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February 17, 2023

Public Confidence and the Courts: Pillars of the Rule of Law

By: Carol Funk

There is no playbook for how to navigate challenges to the legitimacy of a court on which a judge serves. But two state supreme court justices, recently at the center of such challenges, shared their counsel and experiences, providing attendees of the AJEI conference with a solemn reminder: the balance of power on which our system of democracy rests is a delicate one. And both judges and members of the bar have important roles to play in ensuring the judiciary maintains its place as a coequal branch of government and in preserving public confidence in the judiciary as a fair and impartial institution. 

The session was moderated by the Honorable Scott Bales, who previously served on the Arizona Supreme Court for fourteen years. He was joined by the Honorable Benes Z. Aldana, President of the National Judicial College; the Honorable Elizabeth D. Walker, Justice of the Supreme Court of West Virginia; and the Honorable Laurie McKinnon, Associate Justice of the Montana Supreme Court.

Falling Confidence in Federal and State Courts

President Aldana opened the session with statistics indicating public confidence in state and federal courts has fallen significantly. Recent polling indicates staggering declines in public confidence in federal courts. Public confidence in state courts likewise appears to be dropping to new lows, with substantially more individuals now viewing those courts unfavorably as providers of equal justice to all. A National Judicial College survey of alumni confirmed that judges likewise perceive a decrease in public confidence, with 63 percent of respondents indicating that public esteem of judges is on the decline.

Against this backdrop, the focus of the session turned to Justices Walker and McKinnon. Each described recent challenges experienced by the state supreme courts on which they serve. Those challenges threatened the legitimacy of the state courts as coequal branches of government. And as issues involving those courts became prominent points of coverage among their respective state’s media, the question of confidence in the judicial branch charged to the forefront as a matter of public concern.  

Excess, Impeachment, and Change in West Virginia

Justice Walker spoke first, observing that she began her service on the Supreme Court of Appeals of West Virginia in 2017. Upon arrival, she discovered a court mired in poor governance, bad leadership, animosity, and disfunction. And she recounted how that mix of deficiencies and poor relations gave rise to a crisis of confidence in the Court, which was followed by significant changes and widespread efforts to establish transparency with respect to the Court’s duties and practices.

In November 2017, a news story broke detailing spending at the Court in recent years. The headline quickly became a $32,000 sofa and $1,700 throw pillows in then-Chief Justice Allen Loughry’s chambers. Stories continued to emerge detailing spending at the Court, and a legislative investigation began. At the time, the West Virginia Constitution precluded the legislative branch from overseeing the state judicial budget—there were no checks and balances on the high Court’s spending.

In February of the following year, the Court voted then-Chief Justice Loughry out of his position of leadership, effective immediately, and elected Justice Margaret Workman as the new chief justice. In June, the West Virginia Judicial Investigation Commission issued a 32-count statement of charges against Justice Loughry, and a grand jury indicted him on 22 charges alleging violations of federal law. Justice Loughry was ultimately convicted on 11 of the 22 federal charges.

In July, another member of the Court, Justice Menis Ketchum, retired from the bench. He subsequently pleaded guilty to federal wire fraud for personal use of a state vehicle and fuel card.

In August, the West Virginia House of Delegates impeached the four remaining members of the Court: Chief Justice Workman, Justice Loughry, Justice Robin Davis, and Justice Walker. The numerous articles of impeachment alleged the justices had failed to carry out the Court’s administrative duties and had engaged in wasteful spending during renovations.

Justice Davis immediately resigned. But Chief Justice Workman and Justice Walker stayed on, working through the intensely difficult situation. Both agreed to an involuntary censure in lieu of trial, but the senate rejected that agreement.

Chief Justice Workman and Justice Walker, faced with how to handle the impeachment proceedings, opted for different approaches. Chief Justice Workman took the fight to the courts. She filed a petition seeking a writ of mandamus that would halt the impeachment proceedings against her, asserting the articles of impeachment violated the West Virginia Constitution.

Justice Walker did not join in the petition. Recounting her reasoning, Justice Walker spoke of the duty to stand up for the independence of the judiciary at all times. But she questioned when, and under what circumstances, that duty must yield. Justice Walker chose to engage with the process rather than attempt to prohibit it.

In early October, after a two-day impeachment trial, Justice Walker was acquitted by a vote of 32 to 1. She nevertheless promised to bring change to practices at the Court.

A short time later, on October 11, the acting justices of the Court (as Justice Loughry was suspended, and Chief Justice Workman and Justice Walker had recused), ruled the impeachment proceedings unconstitutional. The Court concluded, first, that it had jurisdiction to consider Chief Justice Workman’s challenges. The Court then ruled that “prosecution … for the allegations set out in … the Articles of Impeachment violate[d] the separation of powers doctrine.” Additionally, “[t]he Respondents [did] not have jurisdiction over the alleged violations.” Finally, “the failure to set out findings of fact, and to pass a resolution adopting the Articles of Impeachment, violated due process principles.”

In its ruling the Court observed that “no one branch may usurp the power of any other coequal branch of government.” “The greatest fear we should have in this country today is ourselves. If we do not stop the infighting, work together, and follow the rules; … then in the process, we will destroy ourselves.”

Following the Court’s ruling, on January 1, 2019, in her third year on the Court, Justice Walker became the Chief Justice. She took on the role with a singular goal: restoring public confidence in the state’s courts. Transparency and accountability were her top priorities. New policies were developed and a public campaign followed. The Court immersed itself in the work of repairing the damage done to its reputation as an institution worthy of the public’s trust. For Justice Walker, the impeachment process—as difficult as it was—forged her purpose in public service.

In late 2018, the people of West Virginia adopted a constitutional amendment that allows the legislature a measure of oversight over the judicial branch’s budget. Justice Walker supported the amendment, observing that it would provide appropriate accountability and transparency.

Justice Walker concluded her remarks by stating that, in her view, the system of checks and balances worked as it was designed.

Legislative Investigations, Subpoenas, and Disregard of Judicial Orders in Montana

Following Justice Walker’s remarks, Justice McKinnon shared her recent experience on the Montana Supreme Court, where she has served as a justice since 2012.

Justice McKinnon opened with relevant background, explaining that in Montana, state judges are elected. Any vacancies that arise between elections are filled by appointment. But prior to 2021, the governor’s selection of an appointee was not without constraint. As in many other states, applicants for judicial office were first vetted by a state Judicial Nomination Commission. And the governor was required to select his or her appointee from the list of applicants the Commission put forward.

In early 2021, Senate Bill 140 began moving through the Montana Legislature. The bill’s purpose was to eliminate the Judicial Nomination Commission and give the governor power to fill state court vacancies by direct appointment. The Legislature passed SB 140 and it was enacted into law. An original proceeding was filed in the Montana Supreme Court challenging the constitutionality of SB 140.

Justice McKinnon described what followed as Montana’s Marbury v. Madison moment.

Earlier that year, Beth McLaughlin, Court Administrator for the Montana Judicial Branch, had facilitated a survey of members of the Montana Judges Association (“MJA”) regarding SB 140. The survey sought feedback regarding the proposed legislation. As Justice McKinnon explained, the survey was conducted as part of a regular practice of surveying MJA members as to all pending legislation that would affect the judicial branch.

The Montana Legislature learned of the poll and requested information regarding it. McLaughlin provided the final tally but indicated some emails from judges responding to the poll had been deleted pursuant to routine policies. The Montana Legislature seized on the deleted emails and initiated what Justice McKinnon described as a legislative assault on the state judiciary.

In Montana, the Department of Administration (the “DOA”), an executive agency, administers the judicial branch’s computer system. The Legislature issued an investigative subpoena to the DOA, seeking the production of all emails sent or received by McLaughlin over a three-month period. The subpoena required production of the documents by the next day. The DOA began producing the documents immediately, without notice to McLaughlin or to the judicial branch.

By the time McLaughlin learned of the subpoena, several thousand emails involving her communications with members of Montana’s judiciary had already been released. The Legislature made its own determinations that many of the emails were not privileged and released the communications to the press.

McLaughlin filed an emergency motion, and the Montana Supreme Court entered an order—three days after the subpoena was issued—temporarily stopping further production of communications until the Court could address the question of the Legislature’s subpoena power when privileges are asserted.

McLaughlin immediately initiated a separate action to quash the subpoena. The Legislature then subpoenaed McLaughlin directly, along with every member of the Montana Supreme Court, instructing each justice to appear before the Legislature and to produce the sought-after emails as well as personal text and phone messages pertaining to pending legislation. The Legislature also issued a preservation request to all state district courts, stating it was overriding judicial administrative policies. 

The Montana Department of Justice also sent a letter to the Montana Supreme Court, stating that the Legislature did not recognize the Court’s order as binding, the Legislature would not entertain the Court’s interference, and the subpoena was valid and would be enforced. Moreover, the Legislature formed a committee to investigate alleged misconduct by the judicial branch. And every justice on the Montana Supreme Court answered, subject to the Code of Judicial Conduct, questions submitted by the committee.

In addition, with respect to the proceeding McLaughlin initiated, the Legislature moved to disqualify the entire Montana Supreme Court, all of whom were now subject to subpoenas requesting the emails at issue. The DOA, meanwhile, retained separate counsel—and that counsel assured the Court that the DOA would not release additional communications unless directed to do so by the Court.

The Montana Supreme Court subsequently issued two opinions. The first, authored by Justice McKinnon, unanimously denied the Legislature’s motion to disqualify, citing the rule of necessity. In so ruling, the Court noted the context: “Here, the Legislature itself has created the conflict by issuing a subpoena to each justice during a pending proceeding involving the same issues raised in a legislative subpoena.” “The Legislature’s unilateral act of issuing subpoenas to the justices during the pendency of this case is not ground for recusal of every member of this Court.” “Were the Court to succumb to the Legislature’s request and evade our responsibilities and obligations as a Court, we are convinced that public confidence in our integrity, honesty, leadership, and ability to function as the highest court of this State would be compromised.”

A few months later, the Court ruled on McLaughlin’s petition to quash the original subpoena and the subsequent subpoena to McLaughlin. The Court held that the controversy was justiciable and that the subpoenas did “not serve a valid legislative purpose, [were] impermissibly overbroad, and therefore [were] invalid.” Justice McKinnon authored a concurring opinion, writing that “[t]he constitutional doctrine of separation of powers does not tolerate the control, interference, or intimidation of one branch of government by another.”

In another ruling that summer, the Montana Supreme Court ultimately upheld SB 140 as constitutionalJustice McKinnon dissented.

Commenting on these proceedings, Justice McKinnon noted the risks to our system of government when members of any branch prioritize agenda over commitment to democratic principles.

Insight and Counsel for Judges and Lawyers

The experiences shared by Justices Walker and McKinnon raise substantial questions, including the nature and scope of limits on legislative power to investigate other branches of government and what steps may be taken to rehabilitate public confidence in the judiciary if that confidence is lessened or lost.

Questions from the audience centered on these themes, and the panelists’ answers provided critical counsel for lawyers and judges. President Aldana highlighted the importance of explaining how courts work and what they do. Justice Walker emphasized the importance of developing policies that provide transparency and accountability and the need to widely communicate those policies to the public. And Justice McKinnon underscored the importance of writing clear opinions that demonstrate reliance on legal principles. The discussion also involved considerations of how judges may develop appropriate relationships with members of other branches of government, which relationships may be critical in maintaining understanding of and respect for the judiciary’s role.

Justices Walker and McKinnon also impressed on attendees the important role lawyers play in maintaining confidence in the judicial branch. Justice McKinnon described lawyers as “the mouthpiece of the courts,” observing that lawyers have the opportunity to explain judicial opinions in a manner that enables the parties to feel heard and the public to understand that the issues were fairly decided. Justice Walker echoed those sentiments, emphasizing the need for members of the bar to defend the integrity and impartiality of the judicial branch.

A justice in the audience expressed appreciation for the presentation as well as her hope not to land on a similar panel in the future. Those were, very likely, the most widely shared sentiments in the room.

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    Carol Funk

    Ray Quinney & Nebeker

    Carol Funk is an experienced appellate attorney practicing in Utah, where she is chair of Ray Quinney & Nebeker’s appellate section and serves on the Utah Supreme Court’s Advisory Committee on the Rules of Appellate Procedure. She has completed numerous appellate clerkships, including in the United States Court of Appeals for the Fifth Circuit, and previously worked as an associate in the Appeals and Strategic Counsel practice at Weil, Gotshal & Manges.