In addition, the judge was just cleared by the Supreme Court for bias himself, and this ruling looks like a pay-back.
In a burgeoning constitutional crisis in Montana, caused largely by an activist judiciary filled with Democrats in an otherwise Republican state government, a liberal district judge from Lewis & Clark County has ruled that Montana Supreme Court Justices can live and work outside the law.
The controversy begins, which we have previously covered here, with Montana Supreme Court Justices using public time, technology, and resources – on the clock and doll of the taxpayer – to actively lobby against legislation they opposed and would one day have to rule on. Unironically, the legislation in question would have limited corruption in the judiciary, SB140, which would untangle the Governor’s constitutional responsibility to appoint justices without having his hands tied by a left-of-center advisory board consisting of those in the hip pocket of the judicaiary itself.
Emails between the Supreme Court Justice’s office administrator, the justices themselves, and district judges around the state made their way to Montana’s new Attorney General, Austin Knudsen. Because Knudsen’s job is to defend Montana’s laws in court – and SB140 became law – Knudsen revealed the emails to demonstrate that the justices were already biased before SB140 would come before them for judicial review. This is a clear violation of the Montana’s Judicial Code of Ethics, which maintains that judges must remain impartial on matters brought before their courts, until at such time they can be officially brought before them with arguments both before and against.
Meanwhile, that email thread demonstrated the abject contempt that Montana’s judiciary has for legislators and the people who elected them. With mocking tones and insults toward elected officials and the populace at large, they are damning evidence that our judiciary is anything but impartial. Furthermore, Chief Justice Mike McGrath had to recuse himself (under pressure) for ruling on SB140 because he had personally lobbied Gov. Greg Gianforte to veto it. His replacement, Judge Kurt Krueger, also was forced to recuse himself when emails revealed he also had bias against the bill.
To repeat, Mike McGrath recused himself and chose a replacement who was also biased and had to recuse himself – not willingly – but under pressure only after his bias was reported by others. The only term to describe this is corruption. To further the corruption, the Supreme Court justices comically ruled that the Supreme Court justices would not have to hand over information related to the subpoena (Justice Jim Rice was the only one to recuse himself from deciding a case in his own favor). This is like the County Attorney dropping criminal charges brought against him or her by the Sheriff. This is what one would call a “conflict of interest.”
House Leadership then used what has colloquially been called a legislative subpoena requesting information from the Justices’ office, particularly their email correspondence sent on public servers, from public computers, using public accounts, sent on the public payroll. When this effort failed, a Select Committee of both Republican and Democrat legislators demanded the justices come before them with the requested information. The justices appeared but refused to disclose public information to the elected representatives of the public.
The justices claimed ignorance, with one arguing that there isn’t enough data storage to secure their old emails (the most factually untrue and technologically absurd claim one could imagine. Another justice claimed he had never even thought about saving his emails. Incidentally, the justices claimed the emails had been deleted after they received the legislative subpoena.
However, anyone in government – from the President of the United States down to County Commissioners – are well aware that emails they send on public servers, on public time, regarding public business know that each and every email is the property of the public and may be requested either by executive or legislative inquiry, or by an inquiry from any member of the public.
On the federal level, these requests are known as Freedom of Information Act (FOIA) requests. Only that information that is classified for the sake of National Security or perhaps redacted to protect those presumed innocent, provide exceptions for such information requests. On a state-level in Montana, however, these requests fall under what is conventionally known as the “right to know law.”
Article 2, Section 9 of the state constitution states…
“No person shall be deprived of the right to examine documents of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” State law further gives citizens the right to inspect and copy public records.
The Montana Judiciary is certainly a part of “state government and its subdivisions.” If there is anything “in which the demand of individual privacy exceeds the merits of public disclosure” it certainly can’t apply to comments made in emails in regard to legislation. And if anything “personal” exists in those emails, they should not have been sent to or from government email accounts.
CONSTITUTIONAL CRISIS INTENSIFIES
In a snarky-worded ruling that was dripping in condescension to the elected leaders of Montana, Lewis and Clark County District Court Judge Mike McMahon just ruled that the court can ignore the legislative check-and-balance mandated in the Constitution, as well as ignore any request for publicly-accessible information from their public email accounts.
Judge Mike McMahon is an activist judge, who primarily uses his position in the judiciary to help Democrat officials. In 2019 he issued a preliminary injunction to support then-governor, Steve Bullock, in a dispute against then-Secretary of State, Corey Stapleton. In that matter, McMahon ruled that state regulations requiring governors to return vetoed bills by a specific deadline did not apply to Bullock.
In his ruling exempting the Supreme Court Justice from the Rule of Law, McMahon argued that the legislature’s attempts to obtain public information from the Judiciary was purely political.
Of course, there is absolutely no prohibition against the three branches of government balancing their power from political motivations. The only branch of government that is expected to be free of political biases was the judiciary – not the legislative branch. McMahon’s woeful self-unawareness as well as his general ignorance of the law has been frustrating to watch. He appears to think that the Supreme Court can be politically biased, but that the legislature cannot be. It is, of course, the opposite.
A JUDGE WITH A TARNISHED RECORD OF PERSONAL BIAS
The actions of Judge Mike McMahon in a homicide case last year had all onlookers gravely troubled that he was not impartial while hearing the case. McMahon was presiding as judge over the trial of Gregg Trude, who had accidentally discharged his firearm in a public parking lot and in the process killed Dr. Buzz Walton. However, his bias against Walton – was to be presumed innocent until proven guilty under the law – repeatedly showed.
Judge McMahon had said during the trial that the deceased phsyciain reminded him of his own father. He publicly stated (this is quite unbelievable) that he had made up his mind on a sentence for Trude before the verdict was even given. McMahon also showed emotionality, saying that the death reminded him of his brother-in-law’s death.
Any of these statements – any of them – would provoke a first-year defense attorney to file a motion for recusal. In most judicial environments, that recusal would be granted post-haste. But Montana’s judiciary truly believes it can get away with anything it wants and – up until the Republican takeover last November – it has been able to get away with anything it wants.
The judge told the defendant, “I will tell you, Mr. Trude, that the moment in court when I had to take a break to allow Mrs. Walton to gain her composure, I knew then that if I convicted you of negligent homicide, you were going to go to the Montana State Prison,” McMahon said during Trude’s sentencing.”
Ultimately, the liberal judge would sentence the man who accidentally killed a man with neglect to 20 years in prison, a sentence far exceeding what most thought reasonable and far exceeding sentences commonly handed down for intentional, premeditated homicide.
It wasn’t hard for Trude’s defense attorneys to request a hearing with the Montana Supreme Court to request he be tossed from the case for bias. Bias was in the court record and had come straight from Trude’s mouth. It should have been a non-issue, because his bias was clear.
Former district judge, Ed McLean, came out of retirement to hear the case. Cross-examinations with McMahon revealed he had a previous friendship with Walton, the deceased victim of negligence. That he chose to oversee the case anyway made someone within the room reportedly “slackjawed” in shock that the judge did not recuse himself from the case. It turns out, McMahon and Walton were co-coaches for the same youth sports team.
Four months after McMahon’s trial for partiality and unfairness, the judge appointed over the case by the Montana Supreme Court, Ed McLean, cleared McMahon of wrong-doing. In fact, he claimed that McMahon “acted with integrity and honesty in the proceeding.” To any impartial observer, the bias was obvious, as well as McMahon’s deceit.
However, the ruling that technically “absolved” McMahon of judicial bias was really a back-handed way of admitting that Trude’s attorneys were correct. As they on one hand said McMahon wasn’t biased, on the other hand (upon hearing the evidence) immediately offered to reduce Trude’s sentence from 20 years to 318 days (accounting for good behavior and time-served).
McMahon’s bias led to a reduction of the defendant’s sentence to 1/20th of its original amount.
THE LESSON LEARNED
The Montana judiciary, exceptions notwithstanding, is fundamentally corrupt. Take a step back and look at this ordeal from 30 thousand feet.
The legislature passed, and the governor signed, a bill designed to reign in the Supreme Court’s inherent bias. In their bias, the Supreme Court used their public email to send a poll *gauging judges’ biases* against the bill and also to lobby against the bill. When the existence of such emails became known, Republicans asked to see those emails (as is their right, and the right of any citizen within Montana) to further show the court’s bias. The Chief Justice had to resign when his bias became known, and his replacement also had to be removed for bias (which he did not admit, but had to be exposed). Regarding the legislature’s information request, the Supreme Court then ruled in their own personal favor, as though they were impartial in ruling against an inquiry of their own bias. And now, a judge they hand-selected to rule over the case (about their bias) was himself officially charged with bias only last year, who the Supreme Court had first absolved of bias.
This is a case of judges with documented bias absolving themselves of bias, therefore claiming they can preside over cases involving themselves. When challenged on that point, they hand-selected a judge with documented bias who only a year ago the Supreme Court absolved of bias. In return, that judge has now reciprocally absolved the Supreme Court justices of bias.
Some Republicans are now calling for new legislation designed to specify what Montana’s law code already states – that the Supreme Court has to follow the same laws as every other branch of government. The problem is, whatever future law might further reiterate reality will ultimately be overturned by the Supreme Court.
See the problem? This is why what is happening in Montana is truly a constitutional crisis. With one branch of government absolutely unconcerned about the law, the other two branches of government must exercise brute power to supplant and replace them by all legal means necessary.