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Justice Rice upholds judge-appointment law – but blasts attorney general, GOP-led Legislature

Calls actions `destructive to democratic gov't'
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Posted at 9:48 AM, Jun 11, 2021
and last updated 2021-06-11 19:31:40-04

HELENA — While Montana Supreme Court Justice Jim Rice joined the court’s majority Thursday to uphold a Republican-passed law giving the governor more power to appoint state judges, he used his concurrence to blast two leading supporters of the law: Republican Attorney General Austin Knudsen and the GOP-led Legislature.

Rice, a former Republican legislator himself, ripped into Knudsen and his office for defying and criticizing earlier orders in the case, saying the behavior is “destructive to our democratic system of government.”

He compared Knudsen’s behavior to that of President Andrew Jackson in the 1830s, when Jackson defied the U.S. Supreme Court to force Cherokee Indians off their land in Georgia and move them to Oklahoma, instigating the infamous “Trail of Tears.”

“Unfortunately, the attorney general is not the first to choose this dark pathway,” Rice wrote.

Rice’s 10-page special concurrence also said the Legislature and its attorneys engaged in “duplicitous actions” when seeking to intervene in the case, saying they would abide by all court orders when they later argued that they’d comply only with orders “that the court has proper jurisdiction to issue.”

“The Legislature thus clearly demonstrated it had gained intervention into this proceeding by misrepresenting its position to this court, and to opposing counsel as well,” Rice wrote. “These actions were dishonest and contemptuous.”

Knudsen’s office, which represented the Legislature in some aspects of the case, issued a stinging reply to Rice late Thursday.

Montana Attorney General Austin Knudsen (April 2021)
Montana Attorney General Austin Knudsen.

It called Rice’s concurrence “an emotional rant” and said his “personal attacks are a transparent ploy to distract from his own inappropriate behavior in this case.”

When asked by MTN News what “inappropriate behavior” Rice engaged in, Knudsen's office said the justice had not disclosed public documents, and issued "self-serving rulings" and weekend orders.

Rice’s concurrence is yet another chapter in what’s become a running battle waged by Republican leadership at the Legislature and Knudsen and his office against the Supreme Court and the state’s judiciary.

Ironically, the dispute began over allegations by Knudsen and other Republicans that the Supreme Court was biased against the law that it upheld Thursday.

GOP critics of the court had pointed to a poll of state district judges, undertaken by a Supreme Court administrator earlier this year, that showed most judges opposed the GOP-passed law.

The law eliminated a 48-year-old commission that had vetted applicants for judicial vacancies, and instead gives Gov. Greg Gianforte the power to appoint stater judges directly, when a vacancy occurs.

A group of former state officials challenged the law as unconstitutional, saying the commission was intended by constitutional delegates.

But, with Rice in agreement, the Supreme Court Thursday ruled that the constitution gave the Legislature the power to design the judicial-appointment process. The order upheld the new law, which was passed in February.

As the court considered the case challenging the law, Republican leadership in the Legislature – aided by Knudsen – began issuing subpoenas seeking emails and other internal communications from the high court and the judiciary, alleging bias by the justices.

The Supreme Court quashed these subpoenas while it considered their legality – a case still pending before the court.

But Knudsen’s office said in an April 12 letter to the court that the initial order quashing the subpoenas was invalid and that the Legislature wouldn’t follow it. He also sent another defiant letter six days later, calling the court’s actions “ludicrous.”

In his opinion Thursday, Rice said the separation of powers in U.S. and state governments is a limitation on power, and that the judiciary defines those limits.

“The surprising thing about the Department of Justice’s letters was the ignorance of history and long-established legal precedent they embodied, because, since the early 1800s, `the idea that the Supreme Court … and its decisions were final and binding upon the other two departments of government has been widely accepted,’” Rice wrote.

But that judicial power must depend on the executive branch for enforcement, Rice said – and that’s why Knudsen’s “defiance” is so troubling.

“By repeatedly refusing to comply, the attorney general engages in actions that are destructive to our democratic system of government,” Rice said.

Montana’s system of government has “legally permissible” ways to disagree with a court decision, Rice wrote: Asking for a rehearing, passing legislation, amending the constitution or selecting different judges during elections.

“Sending the court letters in defiance of its orders is not a legally available option under the Montana constitution,” he wrote.

Rice said the “rightful consequence” for actions by Knudsen and the Legislature would be for the court to sanction the Department of Justice and to revoke the Legislature’s intervention in the case.

But, he said until either of them can “demonstrate a proper understanding of the judiciary’s constitutional authority, there is little hope they could comprehend contempt of it.”