Montana lawmakers may move court administration away from Supreme Court

The Montana Senate Judiciary Committee heard a bill, Senate Bill 230, that would appear to make a minor organizational tweak that opponents said will have a huge effect on how the state’s courts would run.

Sen. John Fuller, R-Kalispell, is proposing to move the administrator of the courts, currently supervised by the chief justice and the Montana Supreme Court, to supervision of the Clerk of the Supreme Court, an elected position that is part of the state’s administration.

The move wouldn’t just transfer supervisory power of one employee from one branch of government to another, it would also mean the day-to-day operations of the court would fall under the executive branch, something that proponents warned wasn’t just a political problem, but a legal one: The state constitution vests control of the courts at all levels with the state’s Supreme Court.

No one besides Fuller spoke in favor of the bill.

The Montana Constitution gives judicial power to the various courts, but specifies in Article VII, Section 2 that the “Supreme Court has general supervisory control over all other courts.”

Opponents of the bill said the move is clearly unconstitutional.

Sean Slanger, an attorney and lobbyist for the Montana State Bar, told the committee that the court administrator had supervisory powers regarding how the courts run, what its policies are, and even document retention. It has 77 employees.

However, the smaller office of Clerk of the Supreme Court was established as the “front door” to the Supreme Court and ensures the public has access to the Supreme Court, and the filings are made public. The clerk is a partisan statewide elected position, whereas the court administrator is appointed.

“They have separate functions,” Slanger said.

Blaine County Justice of the Peace Perry Miller told committee members that he’s been on the bench for nearly 30 years and is impressed by the professionalism and leadership of the court administrator and the Montana Supreme Court.

He said there’s more to the court than most Montanans would believe, including running drug courts, self-help centers and even coordinating the technology. He said that during the COVID-19 pandemic, the chief justice and the court administrator were creative and adamant that the courts remain open or accessible to Montanans, no small task during a nationwide crisis.

“The court remained open and accessible to every citizen,” he said. “If you do this, it will not function as well as it does now.”

Current Clerk Bowen Greenwood, a Republican who previously worked as a public information officer for the Montana Public Service Commission and the Secretary of State, said that his office stood ready to make the change, and said it works with the court administrator’s office daily.

Bruce Spencer, who represented the Montana Judges Association, said the bill creates problems with the separation of powers.

Fuller, who teaches government in schools, said that his bill was about adopting more “federalism” in the State of Montana. He also didn’t deny that part of his proposal was taking aim at what he saw as a judicial system that has been politicized.

During the last legislative session, Republicans accused the state’s courts and judges of being prejudicial, and weighing in on legislation that affected the courts by using the state courts administrator to conduct polling for the judges, something the GOP claimed was against state policy. However, in a lengthy battle that included subpoenas on the weekend and a special committee to investigate the judiciary, Republicans were repeatedly thwarted from exerting more control over the independent judiciary, in part buttressed by the state’s constitution.

And even though judges had been polled historically by the court administrator, and lawmakers tried unsuccessfully to gather email evidence, the tension between the lawmakers and judges continued to simmer throughout the interim as a record number of bills – more than 20 – were challenged in district court, with some still pending, and many being declared unconstitutional or illegal. That has led to more allegations by politicians that the judges are liberal or legislating from the bench.

“The purpose and intent is to bring sunlight to the judiciary,” Fuller said. “There’s been a lot of concern about a judicial system that my constituents say is a lot like a self-licking ice cream cone. I want it to be obvious to the great state that the judiciary is working for the people of Montana.”