The letter dated July 29, 2024, from Jason Ellsworth, President of the Montana State Senate, on behalf of the Senate Select Committee on Judicial Oversight and Reform (the Committee), directed to the justices of the Montana Supreme Court and others, is attached to an article in the Daily Montanan.
Since I have been so prominently featured in the letter, I have some things to say about this whole matter. Rest assured that I have not had any communications with any of the addressees on the letter or with any judge or justice in the State of Montana. I speak only for myself, not on behalf of the Court.
First: Referring to the Committee, it is a quintessential example of the arrogance and hubris of the extremist Republicans in this Legislature (hereinafter referred to collectively as the legislators or legislature (lower case l)) to believe that they have the duty or the power to oversee, much less reform, the operations or decisions of a coordinate, co-equal branch of the government of this State.
While it may come as a shock to these legislators, the Judicial Branch does not work for the Legislature or the Executive branches. Rather, the Judicial Branch serves as a co-equal Constitutional check and balance on those two political branches. This most basic principle of Constitutional law (not to mention, middle school Civics 101) is enshrined in Article III, Section 1 of Montana’s Constitution: it provides:
Separation of powers. The power of the government of this state is divided into three distinct branches—legislative, executive, and judicial. 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. (Italics added).
Glaringly absent, from President Ellsworth’s letter is any reference to the Constitutional provision(s) directing or permitting the Committee or the political branches to oversee or reform the operations or decisions of the Judicial branch. The Judicial branch is ultimately accountable to the voters,[1] not to the other two branches.
Ironically, if the Legislature has the power to oversee and reform the Judicial branch, then the Judicial branch would have that same power oversee and reform the Legislative and Executive branches.
The Separation of Powers provision of the Constitution, quite obviously, prohibits precisely that.
The legislators seem to also believe that in order to oversee and reform the Judicial branch (a proposition that is dead on arrival in the first place), they have the power to conduct investigations of the Judicial branch pursuant to § 5-5-106, MCA.[2] But nothing in this statute, enacted by the 2023 supermajority/Freedom Caucus legislature, empowers the legislature to investigate the operations or decisions of a coordinate, co-equal and separate branch of state government, especially where the purported investigation is for the purpose of controlling, limiting or frustrating—i.e. “overseeing and reforming”–the constitutional powers of that branch in violation of the Separation of Powers section. Indeed, it may well be that, if challenged, this code section would be found unconstitutional as applied.
As for the Chief Justice appointing District Court fill-in judges where there is an absence or vacancy of a justice in Supreme Court case, that is exactly what the Constitution requires. Article VII, Sections 2(2) and 3(2). On occasion the Chief Justice may call in a retired justice to sit on a District Court case. Again, this is permitted by Section 2(2). I served under three Chief Justices (Turnage, Gray and McGrath). At no time did I ever see the abuse of these appointment powers by a Chief Justice. The political branches have a continuing problem with court challenges going against legislation. While I have no doubt that is frustrating, that is the function of the courts fulfilling their Constitutional role as a check and balance of the political branches. The courts declare what the law is when that law is challenged by an aggrieved party.
As is often the case, this legislature is attempting to create a solution in search of a non-existent problem.
Second: The amicus brief signed by some of the retired Supreme Court justices in Held vs. State of Montana, referred to in President Elsworth’s letter, took no position on the merits or evidentiary issues in that case. Rather, the amicus brief discussed the Separation of Powers provision referred to above. Obviously, one should actually read a brief, before condemning it on the basis of what it doesn’t say.
As an aside, I have signed amicus briefs along with other retired judges and justices from other states, which briefs were filed in the United States Supreme Court. There is nothing unethical or improper with this practice. Retired justices and judges can be “friends of the court” as well as can secular and sectarian organizations, lobbyists, and, of course, legislators, all of whom are frequent contributors of briefs amicus curiae.
Third, I have never been, nor would I accept an appointment to, serve as a fill-in District Court judge in any case in Montana. I am happy to leave that to my colleagues who were trial court judges. And, Montana’s Constitution actually expressly prohibits retired Supreme Court justices from being called to fill-in on a proceeding before the Supreme Court. Article VII, Section 3(2). One more solution in search of a problem.
Fourth, while certain of my public speeches and writings may have offended the Committee and the legislators, I make no apologies to those, for those. I stand by what I’ve said and written.
Like other Montanans, I have Constitutional First Amendment and Article II, Section 7, rights of free speech to express myself, orally and in writing. Unless the Committee and the legislators find some way to repeal the First Amendment and Article II, Section 7, then I will continue to exercise my free speech rights as a citizen and retired public official of this State. I will be neither threatened nor intimidated from doing so. Also, to that point, the next time one of you MAGA types calls my home and screams obscenities at my wife, please first have the guts to identify yourself and determine who you are ranting at.
Finally, I did not condone the recent attempt on Donald Trump’s life. Gun violence is out of control in this Country (about 1.5 mass shootings (4 or more people killed) per day so far), thanks to the NRA and lawmakers that are too weak-kneed to enact reasonable gun control and ban assault weapons like the AR-15 (“America’s rifle” so named by the NRA) that was used in the Trump shooting.
What I did say was that Mr. Trump brought on to himself this sort of violent conduct by his own preaching of hate and violence—not to mention that he fostered and fomented an unlawful insurrection and coup to take over the government of the United States on January 6, 2021, which resulted in 5 police officers dying and 174 being injured. Rather than condoning the attempted assassination, I offered a Biblical basis for why it happened. And it is hard to sympathize with someone who brings on his own injury through his own condemnable conduct.
Indeed, for a party so openly and sanctimoniously devoted to the Bible, the Committee and legislators might want to open one of the signed patriot Bibles that Mr. Trump is hawking, to Galatians, 6:7, …. “whatever one sows, that will he also reap.” He did; and he did.
Since my article was published only in the Missoula Current, I’ve attached it here, so that others may read it without the partisan spin, and make up their own minds.
Notes.
[1] Article II, Sections 1 and 2.
[2] 5-5-106. Scope and application of legislature investigative powers. (1) (a) Pursuant to Article V, section 1, of the Montana constitution, the legislative power is vested in the legislature consisting of a senate and a house of representatives.
(b) The constitutional legislative power includes the legislature’s broad power to investigate any subject related to enacting law, the implementation of enacted law, and the expenditure of money appropriated by the legislature.
(c) The presumption of constitutionality of legislative actions applies to legislative investigations.
(2) The broad scope and application of the legislature’s investigative powers include but are not limited to the power to investigate:
(a) any subject regarding information in connection with the proper discharge of the legislature’s function to enact, amend, or repeal statutes, appropriate money, audit state and local government finances and programs, or perform any other act delegated to the legislature by the constitution;
(b) any subject in which there is a legitimate use that the legislature can make of the information being sought;
(c) the management of state institutions and public agencies, as defined in 2-6-1002;
(d) matters concerning the administration of existing laws, proposed laws, or potentially necessary laws; and
(e) matters concerning defects in any social, political, or economic system to remedy those defects.
(3) The application and exercise of the legislature’s investigative power must protect the rights of all persons and adhere to all state and federal constitutional protections related to privacy, life, liberty, and property.
