(bright music) - [Jackie] Happening now on "The Rundown."

(bright music) - The alleged non-partisan character of the Judicial Nominations Commission is a fiction.

- [Jackie] One of Montana's newest laws faces a legal test and I call on a constitutional expert to discuss the issue dominating state news this week.

- It's like they're waging war on the judicial branch.

- I'm Jackie Coffin and "The Rundown: Capital Report" starts now.

"The Rundown" is made possible by the Greater Montana Foundation, encouraging communication on issues, trends and values of importance to Montanans.

"The Rundown: Capitol Report" takes place primarily in Helena, which is the original land of the Salish, Pend d'Oreille , Blackfeet, Shoshone, Bannock and Apsaalooke people.

(upbeat music) Welcome and thank you for joining me again here on "The Rundown."

The end of the session is drawing near but the constitutionality of some of the new laws passed early on in the session and already signed into law by Governor Gianforte, is already being tested.

A major theme of week 15 is power dynamics and that's playing out in a new Supreme Court case over judicial appointments.

There's a lot to unpack with this case so let's begin.

(upbeat music) A confirmed case of COVID-19 brought operations in the capital to a halt at the end of the week.

On Thursday evening, Republican leadership sent out notice that due to a case of COVID-19 in a member of the Government Affairs Community, House and Senate floor session would be canceled Friday and committee meetings could take place remotely.

Over the weekend, they announced Monday floor sessions would also be suspended with plans to resume on Tuesday.

This they said is all out of an abundance of caution and to give the contact tracer time to do her job and find out how many people have been exposed.

(soft music) The COVID case and cancellations came at the end of a very contentious week and tensions are rising between the different branches of our government.

The drama started with a lawsuit filed against Governor Greg Gianforte over a bill he recently signed into law that would allow him, the governor to directly appoint judges to vacancies in District and Supreme Courts.

This new law was the effort of Senate Bill 140 carried by Senator Keith Regier, a Republican from Kalispell.

Up until the signature of the new law established by SB 140, this is how judicial appointments worked in Montana per our State Constitution.

When a vacancy occurs in a district court or the Montana Supreme Court, it falls to the Judicial Nomination Commission to find new candidates.

The Judicial Nomination Commission is made up of five members, a mix of lawyers, judges and private citizens appointed by the governor, the Supreme Court and district judges, all with staggered four year terms.

For a vacancy in the courts, the Judicial Nomination Commission posts notice of the vacancy, collects, reviews and vets applications then submits a list of three to five nominees to the Governor and Chief Justice of the Supreme Court.

The Governor or Chief Justice makes the appointment and it has to be approved by the State Senate.

Montana Supreme Court is made up of seven Supreme Court justices and the Chief Justice is Mike McGrath, a Butte native.

Montana has 56 district courts divided into 22 judicial districts and served by 46 district court judges.

Senate bill 140 repeals the Judicial Nomination Commission and allows judges seeking to fill a vacancy to apply directly to the governor.

Let's look back at some of the early bill hearings to find out why Senator Regier brought this bill forward in the first place.

- Senate Bill 140 will repeal the Judicial Nomination Commission and allow for the governor to directly appoint district court judges and allow the Supreme Court justice to directly fill water Judge positions.

Currently, there is a Judicial Nomination Commission that provides the governor with a list of candidates for appointments to fill any vacancy on the Supreme Court or any district court.

Also, the Judicial Nomination Commission provides the Chief Justice of the Supreme Court with a list of candidates for appointment to fill any term or vacancy for the Chief water judge or Associate water judge.

I'd like to go over the bill with you as a committee and starting at the end, section 11.

Section 11, page six, this repeals the section of Montana Code that establishes the Judicial Nomination Commission.

I'd like to point out to the committee that there is not a nomination committee that brings choices to the governor for department directors or a committee that brings a list of choices for the various state boards.

The governor should be able to directly choose judges the same way Senate Bill 140 will do that Mr.

Chair.

Tradition may work but it doesn't mean it's the best way.

- Governor Gianforte signed SB 140 into law the day before St. Patrick's Day without much pomp or circumstance.

The next day, a lawsuit challenging the constitutionality of the new law was filed in the Montana Supreme Court by two former legislators, a Republican and a Democrat, the Chairman of the CSKT, a well-known now retired Montana lawyer in the League of Women Voters.

The problem with SB 140 according to their filing is it gives the governor too much power and brings politics into appointments.

At first, Greg Gianforte was the lone defendant named in the lawsuit and is being defended by Montana's new Attorney General, Austin Knudsen.

Knudsen responded to the complaint saying the new law does not violate our State Constitution.

And since then things have intensified mostly between the legislature and the Supreme Court.

In the last two weeks, House and Senate Republicans have filed resolutions to add the legislature into the lawsuit as a defendant alongside Gianforte.

- The Montana State Constitution vests in the legislature the authority to enact legislation.

When legislation that we drafted, debated and voted to pass is the subject of a court challenge, the legislature is an indispensable party to that litigation.

It is our duty as elected legislators to protect the integrity of the legislative branch and its ability to fulfill its constitutional role.

House Resolution Seven, authorizes the hiring of outside counsel by the legislature to intervene impending litigation.

- I get that there are some individual members of this body that are upset that a private party has decided to file a lawsuit saying that one of the bills that we passed out of this body is unconstitutional.

It's gonna happen some more, it happens no matter...

It happens all over the country, Democratic, Republican legislatures.

And it's something that doesn't normally require the legislature to intervene.

And I think that if individual members do want to participate in this lawsuit somehow, whether it's filing an Amicus brief, they can do so but they should pay out of their own pocket.

And it's not right to force taxpayers to foot the bill.

- [Jackie] To join the suit, the legislature would need to hire a lawyer and they have allocated money out of the general fund to do so.

While the fiscal note says $10,000, it would likely cost more.

When the House Resolution came up on the floor this week, an effort to amend the resolution to cap the amount at $10,000 failed.

- I would submit that regardless we should not and will not shy away from taking action when the integrity of the legislature and legislative process is at stake.

And again, I urge you to resist this amendment.

- [Man] The amendment has failed.

- So the legislature has joined the lawsuit too and their lawyer is Emily Jones, a Billings attorney.

That's pretty much the bare bones of the lawsuit over SB 40, the key players and what's going on but it does get significantly more complicated and political with the issue of emails.

Parts of an email chain obtained by Republicans and shared with the press shows an internal poll conducted by Montana Supreme Court Administrator, Beth McGlaughlin on behalf of the Montana Judges Association and how justices feel about SB 140.

This, the Republican say, means the justices are no longer impartial.

Attorney General, Austin Knudsen filed subpoenas for the rest of the email correspondence and other emails of the Supreme Court justices.

There's a lot of action going on right now over these subpoenas and whether the emails will actually be released, how many will be released and even questions of missing emails, but all of that gets pretty in the weeds and might even change by the time this story airs.

Some of the Supreme Court justices have been recusing themselves from the case saying they can not be seen as impartial.

While district justices could step in on the matter, filling vacancies on the case, some say they too are not impartial.

This could potentially lead to a hung court.

In this revelation of justices discussing a bill and recusing themselves from the case set off an alarm for legislative Republicans who say it is evidence of a deeper issue of left leaning courts in Montana, an overall issue predating this specific case.

- The idea that anyone including judges are non-partisan it is like cheap clothes with a high price tag and they're not worth to what they advertise.

- [Jackie] And this session, there have been a handful of bills trying to make Montana's courts partisan.

Meaning judges would have to pick a political party when they run for office, something they have not historically done in our state.

- Right now, we currently do have judicial candidates that are partisan and they just can't run that way and this bill would allow them to.

- [Jackie] One such effort to make Montanan's courts partisan was House Bill 342 carried by representative Matt Regier, a Republican representing Columbia Falls.

He is the son of Senator Keith Regier who carried SB 140.

Representative, Matt Regier's argument for why Montana's judicial elections should be tied to political parties, is he thinks they already are.

- The last election cycle, there was a judicial candidate for the Supreme Court that donated $22,800 to one political party and $0 to the other political party.

These candidates are partisan.

Our judicial candidates do have their own mindset, they do have their own thoughts, they do have their own worldview.

I believe we should let the voters know that, if you're like me, come election cycle, I know that the most calls by far that I get, are from constituents saying, "Who do I vote for in our judicial elections?"

I believe while we've got partisan judges, as you can tell, by donations, that we should let the voters know that too.

Let them know what's on the inside.

- Of course, our judges are human beings who have opinions on political issues, no one is saying otherwise, but their work is not partisan work.

Every Tuesday around 2:55 PM the Montana Supreme Court releases five to 10 opinions on cases that they have considered and then decided.

Last Tuesday, they released seven opinions.

Four of them were criminal cases, one was a probate case, one was a car accident and one involved the ineffective assistance of counsel.

The question of whether an attorney was ineffective is not a partisan question.

The question of who has the best claim to mom's estate is not a partisan question.

The question of whether it was proper or improper for a trial court to allow video testimony is not a partisan question.

These are the questions that the Montana Supreme Court decides on a weekly basis.

The work of our courts is not partisan work, our judiciary is independent, let's keep it that way.

I'd appreciate a no vote on this bill.

- [Jackie] This effort did not make it out of the House but it echoes the general sentiment felt by some in the halls of the capital.

- Isn't it funny watching these judges scurry around about this bill?

Who are they hiding?

Who are they afraid of?

Why are they hiding behind the black robe?

- [Jackie] Another bill carried by representative, Kerri Seekins-Crow, a Republican from Billings would require all justices recommended by the Judicial Nomination Commission and appointed to a vacancy to be confirmed by the Senate.

- House Bill 380, gives the legislature, that's us, the Senate, some indirect control of the review of these judges.

It's consistent with Senate approval of boards in judicial vacancies.

- This is an independent judiciary and this feels to me very close to a blatant power grab.

There's a lot of changes happening in the session and I respect a lot of our political differences.

But from my perspective, what we're doing with these series of bills is substantially changing the face of government.

And we are trying to politicize our courts and I don't know why we're doing it, it's unprecedented.

And I fear that it will not end well.

- [Jackie] As the case against SB 140 unfolds and the leaked emails with the internal poll bring up issues of impartiality, the legislature formed a commission to investigate bias in the judicial branch, which is in its power to do so.

The first meeting was held this last Friday at 4:00 PM ending along week.

- We are not there to tell the courts how to rule, we are here to ensure that no state employee or state agency considers themselves above the law and to determine what policies are needed to protect the public's constitutional right to know and ensure public confidence in the integrity of impartiality of our judicial branch.

- It seems like a constitutional crisis point to me.

I take it very seriously, as I said, I find it alarming.

I look forward to the meeting on Monday but deeply concerned about the activities of this committee.

- [Jackie] And Senate party leaders and other members including representative Amy Regier, a Republican from Kalispell, who is the sister of representative, Matt Regier and daughter of Senator Keith Regier sponsor of SB 140.

This commission in the legislature has also filed subpoenas to get judicial emails for the entire session, for what it says, is its own investigation.

- Subpoenas issued by the legislature were not broad, they were narrowly tailored to obtain only likely information from the past three months, detailing judges' prejudgment of laws and issues that are likely to come before it, this is not confidential communication.

- The Supreme Court Administrator has quashed those subpoenas.

Both the legislature's request and the court rejecting it are within the rights and powers of those two branches.

And through all of this there are real implications for judges right now.

There are three district judges for some of our state's busiest courts who are stuck in nomination limbo.

These three judges were appointed last fall by former governor, Steve Bullock, a Democrat to courts in Helena, Great Falls and Bozeman.

But could three judges appointed by a Democrat pass the Republican controlled State Senate?

The fate lies in the hands of Senator Keith Regier, chair of the Senate Judiciary Committee.

Three Senate resolutions carrying the appointments were brought forward.

One, by Senator Diane Sands, a Democrat from Missoula, the other two, by Senator Keith Regier.

In early March, all three justices had hearings in front of the State Judicial Committee.

Each one lasted for two hours, mostly filled by proponent testimony and some questions from the committee.

Not a single opponent came out against any of these three appointments, but the March hearings were the last action on these appointments.

What is needed now is a vote from the Senate Judiciary Committee to move them forward.

Chairman Regier has not scheduled one and Senate GOP representatives say the timeline of if and when it will happen before the end of session is not firm.

If the session ends without a vote, the justices will not be confirmed.

And with the change in law, accorded by SB 140, Governor Gianforte will be able to directly appoint his choice of justices to these vacancies.

All of this has stoked up a lot of strong feelings on both sides and that's an understatement.

There's cries of corruption, of labeling this a constitutional crisis and in calling into question the balance of power between our three branches of government.

But I think it's a good idea to step back and take a deeper look at the broader issues at hand.

And for that, I called on the expertise of Anthony Johnstone, an Associate Professor of law at the University of Montana who has a deep knowledge about our State Constitution.

- I'm Anthony Johnstone, I'm the Helen and David Mason Professor of Law and Affiliated Professor of Public Administration and Policy at the Blewett School of Law at the University of Montana.

I have to say all those things, you don't, you can just say I'm a Professor of Law at the University of Montana.

I've been very lucky to engage with the Montana Constitution all the way back to my first job out of law school.

- In a nutshell, what makes Montana's Constitution unique or special or challenging?

- It is all of those things, it is unique and special and challenging.

Our constitution was written and ratified by we, the people of Montana and in just 1972, depending on how you count, it's maybe the third newest constitution in the country but in many ways it's probably the freshest constitution in terms of the ideas that are in it.

Some of them are more recent.

New State Constitutions are generally reflect... Have a few innovations but not as many as the Montana's Constitution.

And so because we've had it since 1972, not only is the document itself modern in terms of better reflecting Montanans values in the late 20th and early 21st century, compared to say, the U.S Constitution, most of which was written in the late 18th century.

But it also means that there are many areas that haven't fully been explored by the courts.

- With the separation of powers as written by the Montana Constitution, what does our constitution say?

Does it have its own balance between how the three branches of government should interact?

- Well, so unlike the Federal Constitution, the Montana Constitution actually has the word separation of powers in it.

In the Federal Constitution, the idea of separation of powers and the related idea of checks and balances, is based on implications from reading the fact that the Congress has the legislative power, the president has the executive power and the Supreme Court has the judicial power.

In Montana, I like this about Montana.

We just come out and say it, is that there is a separation of powers and in our constitution it's Section one of article three.

It says, "the power of the government of this state is divided into three distinct branches, legislative, executive and judicial and that no person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution, expressly directed or permitted."

The bottom line is that it reinforces the idea that in order to have the rule of law and protect our liberty, we have three different branches, all of whom must do agree in order for government to act on us.

In other words, the legislature can pass a law, but in order to enforce it, you need someone in another branch, the executive to enforce it.

And in order to actually apply it to a particular person, you need the judicial branch to agree.

The fact that all three of them need to agree not just on what the law means, but also that it's constitutional gives us stronger protections for our personal liberties and our constitutional rights.

- And the story I'm focusing on this week is about a lawsuit where some of these powers imbalances are being tested amongst each other by each other.

And there has been some language thrown around about it being a constitutional crisis.

Is this hyperbeli?

Is that a good description of the conflict between the legislature and the judicial branch that's kind of skilling out right now?

- I think constitutional crisis overstates the issue I think about when we think about constitutional crises, we typically think as the leading example, the succession of the Southern States from the Union before the Civil War or the constitution doesn't say anything about it and where important and powerful political actors disagree about those issues.

Now, we do have a disagreement here between the judicial and the legislative branch about the scope of their powers.

And interestingly, it's not the typical separation of powers issue where one branch is trying to do the other branch's job.

It is clear under the constitution and laws, that the legislature in general has the power to issue subpoenas in aid of its legislative duties.

And it's also clear that the judiciary, in the exercise of its judicial power has the power to quash subpoenas in the exercise of its judicial duties.

The real question here is, to what extent each of them in doing their own jobs is interfering with the other branches job?

As often happens in separation of powers issues, we're kind of between a constitutional rock and a hard place where both do have the power that they are exercising but those powers must be limited to the extent they interfere with the other branches powers.

And those lines are not bright.

- And in your experience in Montana, has there been a conflict like this before?

Is this unprecedented, at least in the nature of the conflict between the judicial and the legislative branches?

- I have never seen anything quite like this happen.

When I'd served in government and usually what people do, actually there's a term for it as lawyers.

It's actually, what courts require you to do, is it if you've got a dispute over particular documents and one side thinks they are entitled to them and the other side thinks that they're not, just about every court in the land would require a meet and confer.

In other words, hold on, why don't you, before you turn it into a constitutional crisis, right?

Or you start throwing words like that around, why don't you sit down and hash this out?

That hasn't happened, that didn't happen at the outset of this, right?

It was rather quick moves assisted by the fact that the judiciary actually wasn't the custodian of the emails.

But, that's typically what you would see in these issues, in a world in which someone from the executive branch has an issue with something the legislature is gonna do.

You generally talk it over, even in the case where in difficult judicial issues where you're not quite involved in a case but you're trying to sort out questions about where the judiciary's power begins and the legislative powers end, a lot of that would be settled in court but sometimes you just talk it through and explain the concerns.

And I think this has been in some ways a perfect storm of, you know, the litigation, the challenge to a law, that's ordinary, that's everyone doing its job.

The legislature does its job, passes a law.

The judiciary does its job and in a case we'll review that law's constitutionality, that's ordinary stuff.

What's extraordinary here I think is, the accusations, even after the recusal of any judge who had opined on this bill before, that the judiciary overall is infected with some sort of bias that the legislature needs to get to the bottom of, that reflects I think, a departure from the historical and mutual respect that the branches typically have for each other and is troubling aside from whatever the technical right answer may be in terms of separation of powers.

(upbeat music) - That's all the time we have this week on "The Rundown: Capital Report."

I'll see you next Sunday in Helena.

"The Rundown" is made possible by the Greater Montana Foundation, encouraging communication on issues, trends and values of importance to Montanans.

(upbeat music)