The Republican-led committee voted to send a letter to the state Supreme Court questioning how retired justices are appointed
Republican members of the Senate Select Committee on Judicial Oversight and Reform held a fourth meeting on July 29 to continue learning about the judicial branch and what role the Montana Legislature might assert in reining in what members described as a Supreme Court that acts as a “super legislature.”
The committee hearing included a wide-ranging discussion with retired district court judge Blair Jones, Billings attorney Mark Parker and Helena attorney Peter Habein, chairman of the State Bar of Montana Ethics Committee.
As with previous committee hearings, Democratic members of the Legislature called the committee an attack on the judicial branch, and were not in attendance.
The only action item that came from the more than six-hour meeting, was a unanimous vote by Republican senators in attendance to send a letter to the justices of the Montana Supreme Court inquiring as to the ethical considerations of appointing retired judges to preside over a case.
The letter, which was also sent to district court judge Mike Menahan, who appeared before the committee earlier in July, and several court employees, invoked concerns by legislators over a lack of transparency and accountability when the chief justice appoints retired judges.
“Once a judge retires, he or she is no longer accountable to the people through the electoral process,” the letter states. “The judge is eligible for this appointment based on past service, which may have ended last week or decades ago. Yet, the decisions handed down by the appointed judge may impact Montana far into the future.”
Lawmakers specifically pointed to retired Gallatin County judge Michael Salvagni, who struck down a series of housing bills passed during the 2023 session. The legislation “was thoughtfully drafted, vetted through a public process, debated on the floors of both chambers, and passed by a recently-elected group of bipartisan legislators,” the letter states. “In contrast, retired judge Salvagni was last subject to a vote of the people a decade ago, retired eight years ago and is accountable to just one person, the Chief Justice. There is no way for the public, who are deeply impacted by his ruling, to hold him accountable for it.”
Several other judges are called out by name, with legislators concerned that some retired judges have “pierced the veil of the judiciary by committing malfeasance, participating in active litigation, and engaging in violent political rhetoric,” but may still be selected to preside over cases.
These include Lake County judge Kim Christopher, who resigned this spring after a controversial child custody ruling; Anaconda-Deer Lodge judge Ray Dayton, who was suspended without pay after making inappropriate sexual comments about individuals in a case; retired judge Michael Moses, who made negative comments about State counsel and is said to have expressed his personal beliefs on a case pending before the state Supreme Court he adjudicated at the district level; six justices who wrote an amici brief in Held v. Montana; and former Supreme Court Justice Jim Nelson, who has been under fire by the state GOP for statements made against the Legislature, Governor, and most recently that the attempted assassination of former president Donald Trump was “blow-back from the bad karma that [he’s] dumped on other people for years.”
“We are disturbed by the actions of these former jurists, but mostly we are gravely concerned that a system may proliferate that eschews accountability in favor of expediency,” the lawmakers write, followed by a series of questions about the process the Chief Justice follows when appointing retired judges.
Answers to the letter are requested in writing by noon on August 12.
A large portion of the July 29 hearing involved a wide ranging discussion with retired district court judge Blair Jones, heavily centered around the Code of Judicial Conduct. Jones is the father of Emily Jones, an attorney who has often appeared as representative of the Gianforte administration and who exercises a consulting role in the office of the Attorney General
Members of the committee queried Jones about judicial ethics, ex parte communications, and how retired judges are selected to preside over a case.
Legislators also probed Blair for remedies when the courts strike down duly passed statutes, venting their frustrations at working hard to craft bills they believe should pass legal analysis, only to see them fall to the opinions of justices. This line of questioning drove directly into the heart of why the GOP formed the select committee after a series of court rulings following the last two sessions overturned several Republican-passed laws.
“We’re frustrated because we have lots of legal minds look at these bills, not only our own staff but we have people from all over the country that are lawyers for think tanks that know the Constitution, and then we write a bill.. and they get rid of it,” Sen. Steve Hinebauch, R-Wibaux, said. “We’re just wondering what works? Where do we go from here? What do we do?”
“We had an old judge down in our neck of the woods one time, kind of a crusty old fellow, and he said ‘you know the Supreme Court is not always right, they’re just final,’ and he had it right,” Jones replied. “When the courts declare your statutes unconstitutional, then, as law abiding citizens, we have to abide by that.”
“I don’t think you can ignore the court,” he continued. “Marbury vs. Madison, you know, for 200 years has stood for the proposition that the courts declare what the law is. So that’s the principle I think we have to uphold.”
Senate President and committee chair Jason Ellsworth, R-Hamilton, said that he ultimately agreed with Blair in that the Legislature should “stay within our lane.”
“That is something that we need to recognize and rise to that challenge for the people of Montana,” Ellsworth said. “The courts are separate. They are co-equal, whether we like that or not, whether it suits our political purposes or not. But we do need to keep that in front of us as legislators representing the people of Montana. So whether we like the outcome of something necessarily shouldn’t be the gauge. The gauge should be is it serving Montana correctly, do we believe we’re following within the Constitution. That’s our obligation in the Legislature and representing the people. This is what this committee is about, is separation of powers.”
The next meeting of the Senate Select Committee on Judicial Oversight and Reform will take place Aug. 19 and 20. Meetings are streamed live on leg.mt.gov and archived.