The War of Words at the Montana Supreme Court
Editors note: E-City Beat welcomes new contributor, Leslie D. Soule. See her brief bio at the end of her article.
The eyes of the nation are now on the Montana Supreme Court, with the recent email scandal that has taken place. Thus, untangling this Gordian Knot of issues, is the key in understanding the situation – figuring out not just the issue at hand, but the several various issues that are all rolled into one.
Legislative sessions are posted online, for viewing, such as the April 19th, 2021 Legislative session that involved the Special Joint Select Committee on Judicial Accountability and Transparency. In watching this session, it soon became very apparent, that multiple issues were at hand in this case, many of which, involve an interpretation of language, roles, and conflict-of-interest:
- The relationship between court administrators and the court itself, and impartiality or lack thereof
- The scope of the subpoenas referenced (subpoenas for court documents relating to polling)
- The polls to the Supreme Court and District Court judges, and how they relate to the Constitutionality of bills
- Whether Judge Krueger would have recused himself if he hadn’t been found out
- And then ultimately which judges are impartial enough now to judge certain challenged legislation that has passed – mainly S.B. 140.
Standing at the heart of the issue, is Senate Bill 140, which would alter the way Judges are appointed, due to a vacancy.
Montana Senate Bill 140 (S.B. 140) is a bill titled “Revise laws relating to the judiciary”, which was passed on March 16th, 2021. This bill repeals the Judicial Nomination Commission, and gives the governor the direct authority to appoint district court judges and Supreme Court justices.
An issue arises because the Supreme Court sent out a poll, asking what judges thought about this upcoming piece of legislation, creating a conflict-of-interest.
Cleanupthecourt.com summarizes the situation from here, stating, “In March a lawsuit was filed after S.B. 140 was signed into law by Gov. Gianforte. Chief Justice McGrath recused himself from the case because he had actively lobbied Gianforte against signing the bill. McGrath chose Judge Krueger as his replacement on the case, despite already knowing that Judge Krueger was ‘adamantly’ opposed to the bill. Judge Krueger recused himself from the case only after his email was revealed to the public.”
Judge Krueger is not the only judge who voiced an opinion via poll, or opposed S.B. 140, but his involvement is noteworthy because of his position, replacing Chief Justice Mike McGrath.
Also at the heart of the scandal, is a series of emails that were deleted at some point, and then recovered.
According to the website Cleanupthecourt.com, where the emails are available for public viewing, “Newly uncovered emails reveal troubling, unethical conduct by members of the Montana judiciary have sent shockwaves across the political landscape.”
The site also instructs to, “Read firsthand how members of the judicial branch improperly attempted to influence the legislative process, coordinate questionable activities with lawyers and lobbyists, ridicule the legislature, engage in unethical and unprofessional behavior, and do it all on the tax-payer dime.”
This certainly sounds salacious, but is it true? Let’s dive in and investigate. The scandal involves the following people:
- The members of the Montana Supreme Court, as per the 2021-2022 Montana Legislative Guide: Chief Justice Mike McGrath, Justice James A. Rice, Justice James Jeremiah Shea, Justice Ingrid Gustafson, Justice Dirk Sandefur, Justice Laurie McKinnon, and Justice Beth Baker.
- Their Court Administrator, Beth McLaughlin.
- Lobbyist Ed Bartlett, who received a poll.
- Judge Kurt Krueger, who is not a member of the Montana Supreme Court. Rather, he is a District Court 1 judge.
- The members of the Special Joint Select Committee on Judicial Accountability & Transparency, including: Senator Greg Hertz (Chairman/Presiding Officer), Representative Sue Vinton (Vice Presiding Officer), Senator Tom McGillvray, Senator Diane Sands, Representative Kim Abbott, and Representative Amy Regier
- Governor Greg Gianforte, of Montana, having signed S.B. 140 into law.
What became increasingly clear, in watching the Legislative session, on the 19th, is that the Montana Supreme Court wants to “have it both ways” when it comes to the role of its court administrators.
When Chief Justice Mike McGrath was questioned about it, he answered that the Court appoints the administrator, who is supposed to be “independent”, but also “serves at the pleasure of the court” as an at-will employee, and is on the Court payroll. Can someone in Beth McLaughlin’s court administrator role, be truly impartial? Or will their need for a paycheck, be always weighing on their mind?
What seems apparent is that the court administrator is caught in this dual-role that the Court wants them to have, kind of like Facebook trying to be both a “platform” and “publisher” of information, at the same time. They want it both ways, which creates confusion and also an inherent conflict of interest that is insidious.
The tone of Beth McLaughlin’s emails to the court, has come under scrutiny, as they are characterized by a tone that only be described as flippant and disrespectful. As this tone was used in emails sent from her Montana government email address, the tone should have been professional, and reflective of the nature of the court itself, as when she uses that email address, she is acting in a professional capacity.
Thus, at the very least, she ought to know better than to use emojis in professional emails to the judges. And yet, she does use emojis, as well as using derisive language, referring to legislation. An example of a few of her emails, regarding H.B. 685, which revises the Judicial Standards Commission, are as follows:
- March 24, 2021, 8:12 am – This email only states, “Well this is goofy.”
- March 24, 2021, 12:02pm – “It’s a proposed constitutional amendment so it would need 2/3 of both Houses and to be approved by the voters. I’ve never seen an unconstitutional constitutional amendment but it sure seems to conflict with the Supreme Court’s ultimate authority in statute. It will be a doozy.”
But ultimately, this is a side issue.
It is emails such as this one, sent by Chief Justice Mike McGrath, that are more troubling, and even less professional:
- March 24, 2021, 4:39pm Subject: RE: fyi LC 3213 – “We should probably get a membership vote on this and ask who can make calls. Probably need the bar to do the same. Of course the problem here is it allows a citizen’s commission to discipline or remove judges. Not clear who appoints them but God forbid they put any judges on it or more than one atty. Then there is the problem that it would be entirely inconsistent with other provisions of the constitution…M”
Here, we see Chief Justice Mike McGrath, in a conflict-of-interest position on this particular piece of legislation, weighing in on it that he does not approve, based on the possibility that the legislation could allow the removal of judges.
There is an undeniable power dynamic at work here, that rewards unethical behavior. This is what the emails reveal. The emails also show a disrespect and disdain for the public and for public servants trying to keep the courts in check. For example, here is another email by Chief Justice Mike McGrath:
- March 24, 2021, 5:51pm Subject: RE: fyi LC 3213 – “Just noticed the new name will be ‘The Judicial Inquiry Commission’. Think this straight out of the book ‘Where Democracies Go To Die’. M”
The next piece of evidence that must be considered, is the polls that were conducted.
A poll on Cleanupthecourt.com, sent by Beth McLaughlin, shows that it was sent by email, from her Montana government email address. The email instructs judges to “use the voting buttons (accept/reject) on your toolbar”.
Who instructed Beth McLaughlin to send the poll regarding S.B. 140, in the first place? It is clear, from another poll that was conducted and sent the same way, by email, that she sent that poll at the behest of Judge Greg Todd, who chairs the Montana Judges’ Association. Why are these polls being conducted? And how long has the Supreme Court been doing this?
There are some parts of this story that are, as yet, unknown, and more information will undoubtedly be uncovered as time goes on, with this case. But what we can be sure of, is that there are multiple conflicts-of-interest, going on, in regards to the Montana Supreme Court and the District Courts as well.
The sheer scope of this corruption is difficult to conceive of. But conceive of it, we must, if we are to have a hope of preserving Montana’s judicial system.
This is all extremely important because in order to have a fair judicial branch here in Montana, there must be no conflicts of interest, or undue influence on legislation, such as may have come about by the polling of judges and lobbyists, emails discussing legislation that is being considered before it is voted on, and Judges’ Association members influencing court employees.
This is not the last we’ll see of this ongoing case, and it will be interesting to follow the developments of this story.
