State Senate Republicans empaneled to “rein in” the courts got their first chance to question a district judge on Monday. It did not go smoothly.
Judge Mike Menahan of the First Judicial District in Helena was asked to swear an oath to testify truthfully, something rarely done outside of court proceedings or notorizations. The judge declined, explaining that in his decade-plus experience with the Legislature, including four years as a Democratic state representative for Helena, he’d never seen anyone compelled to do so.
The Senate Select Committee on Judicial Oversight and Reform was created in April, shortly after the Montana Supreme Court declared that four new voting laws passed by the Legislature violated voters’ constitutional rights.
Menahan said he initially declined a request from the committee to testify out of concern that “they haven’t articulated any policy objectives” and were “summoning me here for the sole purpose of asking questions about cases that are currently pending in my court.”
Pending before the court on Monday was Menahan’s decision, delivered Tuesday, that Montana’s secretary of state stop disqualifying the signatures of inactive voters on ballot petition drives aimed at securing abortion rights in the state Constitution and changing election rules.
While Senate President Jason Ellsworth, R-Hamilton, kept the conversation away from Menahan’s current docket, Sen. Barry Usher, R-Laurel, accused the judge of “receiving a lot of awards, or several awards” from abortion rights organizations during Menahan’s time as a legislator (2009-2012) and asked whether Menahan felt the need to recuse himself from abortion-related cases.
Variations of the implied accusation — that judicial rulings are based on personal preference, rather than on the merits as argued in court — cycled through social media following the injunction Menahan issued against Secretary of State Christi Jacobsen.
“In a just world, these Democrat judges would be impeached for their repeated violations of the Constitution and the Code of Judicial Conduct,” long-time Republican strategist Jake Eaton posted on X. Eaton also said Planned Parenthood gave Menahan high marks on its legislative scorecard more than a decade ago.
Menahan offered Usher an explanation with a sizable dose of context.
“Mr. President, Sen. Usher, I voted on a lot of bills during the Legislature. I never received any award from any entity that has to do with abortion. I certainly voted, when I served in the Legislature, on bills that affected that subject, that various interest groups are interested in, one way or the other. And so, to the extent that I might have had some kind of accolade or endorsement or something like that, from NARAL or from Planned Parenthood, I never sought that endorsement, and I’ve never given them money, and I have had nothing to do with those entities.
“I’m not the first Montana District Court judge to have that honor” of being a state legislator, Menahan continued. “Russ Fagg was a District Court judge, Kirk Krueger in Butte. There have been others. We have Nels Swandal, he’s the opposite. Jean Turnage, served for, I think, 24 years in the House and Senate from Lake County before he was elected Chief Justice of the Supreme Court. Justice [Jim] Rice served, I believe, 16 years in the House of Representatives. All of them cast countless votes on bills that some entity had an interest in, but once they became a judge, the rules related to them don’t require them to recuse themselves on cases in which there was a policy interest years before at the Legislature. And so, there’s no requirement under the Code of Judicial Conduct or elsewhere that requires Justice Rice, myself, or any of those people that I mentioned to recuse themselves. I happen to do so in any case involving the Democratic Party, and any case — well, I don’t do that anymore, but I did for a while, with anybody who’s an individual member of the Legislature.”
Most of the judges Menahan mentioned served as Republican legislators.
Usher then apologized.
“I just wanted to say thank you for your answer, and I apologize that, if you did not get an award, that’s what I was told. So, I’ll stand corrected if that’s true, but I appreciate your answer. Thank you,” Usher said.
Thirty-nine laws passed by the 2021 Legislature sparked lawsuits. That session marked the first time in 18 years that Republicans controlled both the Legislature and the governor’s office, which effectively reduced the threat of a governor’s veto of laws passed by lawmakers.
In cases in which the courts ruled against the new laws, Republican lawmakers alleged liberal judicial bias. A legislative committee to investigate judicial conduct was created, the Legislature issued subpoenas to judges and court staff, and a report was issued summarizing a conflict that resulted in a (failed) appeal to the U.S. Supreme Court.
The latest committee, the Senate Select Committee on Judicial Oversight and Reform, is exploring the prospect of instituting checks on judicial authority. Monday’s focus was on judicial performance evaluations, and was followed by a frustrated exchange with Menahan and state judiciary staff about how lawsuits concerning the Legislature are assigned to judges.