth’s left (Screenshot via Montana Public Access Network).
Being confused by government is an American birthright.
That’s where journalism comes in — to explain the process and the procedure.
But even I can’t tell you what, exactly, happened at a recent legislative audit committee meeting, and from the sounds of others on the committee, they may have been equally flummoxed by Montana Senate President Jason Ellsworth, a Republican from Hamilton.
Here’s my summary:
During a meeting last Wednesday, Ellsworth appreciated the legislative auditing staff’s work so much he couldn’t accept it.
Ellsworth thinks that the “vast, vast, vast majority” of judges in the state work hard and make great decisions.
He even believes that the majority of complaints filed against judges at the Judicial Standards Commission are frivolous.
But he just can’t accept that the commission can function on its own without the approval or oversight of the Legislature. And in an odd and contorted meeting last week, he got fellow Republicans to go along with not approving a Legislative Audit Committee report that, according to Ellsworth, did a 100% correct job in its totality of reviewing the Judicial Standards Commission. (The committee deadlocked 6-to-6, an unusual, but not unprecedented outcome.)
To attempt summarization here, which could give you the mistaken impression that I understood Ellsworth’s position completely, the legislative auditors had opened his eyes to the fact that the judiciary is a separate branch of government, not beholden to the expectations of any political party.
The audit process is laid out in state law, so Ellsworth and Republicans’ disapproval of the report is largely symbolic because the audit happened and was released regardless. The deadlocked vote was merely another display of petulance by Republicans who have registered their dissatisfaction of the judiciary in numerous ways throughout the past few years, including seizing emails of the judiciary and then not giving them back, despite orders to do so.
But, you know, in case anyone was wondering: The Republicans are mad at the judiciary.
Still.
During the meeting, Ellsworth didn’t gin up outrage so much as confusion, as he had repeatedly tried to explain his rationale, and attempted a parliamentary trick of using a substitute motion, which had members scurrying to find their rulebooks and one representative to ask for a parliamentarian like a burning man would request water.
“It’s established in our rules. We would need parliamentarian … it’s just an alternate motion. But per our rules, it’s a non-debatable motion,” Ellsworth said, trying to cut off any conversation.
Rep. Emma Kerr-Carpenter, D-Billings, asked for some clarification, which didn’t go well.
“I’m not asking for debate, just clarification from legal counsel, who is our de facto parliamentarian, about what this actually does,” she said.
“It’s a non-debatable motion. So the rules are the rules are the rules. I made it because I sat on rules committee,” Ellsworth said.
How ironic is it that Ellsworth, who has been a one-man vendetta against the judiciary because they are following the law, would chastise another member of the Legislature with the “rules are the rules” when that’s exactly what the audit report found the judges to be doing — following the rules?
He insults the people of the state who judiciously decided that they wanted their judges and courts to be beyond the reach of garden-variety politics.
Ellsworth seems to forget that for the first century of Montana politics, the judiciary was never far from the reach of rich corporations and the politicians who could manipulate the courts. He forgot that one of the copper kings, F. Augustus Heinze, was said to have more lawyers on staff than geologists. Or that citizens had to rise up in 1911 and 1913 to demand a ballot and initiative process to get around a court system that had been corrupted by the political system.
The audit that Republicans asked for showed that next to Wyoming and Tennessee, Montana has one of the highest rates of judicial discipline in the nation, certainly something that doesn’t fit very conveniently into a narrative that Montana’s judiciary has somehow gone rogue or is beyond the reach of discipline.
The auditors found that most of Montana’s practices mirror other states, and that if there is a flaw, it’s that more information isn’t released when the members of the JSC mete out some sort of corrective action.
Ellsworth wants to convince voters that the judiciary gets to police itself via the Judicial Standards Commission, but that, too, is nifty sound bite because citizens hold two seats on the five-person commission and a lawyer also sits on it, making the judges outnumbered.
Watching Ellsworth try to twist his mangled logic into some sort of coherence on Wednesday was poor political theater as even members of his own party asked repeatedly for him to explain the motion and his rationale. One member even joked that he wanted to vote “maybe,” because he was as apparently as confused as the rest of us.
What we’re seeing has two problematic outcomes, though.
First, these stunts discredit the work of judges and the judiciary. Constantly questioning the judiciary’s motives, especially when politicians know that some of the court’s work must be done privately and confidentially to protect those who are vulnerable or whose privacy is not a political football, has a corrosive effect. We have heard so often that we cannot trust judges or the courts that it becomes a sort of urban legend.
Second, we’re seeing in real time what happens when politicians don’t get the answers they want — it’s apparent they’ll keep wasting our time and money investigating something that’s simply not there.
But if you don’t believe my words, then at least listen to Ellsworth’s:
“We know vast majority of complaints are not legit. But there are legit complaints. I have met a constituent with a complaint on a judge. It’s very rare because I think judges do a great job in this state. I want to be able to tell them we’re taking it serious.”
Yes, judges are doing a great job in this state, Sen. Ellsworth.
But, can the same be said for the Legislature?