This story was originally published by Daily Montanan: URL: https://dailymontanan.com This story has not been altered or edited. (C) Daily Montanan. Licensed for re-distribution through Creative Commons license CC BY-NC-ND 4.0. ------------ Montana Supreme Court must be more open now than ever – Daily Montanan ['More From Author', 'June', 'James C. Nelson'] Date: 2022-06-09 00:00:00 In his June 8, commentary “How the Supreme Court Works” author, John Moore, notes that administrative proceedings before the Montana Supreme Court are open to the public, whereas the Court’s deliberations on appealed cases are closed to public scrutiny. He then closes with a question: “What do you think?” As the author of the concurrence and dissent (cosigned by Justice Terry Trieweiler) in “In re the Selection of a Fifth Member to the Montana Districting and Apportionment Commission” discussed by Moore, I believe that now, more than ever before, the deliberations of the Montana Supreme Court must be opened to the public. I am not going to rehash here the arguments supporting why the Supreme Court must comply with the Right to Know provision in Article II, section 9 of Montana’s Constitution; those arguments are discussed at length in my concurrence and dissent—as are the arguments to the contrary—and I stand by my opinions. Here is why I believe that the court’s compliance with the right to know is particularly urgent. When I served on the Court from May 1993 to January 2013, justices were appointed or elected largely on the basis of their experience and character. Justices came to the court from a wide range of backgrounds, including the practicing bar, the district courts, and the executive and legislative branches. Some justices had been Republicans, some Democrats, and some independents. I say “had been” because in my experience, once sworn in as a member of the Court, justices ceased being partisans. The justices I served with most certainly had different judicial philosophies, but when it came to appealed cases, each justice followed the facts, the law, and the Constitution—to which as to the last of these, each swore an oath to support, protect and defend. I cannot recall a time during the nearly 20 years of my judicial service, that any justice argued for a decision based on partisan politics, religious ideology, or in support of or against some special interest. To be sure, the court’s deliberations included debates and discussions—some of which were heated. But, at the end of the day, each justice voted on the basis of the factual record before the court, on how he or she believed the law or Constitution applied to those facts, and based on the arguments made in the various briefs. Now, however, the Republican party has made it its goal to marginalize the Supreme Court and to bring it to heel to that party’s partisan ideology—that is to say, to destroy the constitutional separation of powers mandated in Article III, Section 1, and the system of checks and balances that underpin our democracy. Specifically, Gov. Greg Gianforte and the 2021 legislature summarily disposed of the Judicial Nomination Commission, a body which had successfully functioned for 50 years in placing before the governor candidates for judicial appointments on the basis of the training, education, experience and character of the candidate— merit-based appointments. Judicial appointments necessitated by resignations or retirements, are now made by the governor from his own handpicked nominees— political cronyism. Early in the 2021 legislative session the legislature attempted to interfere with the internal workings of the Supreme Court, leveling allegations of bias, missing records and emails and issuing subpoenas to Montana Supreme Court justices. Republican legislators set up a committee to investigate the Supreme Court and its staff. Attorney General Austin Knudsen, through his lieutenant, went so far as to tell the court that Republican legislators would not comply with the Supreme Court’s order to halt the legislators’ attempts to acquire and publicize internal emails from the state’s judiciary. The Attorney General’s office contemptuously stated that the Legislature “does not recognize this court’s order” and will not allow the court to interfere with legislative investigation of “troubling conduct of the judiciary.” The 2021 legislature again promoted the election of Supreme Court justices by district, notwithstanding that the Supreme Court ruled in Reichert v. State, that a similar referendum proposal passed out of the 2011 Legislature violated the Constitution. And finally, James Brown, encouraged and openly endorsed by Gianforte, Knudsen, U.S. Sen. Steve Daines and the state Republican Party, has been enlisted to run against incumbent Justice Ingrid Gustafson. While judicial races in Montana are supposed to be nonpartisan, Brown’s candidacy turns this requirement on its head. Brown is the Republican Party’s handpicked candidate for the Montana Supreme Court. So, to whom and what will he owe his fealty if elected? To the rule of law? To the Constitution? Or to the Republican Party? And that gets me back to Moore’s article and to his closing question. Since the Republican Party is hell-bent on politicizing the judiciary, marginalizing it and bringing it to heel to the party’s ideology, and, now, by handpicking and financing a judicial candidate for election to the Court, the public’s constitutional right to know is more critical and urgently needed than it ever was. The public and the media must be able to observe how cases are deliberated, what individual justices argue in support of or against a proposed decision, whether partisan and religious ideology is creeping into the court’s decision-making, whether partisan pressure is informing Court opinions, and whether and how partisan-picked justices are delivering to and for their benefactors. Every justice’s decision-making process must be a transparent, open book, and “We the People” have the right to be the watchdogs. The public and media are entitled to observe what are now closed deliberations, because without the ability to do so, we risk losing the one branch of government that has functioned independently, impartially, fairly, ethically and efficiently from the beginning of Montana’s statehood. We risk losing the separation of powers, the separation of church and state, and the system of checks and balances that enable our state to function with what little democracy is left after the executive and legislative branches’ impositions to govern by authoritarianism. In short, the public’s constitutional right to know must apply to all Supreme Court proceedings and deliberations, without exception. And, that’s what I think. [END] [1] Url: https://dailymontanan.com/2022/06/09/montana-supreme-court-must-be-more-open-now-than-ever/ Content is licensed through Creative Commons license CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/