Town Pump reported a diesel spill at its 3700 Harrison operation. The spill occurred an January 30. Reporter Michael Cast posted the story March 9 on the Montana Standard website. Here's the release from Town Pump.
In 2007, Jeff Bezos, then a multibillionaire and now the world’s richest man, did not pay a penny in federal income taxes. He achieved the feat again in 2011. In 2018, Tesla founder Elon Musk, the second-richest person in the world, also paid no federal income taxes.
Michael Bloomberg managed to do the same in recent years. Billionaire investor Carl Icahn did it twice. George Soros paid no federal income tax three years in a row.
ProPublica has obtained a vast trove of Internal Revenue Service data on the tax returns of thousands of the nation’s wealthiest people, covering more than 15 years. The data provides an unprecedented look inside the financial lives of America’s titans, including Warren Buffett, Bill Gates, Rupert Murdoch and Mark Zuckerberg. It shows not just their income and taxes, but also their investments, stock trades, gambling winnings and even the results of audits.
Taken together, it demolishes the cornerstone myth of the American tax system: that everyone pays their fair share and the richest Americans pay the most. The IRS records show that the wealthiest can — perfectly legally — pay income taxes that are only a tiny fraction of the hundreds of millions, if not billions, their fortunes grow each year.
Many Americans live paycheck to paycheck, amassing little wealth and paying the federal government a percentage of their income that rises if they earn more. In recent years, the median American household earned about $70,000 annually and paid 14% in federal taxes. The highest income tax rate, 37%, kicked in this year, for couples, on earnings above $628,300.
The confidential tax records obtained by ProPublica show that the ultrarich effectively sidestep this system.
America’s billionaires avail themselves of tax-avoidance strategies beyond the reach of ordinary people. Their wealth derives from the skyrocketing value of their assets, like stock and property. Those gains are not defined by U.S. laws as taxable income unless and until the billionaires sell.
To capture the financial reality of the richest Americans, ProPublica undertook an analysis that has never been done before. We compared how much in taxes the 25 richest Americans paid each year to how much Forbes estimated their wealth grew in that same time period.
We’re going to call this their true tax rate.
The results are stark. According to Forbes, those 25 people saw their worth rise a collective $401 billion from 2014 to 2018. They paid a total of $13.6 billion in federal income taxes in those five years, the IRS data shows. That’s a staggering sum, but it amounts to a true tax rate of only 3.4%.
It’s a completely different picture for middle-class Americans, for example, wage earners in their early 40s who have amassed a typical amount of wealth for people their age. From 2014 to 2018, such households saw their net worth expand by about $65,000 after taxes on average, mostly due to the rise in value of their homes. But because the vast bulk of their earnings were salaries, their tax bills were almost as much, nearly $62,000, over that five-year period.
The Ultrawealthy by the Numbers
Wealth, income and taxes for four of the richest people in the country from 2014 to 2018.
No one among the 25 wealthiest avoided as much tax as Buffett, the grandfatherly centibillionaire. That’s perhaps surprising, given his public stance as an advocate of higher taxes for the rich. According to Forbes, his riches rose $24.3 billion between 2014 and 2018. Over those years, the data shows, Buffett reported paying $23.7 million in taxes.
That works out to a true tax rate of 0.1%, or less than 10 cents for every $100 he added to his wealth.
In the coming months, ProPublica will use the IRS data we have obtained to explore in detail how the ultrawealthy avoid taxes, exploit loopholes and escape scrutiny from federal auditors.
Experts have long understood the broad outlines of how little the wealthy are taxed in the United States, and many lay people have long suspected the same thing.
But few specifics about individuals ever emerge in public. Tax information is among the most zealously guarded secrets in the federal government. ProPublica has decided to reveal individual tax information of some of the wealthiest Americans because it is only by seeing specifics that the public can understand the realities of the country’s tax system.
Consider Bezos’ 2007, one of the years he paid zero in federal income taxes. Amazon’s stock more than doubled. Bezos’ fortune leapt $3.8 billion, according to Forbes, whose wealth estimates are widely cited. How did a person enjoying that sort of wealth explosion end up paying no income tax?
In that year, Bezos, who filed his taxes jointly with his then-wife, MacKenzie Scott, reported a paltry (for him) $46 million in income, largely from interest and dividend payments on outside investments. He was able to offset every penny he earned with losses from side investments and various deductions, like interest expenses on debts and the vague catchall category of “other expenses.”
In 2011, a year in which his wealth held roughly steady at $18 billion, Bezos filed a tax return reporting he lost money — his income that year was more than offset by investment losses. What’s more, because, according to the tax law, he made so little, he even claimed and received a $4,000 tax credit for his children.
His tax avoidance is even more striking if you examine 2006 to 2018, a period for which ProPublica has complete data. Bezos’ wealth increased by $127 billion, according to Forbes, but he reported a total of $6.5 billion in income. The $1.4 billion he paid in personal federal taxes is a massive number — yet it amounts to a 1.1% true tax rate on the rise in his fortune.
The revelations provided by the IRS data come at a crucial moment. Wealth inequality has become one of the defining issues of our age. The president and Congress are considering the most ambitious tax increases in decades on those with high incomes. But the American tax conversation has been dominated by debate over incremental changes, such as whether the top tax rate should be 39.6% rather than 37%.
ProPublica’s data shows that while some wealthy Americans, such as hedge fund managers, would pay more taxes under the current Biden administration proposals, the vast majority of the top 25 would see little change.
ProPublica is not disclosing how it obtained the data, which was given to us in raw form, with no conditions or conclusions. ProPublica reporters spent months processing and analyzing the material to transform it into a usable database.
We then verified the information by comparing elements of it with dozens of already public tax details (in court documents, politicians’ financial disclosures and news stories) as well as by vetting it with individuals whose tax information is contained in the trove. Every person whose tax information is described in this story was asked to comment. Those who responded, including Buffett, Bloomberg and Icahn, all said they had paid the taxes they owed.
A spokesman for Soros said in a statement: “Between 2016 and 2018 George Soros lost money on his investments, therefore he did not owe federal income taxes in those years. Mr. Soros has long supported higher taxes for wealthy Americans.” Personal and corporate representatives of Bezos declined to receive detailed questions about the matter. ProPublica attempted to reach Scott through her divorce attorney, a personal representative and family members; she did not respond. Musk responded to an initial query with a lone punctuation mark: “?” After we sent detailed questions to him, he did not reply.
One of the billionaires mentioned in this article objected, arguing that publishing personal tax information is a violation of privacy. We have concluded that the public interest in knowing this information at this pivotal moment outweighs that legitimate concern.
The consequences of allowing the most prosperous to game the tax system have been profound. Federal budgets, apart from military spending, have been constrained for decades. Roads and bridges have crumbled, social services have withered and the solvency of Social Security and Medicare is perpetually in question.
There is an even more fundamental issue than which programs get funded or not: Taxes are a kind of collective sacrifice. No one loves giving their hard-earned money to the government. But the system works only as long as it’s perceived to be fair.
Our analysis of tax data for the 25 richest Americans quantifies just how unfair the system has become.
By the end of 2018, the 25 were worth $1.1 trillion.
For comparison, it would take 14.3 million ordinary American wage earners put together to equal that same amount of wealth.
The personal federal tax bill for the top 25 in 2018: $1.9 billion.
The bill for the wage earners: $143 billion.
The idea of a regular tax on income, much less on wealth, does not appear in the country’s founding documents. In fact, Article 1 of the U.S. Constitution explicitly prohibits “direct” taxes on citizens under most circumstances. This meant that for decades, the U.S. government mainly funded itself through “indirect” taxes: tariffs and levies on consumer goods like tobacco and alcohol.
With the costs of the Civil War looming, Congress imposed a national income tax in 1861. The wealthy helped force its repeal soon after the war ended. (Their pique could only have been exacerbated by the fact that the law required public disclosure. The annual income of the moguls of the day — $1.3 million for William Astor; $576,000 for Cornelius Vanderbilt — was listed in the pages of The New York Times in 1865.)
By the late 19th and early 20th century, wealth inequality was acute and the political climate was changing. The federal government began expanding, creating agencies to protect food, workers and more. It needed funding, but tariffs were pinching regular Americans more than the rich. The Supreme Court had rejected an 1894 law that would have created an income tax. So Congress moved to amend the Constitution. The 16th Amendment was ratified in 1913 and gave the government power “to lay and collect taxes on incomes, from whatever source derived.”
In the early years, the personal income tax worked as Congress intended, falling squarely on the richest. In 1918, only 15% of American families owed any tax. The top 1% paid 80% of the revenue raised, according to historian W. Elliot Brownlee.
But a question remained: What would count as income and what wouldn’t? In 1916, a woman named Myrtle Macomber received a dividend for her Standard Oil of California shares. She owed taxes, thanks to the new law. The dividend had not come in cash, however. It came in the form of an additional share for every two shares she already held. She paid the taxes and then brought a court challenge: Yes, she’d gotten a bit richer, but she hadn’t received any money. Therefore, she argued, she’d received no “income.”
Four years later, the Supreme Court agreed. In Eisner v. Macomber, the high court ruled that income derived only from proceeds. A person needed to sell an asset — stock, bond or building — and reap some money before it could be taxed.
Since then, the concept that income comes only from proceeds — when gains are “realized” — has been the bedrock of the U.S. tax system. Wages are taxed. Cash dividends are taxed. Gains from selling assets are taxed. But if a taxpayer hasn’t sold anything, there is no income and therefore no tax.
Contemporary critics of Macomber were plentiful and prescient. Cordell Hull, the congressman known as the “father” of the income tax, assailed the decision, according to scholar Marjorie Kornhauser. Hull predicted that tax avoidance would become common. The ruling opened a gaping loophole, Hull warned, allowing industrialists to build a company and borrow against the stock to pay living expenses. Anyone could “live upon the value” of their company stock “without selling it, and of course, without ever paying” tax, he said.
Hull’s prediction would reach full flower only decades later, spurred by a series of epochal economic, legal and cultural changes that began to gather momentum in the 1970s. Antitrust enforcers increasingly accepted mergers and stopped trying to break up huge corporations. For their part, companies came to obsess over the value of their stock to the exclusion of nearly everything else. That helped give rise in the last 40 years to a series of corporate monoliths — beginning with Microsoft and Oracle in the 1980s and 1990s and continuing to Amazon, Google, Facebook and Apple today — that often have concentrated ownership, high profit margins and rich share prices. The winner-take-all economy has created modern fortunes that by some measures eclipse those of John D. Rockefeller, J.P. Morgan and Andrew Carnegie.
In the here and now, the ultrawealthy use an array of techniques that aren’t available to those of lesser means to get around the tax system.
Certainly, there are illegal tax evaders among them, but it turns out billionaires don’t have to evade taxes exotically and illicitly — they can avoid them routinely and legally.
Most Americans have to work to live. When they do, they get paid — and they get taxed. The federal government considers almost every dollar workers earn to be “income,” and employers take taxes directly out of their paychecks.
The Bezoses of the world have no need to be paid a salary. Bezos’ Amazon wages have long been set at the middle-class level of around $80,000 a year.
For years, there’s been something of a competition among elite founder-CEOs to go even lower. Steve Jobs took $1 in salary when he returned to Apple in the 1990s. Facebook’s Zuckerberg, Oracle’s Larry Ellison and Google’s Larry Page have all done the same.
Yet this is not the self-effacing gesture it appears to be: Wages are taxed at a high rate. The top 25 wealthiest Americans reported $158 million in wages in 2018, according to the IRS data. That’s a mere 1.1% of what they listed on their tax forms as their total reported income. The rest mostly came from dividends and the sale of stock, bonds or other investments, which are taxed at lower rates than wages.
This summer, MAM is participating in EXTRACTION: Art on the Edge of the Abyss, a special project of the CODEX Foundation. It aims to produce a multimedia and multivenue art experience that investigates extractive industry in all its forms. With sites stretching throughout the United States and abroad, MAM is part of an organic collective of participating artists, art venues, curators, and arts supporters. MAM has developed a suite of exhibitions aimed at offering different perspectives:
Edge of The Abyss: Artists Picturing the Berkeley Pit includes artists Jean Arnold, Eben Goff, Kristi Hager, Marcy James, Peter Koch in collaboration with Didier Mutel and Nolan Salix. These artists present a dynamic range of perspectives in reaction to the former mine in Butte, ranging from awe at the grandeur of the landscape to concerns about land use and environmental impact. The Berkeley Pit began as a traditional copper mine in the late 19th century, which gave way to large-scale industrial excavation when an open pit mine was opened in 1955. Over 1.5 billion tons of material were eventually removed from the pit before it closed in 1982 and was designated as an EPA Superfund site in 1987. A second exhibition focuses instead on The Space of Hope: A Collective Response. The title of this exhibition is taken from a quote by author Rebecca Solnit: “We don’t know what is going to happen, or how, or when, and that very uncertainty is the space of hope.” Rather than focus on the devastation wrought by the intertwined processes of industrialization and cultural displacement, the goal of this exhibit is to provide a positive counter-narrative to the historical power structures inherent to extraction. This juried group exhibition includes Montana artists as well as artists from Tennessee, California, and New Mexico. MAM is grateful for project support from the Cultural Vision Fund for this exhibit.
In addition, MAM presents Jerry Rankin: Golden Sunlight, a suite of eight collagraphs focused on the environmental threats posed by the Golden Sunlight mine near his home in Whitehall, Montana. This exhibition was organized by the Missoula Art Museum and is touring the state under the auspices of the Montana Art Gallery Directors Association (MAGDA). MAM collection pieces are featured in Pennies from Hell: Selections from the MAM Collection, which focuses locally, investigating the problematic legacies of Milltown Dam, the Berkeley Pit and locations near Missoula. Featuring works by George Gogas, Mark Abrahamson, Gennie DeWeese, and others.
“These exhibitions can be seen as a series of both looking back, and looking forward,” said Brandon Reintjes senior curator at the museum. “The identities of many Montanans, as well as the state itself, have deep connections to the extractive industries, while many Native American communities in the state bear the the brunt of its repercussions. The Berkeley Pit in Butte, a focal point in these exhibits, is an infamous landmark in a state otherwise known for natural beauty,” he continued. Today, the Berkeley Pit is one of seventeen Superfund sites managed by the Department of Environmental Quality in Montana. The majority are located in the western half of the state and are related to extractive resource activity like destructive mining processes. In contrast, Montana has also been a testing site for environmental reclamation efforts like the National Bison Range, the American Prairie Reserve, and undamming rivers, among other projects. Edge of The Abyss: Artists Picturing the Berkeley Pit and Space of Hope: A Collective Response will be on view at MAM from June 8 through September 18. Jerry Rankin: Golden Sunlight and Pennies from Hell: Selections from the MAM Collection are on view now through September 2. Captions for images: Marcy James, Lost Inside: 3 Mounds Later, digital photograph, copyright the artist. Carolyn Lord, Artifacts Along the Lincoln Highway, 2018, oil on canvas, copyright the artist.
About MAM: Founded in 1975 and accredited by the American Association of Museums since 1987, MAM is emerging as the leading contemporary art museum in the Intermountain West. MAM is situated on the traditional, ancestral territories of the Séliš (Salish or “Flathead”) and Qlispé (upper Kalispel or Pend d’Oreille) h peoples. MAM is committed to respecting the indigenous stewards of the land it occupies. Their rich cultures are fundamental to artistic life in Montana and to the work of MAM. MAM is a fully accessible, free public museum boasting eight exhibition spaces, a library, and an education center in the heart of Missoula’s historic downtown.
Billings police said Monday that there is an “open investigation” into a May 16 incident where Northern Cheyenne Tribal Councilwoman Silver Little Eagle suffered non-life-threatening injuries.
On Friday, a GoFundMe for Little Eagle was started asking for donations for medical and legal costs stemming from the incident: “On Sunday, May 16, 2021, Northern Cheyenne Tribal Councilwoman Silver Little Eagle was brutally attacked in Billings, Montana, and left for dead. She suffered severe physical injuries, as well as the theft of her vehicle and personal belongings.”
Little Eagle’s condition was unknown Monday. Monday, she was not listed as a current patient at St. Vincent Hospital or the Billings Clinic.
This weekend, the officer handling the case would not comment on whether law enforcement had any suspects. Monday, the Billings Police Department confirmed there is an “open investigation” and the councilwoman suffered non-life-threatening injuries and was taken to a local hospital for treatment. However, the police department declined to provide additional details. The intensity of Little Eagle’s injuries was first reported by KTVQ.
The GoFundMe post said “had Councilwoman Little Eagle not been found by a family member, it is very likely she would have died from this violent attack. That speaks to the severity of her injuries.” The GoFundMe, which has gained traction on social media, has raised more than $23,000 since Friday, surpassing its original goal of $8,000.
Little Eagle, 23, is the youngest member of the Tribal Council and was part of a historic 2020 election when five open seats, as well as the Tribal presidency and vice presidency, were filled by women, according to Native Business.
President Joe Biden intends to nominate National Wildlife Federation senior adviser and veteran Montana Democrat Tracy Stone-Manning to direct the Bureau of Land Management, an individual familiar with the process confirmed to States Newsroom Wednesday.
Stone-Manning joined the NWF as associate vice president for public lands in 2017 and was promoted to senior adviser for conservation policy in January. She had worked as chief of staff to former Montana Gov. Steve Bullock, a Democrat, after a stint leading the state’s Department of Environmental Quality during Bullock’s administration. She also was an aide to Sen. Jon Tester from 2006 to 2012.
Politico Pro first reported the nomination, spurring reaction from conservation groups and Democrats who praised the move.
“This would be a big deal for Montana and for all Americans who value our public lands and the thousands of good-paying jobs that depend on their responsible stewardship,” Tester said in a statement.
Stone-Manning “understands the complex issues facing the Department, and I know if nominated she’d bring Montana commonsense to land management decisions that will keep our economy thriving.”
“Having Tracy Stone Manning lead the BLM will be an incredible boon for Montana and our nation,” Ben Gabriel, the executive director for the Montana Wilderness Association, said in a statement. “She’s a straight shooter, with an impressive history of working on both sides of the aisle for the good of public lands, wildlife, water quality, and Montana’s rural communities.”
Gabriel also called on Montana’s other U.S. senator, Republican Steve Daines, to support the confirmation. BLM is part of the Department of the Interior.
“As with all nominees, the Senator will carefully review the record of whoever is chosen for this role, including Ms. Stone-Manning if she is nominated, and listen to feedback from all Montanans,” said a spokesperson for Daines, who sits on the Senate Energy and Natural Resources Committee that would consider Stone-Manning’s confirmation.
Representatives for the NWF declined to comment Wednesday.
250 million acres of public lands
The BLM could be a key venue to advance conservation and climate policy, a priority Biden has said for years would be a central part of his presidency.
The bureau manages nearly 250 million acres of public lands, almost all of in the West.
It is also responsible for approving oil and gas leases on federal lands. Biden paused new leases shortly after taking office, while ordering a review of federal leasing policy. Emissions from oil and gas development on federal lands accounts for nearly one-quarter of greenhouse gas emissions in the country, according to the U.S. Geological Survey.
If confirmed, Stone-Manning would face unusual challenges for a new BLM leader.
The BLM did not have a confirmed director during former President Donald Trump’s time in office. William Perry Pendley, a deputy director who previously worked as an anti-government legal activist, was the de facto leader but lacked the support in the Senate even from some Republicans to win confirmation for the fulltime post.
A Montana federal judge invalidated some decisions the BLM made during Pendley’s time in office because he was serving illegitimately.
The Trump administration also oversaw the move of BLM headquarters from Washington to Grand Junction, Colo. The move was criticized by many Democrats and conservationists who viewed it as weakening the bureau’s influence in Washington and expected it to drive out many of the agency’s career experts.
In her position with the NWF, Stone-Manning criticized Pendley’s record and said the BLM should have a director who believed in the bureau’s multiple-use mission. Stone-Manning’s backers said she was well-suited to help the bureau reverse the direction Pendley had set it on.
Jennifer Rokala, the executive director for the liberal conservation group Center for Western Priorities, said in a statement Pendley was a “rubber stamp” for the oil and gas industry and said she expected Stone-Manning to consider a broader range of interests.
“The damage wrought by the Trump administration on an agency which manages one-tenth of the land area in the United States is almost incalculable,” said Rokala. “Stone-Manning’s depth of expertise and breadth of knowledge will be critical assets in reforming the Bureau of Land Management and restoring trust in our public land managers.”
More Interior nominees
The White House and Interior also officially announced four other nominees Wednesday. They are:
Energy and environment attorney Tommy Beaudreau to be deputy Interior secretary. Beaudreau was chief of staff to Interior Secretary Sally Jewell and led the Bureau of Ocean Energy Management, which oversees federal offshore wind policy, during former President Barack Obama’s administration. He is a partner in the Washington office of the international law firm Latham & Watkins.
Environmental activist and executive Shannon Estenoz to be assistant secretary for fish and wildlife and parks. Estenoz, a fifth-generation Floridian, was most recently the chief operating officer of the Everglades Foundation. She previously oversaw the Obama administration’s Everglades restoration work.
Think tank executive Winnie Stachelberg to be assistant secretary for policy, management and budget. Stachelberg is the executive vice president for external affairs at the liberal Center for American Progress.
Water lawyer Tanya Trujillo to be assistant secretary for water and science. Trujillo most recently worked as a project director with the Colorado River Sustainability Campaign.
“Our nominees each have deep experience leading on energy and environmental issues, working across federal, state, local and Tribal governments, and coordinating engagement with a variety of stakeholders,” Interior Secretary Deb Haaland said in a statement.
“I look forward to working with them to advance Interior’s mission to steward America’s natural, cultural and historic resources and honor our nation-to-nation relationship with Tribes.”
The Montana State Supreme Court made a series of orders on Friday that temporarily suspended legislative subpoenas and allow the high court to slow the process on two different but related cases, which entangled all three branches of state government and stretch the limits of their respective constitutional power.
In its order on Friday afternoon, the court gave Montana Court Administrator Beth McLaughlin 14 days until April 30, to respond to questions about the release of her email and why the case shouldn’t be dismissed. Meanwhile, the court said it was enjoining — or suspending — a legislative subpoena that allowed the state’s Department of Administration to take more than 2,400 emails.
It is unclear if the Department of Administration has the bulk of email it had originally wanted, and if the search process would even be stopped, as required by the courts.
The high court also enjoined legislative subpoenas issued to McLaughlin and all seven justices of the Supreme Court, which would have required them to appear on Monday before a special select committee of lawmakers, which met for the first time on Friday afternoon.
In their order, the full Supreme Court said that the matters raised were unique in the state’s 132-year legal history, and in order to ensure privacy rights and due process, the matter would be put on an ordered schedule that will take it beyond the end of the month.
In its order, the court said, “It is clear the Legislature, to exercise its separate and distinct powers of governance effectively, must have the power to acquire information regarding the subject matter of its legislation. However, neither the subpoena power of the Legislature, nor that of the judiciary, is subject to unquestioned enforcement.
“This court has not previously considered the extent of any limitations on the Legislature’s subpoena power. The scope of the Legislature’s inherent legal authority to compel information, and how it applies under particular circumstances, are quintessentially functions for this court to determine within our exclusive constitutional duty and authority under Article III, Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution. We have not heretofore considered whether that authority is limited when competing rights or privileges exist and are expressed.”
The court also pushed back against lawmakers who asserted that their inquiry into the judiciary was meddling unconstitutionally where the courts have no power.
“The Legislature seeks to obtain a broad swath of internal judicial branch documents and communications, some of which appear to be confidential and privileged as a matter of law from compelled disclosure to the Legislature, but some of which may very well be reachable by legislative subpoena. All those requests, moreover, are directly or indirectly related, and certainly have directly arisen from, the matters now squarely at issue before this court in the above-captioned Brown and McLaughlin proceedings, in both of which the Legislature is now a party under the personal jurisdiction of this Court,” the court wrote in its seven-page order.
“As a result, the legality of the previously issued legislative subpoenas, and any similar subpoenas regarding the same subject matter, is currently at issue before this court … for adjudication, upon participation of the parties thereto under due process of law, under the exclusive constitutional power and authority of this Court under Article III, Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution. Within that legal framework, it is the exclusive constitutional duty of this Court to consider the competing constitutional and other legal interests at issue and adjudicate them accordingly to resolve the dispute matters at issue as a matter of law.”
The court gave McLaughlin, the Legislature and the Montana Department of Administration until April 30 to file motions with court so that the issues can be “presented and adjudicated in the course of due process.”
While it dismissed McLaughlin’s original complaint, it allowed her second motion, concerning emails and the release of private information to proceed.
Also, Justice Jim Rice requested — and the court granted — the subpoena issued to him by the Legislature not be stayed because he wants to seek a review in a district court.
Chief Justice Mike McGrath also issued a three-page letter that he presented to the lawmakers, and Senate Republicans also issued a statement, in a flurry of competing back-and-forth public messages.
The Senate Republicans said, “Today the Supreme Court rejected the court filings in the SB140 case by its court administrator related to the investigative subpoenas, effectively acknowledging that its weekend order was improper,” the statement by the Senate GOP said. “It’s disappointing but not surprising that the remaining justices ruled on their own subpoenas, a clear and inappropriate conflict of interest.”
It said that it would continue to assert its investigative authority “to obtain public records from public officials.”
But McGrath’s letter to the lawmakers rebuts much of what the lawmakers had to say, and also gave a list of what legislation the Montana Judges Association supports or opposes. McGrath said that all Supreme Court Judges recuse themselves from those infrequent polls because the issues may wind up for decision at the state’s highest — and only — court of appeal.
“Although not the way I would have preferred to open a dialogue between our coordinate branches of government, I welcome the opportunity to provide you with information about how and under what circumstances the judicial branch engages with the legislative process on matters involving court operations,” McGrath wrote to Senate President Mark Blasdel and Speaker of the House Wylie Galt.
McGrath defended polling of judges on the legislation, and said the practice is long-standing.
“It is appropriate for judicial officers — those who sit on cases every day and manage the courts’ ever-growing caseloads — to apprise the Legislature of how its decisions may affect the functionality of the judicial system and impact Montanans. For many years the elected members of the judicial branch have worked through the Montana Judges Association to give the legislative body information important to the Legislature’s consideration,” McGrath wrote.
He also pointed out that the association was funded by dues from the judges themselves, not state funds, and its primary purpose is to hold mandatory educational conferences twice a year.
“On the rare occasion when I have, in my role as chief, needed to advocate on behalf of a policy matter directly impacting the judicial branch, I have recused myself from any case involving the bill as I did with SB140,” McGrath said.
He also said that, despite reports to the contrary, he never consulted with any other attorney on the case besides the lieutenant attorney general.
McGrath’s letter also said it’s important for lawmakers to hear from the judiciary about proposed legislation, and there are numerous cases where that input has been beneficial.
“As (an) example, input was sought from the legislative committee regarding HB90 from Justice Gustafson and others because of her expertise in child dependency,” he wrote. “The MJA has created a legislative committee that has authority to determine if a proposed bill should be given judicial input. Most sessions, the judiciary takes positions on a very limited number of bills outside of the budget process.”
McGrath described how the polling process — which has become such a focal point of the GOP-led Senate concern — is conducted.
Here are the bills that the Montana Judges Association has taken a poll on:
SB 175 (Removing principal from the judges retirement system): SUPPORTED HB 342 and HB 355 (Partisan election of judges): OPPOSED HB 325 (The election of Supreme Court Judges by district): OPPOSED HB 685 (Replacing Judicial Standards Commission): OPPOSED SB 140 (Replacing the Judicial Nominating Commission): OPPOSED * The MJA is SUPPORTING HJ 40 proposal to study the Judicial Standards Commission
“If a proposed bill has major impact on the judiciary, the association, through its president, may conduct a poll of the members,” McGrath wrote. “MJA’s position is not a secret. Indeed, the very purpose of the poll is to inform the Legislature of the judiciary’s policy position on how the bill impacts the branch.
“…It would be irresponsible for the judicial branch not to inform the Legislature on proposals that directly affect the court system and how it functions. Judges come before you as witnesses, precisely because they know you are the policymakers; it has been our experience that the Legislature appreciates having information from those involved in a subject.”
Finally, the chief justice lamented how the controversy that has ensnared all three branches has played out.
“It is unfortunate that we have not had the opportunity thus far to discuss our procedures in a more congenial fashion,” McGrath wrote. “In other years, if the Legislature desired an in-depth investigation, a referral would be made to the Legislative Auditor for a performance audit. The judicial branch would gladly cooperate with the Legislative Auditor process.”
Special Select Committee hearing
The select committee that GOP leadership formed this week to investigate the judiciary had a brief first meeting on Friday, laying out expectations for the committee’s work and responding to orders from the court attempting to enjoin the legislative subpoenas from earlier in the week.
The judges, said, Sen. Greg Hertz, R-Polson, who’s chairing the special committee, “prejudged pending legislation that is likely to be brought before the courts” when they responded to a poll on legislation this session sent out on behalf of the Montana Judges Association.
Hertz in the committee did not say definitively whether the judges that the Legislature subpoenaed this week would appear Monday, but he said the decision by the bulk of the Supreme Court to quash a subpoena order issued to the court itself amounted to a conflict of interest.
“No other citizen would have the audacity to claim that he or she gets to be the judge in their own case,” Hertz said.
The committee’s two Democrats, House Minority Leader Kim Abbott of Helena and Sen. Diane Sands of Missoula, questioned the very precept of the special committee, and said the Legislature’s standoff with the courts amounted to a constitutional crisis.
“This is part of what I view as a session-long attack on a necessarily nonpartisan and independent judiciary,” Abbott said. “It feels like a constitutional crisis point for me…and I feel like it undercuts the checks and balances that Montanans demand, respect and depend-on.”
Sands, who first served in the 1997 legislative session, said she feels it’s disingenuous to assert that the poll conducted by the Judges Association is “outside the realm of the legitimate process of the court.”
“The judges’ association comes in every year on a number of bills,” she said, calling the committee a “witch hunt.”
‘Public records from public officials’
One of the central flashpoints of this controversy centers on whether emails and communications from the judiciary are indeed public record. While case law has continuously ruled that courts are public bodies, and therefore subject to public observation, the emails and communications of the judicial branch have routinely been off limits for several reasons; sensitive information may be in the contents, and there’s an understanding that the judicial branch must be free to deliberate issues without the fear of those deliberations becoming public.
“The Legislature respects the judicial branch and is committed to finding solutions to the numerous concerning issues at hand, including deleting public record emails, pre-judging cases that are likely to come before the court, using state time and resources for a private association, and ruling on matters where judges have conflicts of interest,” the Senate Republicans said.
Also on Friday, the Supreme Court rejected a motion from the Montana Family Foundation that would have allowed an extension to file an amicus curiae or friend of the court brief because the attorney missed the deadline.