Op-Ed: On the Power Struggle Between Montana Supreme Court and the People

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[Gary Marbut] You might be interested to hear about a power struggle going on in Helena.  It’s basically about the judicial branch fighting to retain its supremacy over Montana.

Montana government is divided into three branches that are supposed to be co-equal, the executive, the legislative, and the judicial.

The executive includes the Governor, all the various agencies and departments, and most state employees.  The executive branch also includes the elected Secretary of State, Attorney General, Auditor, and Superintendent of Public Instruction, and all of their employees.

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The legislative branch, sometimes called “the peoples’ branch,” includes the Montana Senate, the Montana House of Representatives, and various employees that work for the Legislature only, such as the Legislative Services Division, the Legislative Fiscal Division, the Legislative Auditor, and the support staff for the Senate, House, and the committees of each.

The judicial branch includes the judges – the Montana Supreme Court, the District Court judges, Justices of the Peace, and their employees and various staff.

A historic problem in Montana has been that these branches have not been “co-equal.”  For nearly a half century (maybe longer), nothing politically important has been allowed to happen if the judicial branch does not approve of it.  And, the judicial branch has long been dominated by people who, if they ran and were elected by party labels, would be Democrats.  That means that philosophically, judicial branch members lean away from individual liberty and towards an authoritarian state.

This was confirmed recently by the Montana Family Foundation when it studied the political contributions made by judges.  Although judges will claim that they are non-partisan and politically neutral, nearly all of their political donations go to Democrats.

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Because of this pervasive and institutional bias in the judiciary, the Montana Supreme Court has achieved the role of the Copper Kings of the modern era.  Supreme Court justices run Montana, politically speaking.

This condensation of ultimate political power in the judiciary, especially the Supreme Court, has lots of serious consequence for Montana and its people, and this consequence is not good for individual liberty.  There are so many examples of this that it’s difficult to pick just one as an example for discussion. But, one was the voter-approved change in the Montana Constitution to allow the people to vote on tax increases.  The Montana Supreme Court stomped that flat like an offensive bug and flushed it down the drain.

Nothing gets by the Montana Supreme Court.  If there is any issue of serious consequence to Montana, somebody will figure out how to steer that into the clutches of the Supreme Court with litigation.  If the issue shifts power, money, or choice from people to government, the Supreme Court will give the issue its stamp of approval, no matter how improperly done.  If the issue shifts power, money, or choice from government to people, the Supreme Court will figure out how to torpedo the issue, no matter what legal or semantic contortions may be necessary to make that happen.

There have been many attempts to wrest some this ultimate power away from the Supreme Court – to restore the three branches as co-equal.  One measure would have required Supreme Court justices to be from and elected by geographical districts across Montana, just like the members of the Public Service Commission are now.  This was an attempt to break up the Helena-centric cabal the Supreme Court has become.  The Court got hold of that and shot it down – said it violated the one-man-one-vote principle.

The most current effort to temper the ultimate power wielded by the Supreme Court has to do with the Judicial Nomination Commission.  It has been common for judges to announce retirement in the middle of their elected terms.  Then, the governor can appoint a replacement, a new judge who will take on the substantial power of incumbency for the next election.  However, the governor may only choose from a short list provided by the Judicial Nomination Commission.  So, the Commission will offer the governor a choice among a select few of the candidates, a few who are congruent with the judicial political power structure in Helena.  Thus, the governor would have no choice but to select a nominee who would support the existing judicial cabal.

While this process of populating the judicial positions in Montana applies mostly to the District Courts, those courts are the primary feedstock for the Supreme Court, both for politically relevant cases and for candidates for the Supreme Court.

Senate Bill 140 in the current legislative session gets rid of the Judicial Nominations Commission, the control mechanism that insures the judiciary will remain populated with judges agreeable to the Supreme Court and the power-sensitive judicial cabal in Helena.  Getting rid of the Commission would allow the governor to appoint judges from among any qualified candidates, not just from ones favored by the existing judicial power structure.

SB 140 passed the Legislature and was signed into law by Governor Gianforte.  The ink wasn’t even dry on SB 140 when some operative agent of the judicial branch placed the issue before the Montana Supreme Court.  It is expected that the Court will figure out some clever way to declare that eliminating the judicial control mechanism of the Commission is somehow unconstitutional, to void SB 140.

But, the Supreme Court wouldn’t do this, would it?  Surely, the Supreme Court and the judiciary in general are neutral and unbiased, aren’t they?  Well, not so fast.  It seems that judiciary personnel actually surveyed judges about SB 140.  And, no surprise, it turns out that the vast majority of judges acknowledge opposing the idea of SB 140.  So much for the vaunted neutrality.

The Legislature asked to see the results of this survey of judges.  The Supreme Court said “No.”  First the Court administrator claimed that the survey results had been destroyed, along with the names of many sitting judges who responded to the survey.  When the Legislature issued a subpoena for the records, the Supreme Court fought back with an order voiding the subpoena.

So, the peoples’ branch of state government, the Legislature, is trying to constrain the judicial branch to its limited and proper role.  The judicial branch is fighting back to preserve its power and its ability to effectively control the destiny of Montana.  The judicial branch is fiercely defending its institutional ability to facilitate an ongoing shift of power, money, and choice from people to government by keeping the judiciary populated with judges who’s political donations go almost exclusively to Democrats.

Meanwhile, the media, theoretically a staunch defender of Montana’s open records that the Supreme Court is trying desperately to hide, is carefully underreporting this consequential power struggle.  Yes, there has been a story or two about this contest, but only a fraction of the headlines there would be if a media information request had been similarly thwarted by arrogant and self-serving court orders.

Only time will tell if the people, via their delegates in the Legislature, will be able to wrest ultimate control of Montana from a few elite actors in the judicial branch, the Copper Kings of the modern era who now control Montana.  The Legislature has appointed a Special Select Committee to delve into this.  We’ll see where that goes.

 [Editor’s Note: This op-ed was written by Gary Marbut, and taken from an email sent to MSSA supporters. To support the MSSA, click here]




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