HELENA — During a Montana Constitutional Convention Anniversary panel Thursday, Montana Supreme Court Justice Jim Rice called out the state’s executive and legislative branches for more than a year of attempting to undermine and reduce judicial authority in Montana.
The panel, titled “The Basic Rule of Law: The Backbone of a Constitution” was moderated by Greg Petesch, the former legal director of the Legislative Council. The panelist included Rice, Rep. Bill Mercer, R-Billings and Anita Milanovich, chief legal counsel to Gov. Greg Gianforte. Lt. Gov. Kristen Juras was meant to speak on the panel but was unavailable due to the massive spring flooding.
Rice’s speech was a commentary on the ongoing power struggle between the three branches, which began in earnest during the 2021 Legislative Session.
Gianforte would later declare his support for the Legislature’s actions in a brief to the U.S. Supreme Court. Rice is one of two Montana Supreme Court justices up for reelection this year. Rice is one of two Montana Supreme Court justices up for reelection this year. While judicial races are nonpartisan, the Governor’s wife, Susan Gianforte, expressed her support for Rice in an email inviting guests to a fundraiser at her home in May.
During last session, GOP lawmakers accused the Montana judges across the state of having inappropriate conversations with one another about pending legislation. Later, Supreme Court Administrator Beth McLaughlin acknowledged deleting some of the emails requested by legislators. To try and recover those emails, lawmakers issued subpoenas to seize massive amounts of judicial communications, Rice said.
“On a tight trigger time frame," Rice said. "Less than two days.”
The Montanan Supreme Court quashed the subpoena for McLaughlin's emails. McLaughlin argued in an emergency motion her emails included private, confidential and privileged information.
In response, the Legislature and the Department of Justice, headed by Attorney General Austin Knudsen, told the court they would not obey the court order.
“And the extreme language that we’ve seen in our nation went along with it. Where a statewide public official said to the public the supreme court justices on the Montana Supreme Court are corrupt," Rice said. "Corrupt. I don’t feel corrupt.”
The legislature issued more subpoenas and tried to seize the justices’ private communications, including records from Rice's personal cell phone, he said.
Rice said he loved the legislature. Rice was a Republican member of the state House of Representatives for three terms and served as House Majority Whip during the 1993 session.
“So it was hard," Rice said. "To sue the legislature.”
Rice challenged the subpoena in Lewis and Clark District Court and won.
After Rice spoke fellow panelist, Rep. Bill Mercer, R-Billings, addressed the justice’s comments.
“I don’t want to relitigate the case," Mercer said. "I will say this. The interesting public policy question is, where does the right to know begin and end with respect to all the branches.”
Mercer acknowledged what happened between the Legislature and Rice was not a matter of the court denying a right to know request.
“But I think the larger question for the future is does the right to know extend to the judicial branch and to what extent," Mercer said. "And I think that’ll be an issue that we’ll continue to wrestle with."
The reaction to the certification of the 2020 Election coupled with the actions of the 2021 legislature and the extreme polarization in the nation made him think, Rice said. He said he’d been foolish and short sighted.
“I thought how foolish I have been and how short sighted, to assume that our institutions would always endure," Rice said. "And as I sat there thinking about that, will our institutions be lost?”
But then Rice said he thought: “Over my dead body.”
The Supreme court checks the legality of actions taken by the other two branches of government, Rice said. But, during the question portion of the panel, Rice said the justices don’t go into a case asking if it is possible to strike down legislation.
“The question we ask is it possible to affirm it?" Rice said. "Can we affirm it? Is there a way to respect the legislative process."
The legislature can take many actions in response to a court order, Rice said, including passing new laws, electing new judges and appealing decisions.
“You can do a lot of things," Rice said. "You can’t refuse to abide by court orders.”
Rice was the only panelist to whom the crowd gave a standing ovation.
