Complaint
Judicial Standards Commission
March 9, 2022

This Complaint was mailed to the Judicial Standards Commission (JSC) via First Class U.S. Mail on March 9, 2022.  The JSC would like this to remain confidential until they decide to do something with it, or not do anything.  However, that desire is in conflict with the holding of the U.S. Ninth Circuit Federal Court of Appeals in Tschida v. Motl.  In that case, the Ninth Circuit examined a Montana state law with provisions and restrictions the same as those adopted administratively as policy by the unelected JSC.  The Ninth Circuit found the similar state law unconstitutional as an improper restriction on free speech.

It is consistent with the Ninth Circuit's holding in Tschida v. Motl for the Montana Shooting Sports Association to publish its Complaint here and in its newsletter communication with its members and others.  It remains to be seen if the JSC will act on this Complaint and what the result may be.

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Complaint


Printed on MSSA letterhead




March 9, 2022

Judicial Standards Commission
301 S. Park, Suite 328
P.O. Box 203005
Helena, Montana 59620-3005

Subject:  Complaint in re Judge Michael McMahon, First Judicial District

Canons of Code of Judicial Conduct violated:  See attached

Dear Sirs,

Regents v. State is a case filed by the Montana Board of Regents seeking to block features of House Bill 102 from the 2021 legislative session.  That (now) law would prevent the BoR from negating Article II, Section 12 of the Montana Constitution by banning possession of firearms on the campuses of the Montana University System.  This is a case squarely about firearms and civil authority to regulate firearms.  This case has been before Judge Michael McMahon of the First Judicial District.

Judge McMahon is required by the Montana Constitution and by statutes to swear, execute, and file an oath of office as a condition of and prior to assuming office.

Article III, Section 3, M.C. reads:

Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)." No other oath, declaration, or test shall be required as a qualification for any office or public trust.

2-16-211. Oaths -- form -- before whom -- when. (1) Members of the legislature and all officers, executive, ministerial, or judicial, must, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support, protect, and defend the constitution of the United States and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."

(2) No other oath, declaration, or test must be required as a qualification for any office or public trust.

(3) Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths.

3-5-201. Election and oath of office. (1) The judges of the district court, except judges pro tempore, must be elected by the qualified voters of the district.

(2) Except as provided in subsection (1), each judge of a district court shall, as soon as the judge has taken and subscribed the official oath, file the official oath in the office of the secretary of state.

Count 1

In an Order dated July 16, 2021, at Page 14, item 6, Judge McMahon ordered that amici in this case about campus firearms could not discuss or argue about the right to keep or bear arms, a fundamental right that the people have reserved to themselves in both the U.S. and Montana constitutions from government interference, including from judicial interference.

In issuing this official prohibition, we believe that Judge McMahon violated the oath of office that is required of him as described above.  We believe Judge McMahon also violated several of the canons in the Code of Judicial Conduct (see description in attached Exhibit A).

Specifically, in his July 16th Order Denying Intervention Motions and Briefing Schedule, Judge McMahon said, on Page 14, numbered item 6:

“In this regard, however, any amicus brief shall be strictly limited to the scope of Article X, Section 9 as it relates to HB 102.  Argument seeking to redefine or enlarge the issues of this declaratory relief proceeding, arguing the breadth of federal or state firearm rights, or arguing the validity of Regents Policy 1006 will not be considered or tolerated by this Court;”

The Montana Shooting Sports Association, Inc. (MSSA) had sought to intervene as a defendant in this case, a motion which Judge McMahon denied.  Having been denied intervention, MSSA then intended to submit an amicus curiae brief in support of HB 102.  However, our interest is specifically the right to keep or bear arms.  The declaration of Judge McMahon that he would allow no discussion concerning our chief interest made it useless to submit our intended amicus curiae brief.  Therefore, our access to justice was effectively denied.

This thwarting of MSSA's participation has implications for our freedom of speech in the Montana Constitution under Article II, Section 7, for our right to petition for redress under Article II, Section 6, for our right of participation under Article II, Section 8, for our access to justice under Article II, Section 16, and for due process under Article II, Section 17.

Count 2

In his Temporaty Restraining Order, his Preliminary Injunction, and his Permanent Injunction in this case, Judge McMahon found unconstitutional and thereby prohibited the effect of Section 5 of HB 102.  Section 5 states:

"Section 5. Prohibition on infringement of constitutional rights. The board of regents and all university system employees subject to the authority of the board of regents are prohibited from enforcing or coercing compliance with any rule or regulation that diminishes or restricts the rights of the people to keep or bear arms as reserved to them in Article II of the Montana constitution, especially those rights reserved in Article II, sections 4 through 12, notwithstanding any authority of the board of regents under Article X, section 9(2)(a), of the Montana constitution."

By restraining and enjoining the effect of Section 5 of HB 102, Judge McMahon overtly empowered the Board of Regents and the Montana University System to ignore and abridge not only the right to keep or bear arms, but also the rights of individual dignity, freedom of religion, freedom of assembly, freedom of speech, expression, and press, the right of participation in government, the right to know, the right of privacy, and the right against unreasonable searches and seizures.  All of these cherished rights are among those the people have reserved to themselves specifically from government interference, including from judges.

Having sworn this oath to "support, protect and defend the constitution ... of the state of Montana", it is egregious and a violation of that oath for a judge to then prohibit parties from discussing the very constitutions the judge has sworn to "support, protect and defend."  It is antithetical to justice and to the concept of ordered liberty.  Finally, such conduct clearly damages faith and trust in the Montana judiciary.  Who can seek enforcement from the judiciary of any constitutionally-reserved right if judges are able to prohibit discussion of the very rights petitioners seek to enforce?

If there is any convincing example of clearly crossing the admittedly fuzzy double-yellow line of violation of oath of office, this is that example.  These acts by Judge McMahon not only fail to "support, protect, and defend" the Constitution, they overtly trash the very Constitution this Judge promised to respect.

Lest there be any misunderstanding, it is not asserted here that the oath of office prevents a judge from hearing about or considering tension between or among various provisions of the Constitution, or between the Constitution and statutes or other laws.  However, a sworn oath to "support, protect and defend" the Constitution does not permit a judge to prohibit discussion of a part of the Constitution so clearly relevant to the issue at hand as was done in this case.

Further, there is a good reason why the Constitution requires, not suggests, that all public officials must swear an oath to "support, protect, and defend" the Constitution as a condition of and prior to assuming public office.  The oath of office is not a theater ticket stub to be immediately trashed once entrance to the theater or office is obtained.  The people have required that oath so public officials will voluntarily comply with, or in the alternative may be forcefully held accountable to, that oath.  Otherwise would be anarchy or tyranny, but not rule of law.  That is not acceptable or tolerable under the consent of the governed memorialized and secured at Article II, Section 1 of the Montana Constitution.

Even admitting that it might be somewhat subjective to ascertain just what conduct qualifies for violation of oath of office, it is difficult to imagine examples more egregious and pristine than those described here.  It is also difficult to comprehend what limits there might be to misconduct by a public official who is unrestrained by his sworn oath of office.  Said differently, a public official who would so overtly violate his oath of office must be presumed capable of any amount of misconduct.  Such a public official is dangerous to the public and to the very concept of ordered liberty.

In Montana we say that a man's word is his bond.  There is no place in Montana, at least no place of honor and respect and power, for a public official who would give his word by oath and then so flagrantly breach his promise.

We ask that you exercise all disciplinary measures at your disposal to redress this egregious error and to prevent any reoccurrence of such outrageous judicial conduct that so violates the Montana Constitution and the concept of justice.  We ask that you determine that Judge McMahon be deemed eligible for recall for violation of oath of office under 2-16-603(3), M.C.A.  We ask that you declare Judge McMahon be susceptible for prosecution for Official Misconduct for violation of oath of office pursuant to 45-7-401(1)(b) and (c).  We ask that you affirm that Judge McMahon is eligible for prosecution for false swearing pursuant to 45-7-202, M.C.A.

While I may be informed about civics, I am not an attorney and do not pretend to be expert in the laws, rules, and canons that apply to judicial conduct.  Staff and members of the Commission are presumed to have that expertise.  Therefore, we request that you consider this alleged violation of oath of office to have also violated any and all other laws, rules, or canons which may apply and with which I may not be familiar.

All of this suggests reiterating the ancient question, "Quis custodiet ipsos custodes?"  Who will guard the guardians of our liberties?  This situation will test whether or not Montana has an effective system to guard the guardians of the people's liberties.

Sincerely,


Gary Marbut, president
Montana Shooting Sports Association

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(Explanatory note:  The JSC requires a complainant to identify just which of the established Rules of the Code of Judicial Conduct an accused judge has violated.)


Exhibit A

Violation of Oath of Office as
Violation of Code of Judicial Conduct

https://courts.mt.gov/external/supreme/boards/jud_standards/Montana%20Code%20of%20Judicial%20Conduct%20Effective%202009.pdf

and

https://courts.mt.gov/external/supreme/new_rules/rules/jud-canons.pdf

Introduction

It seems odd that violation of oath of office is not specifically identified as a breach of duty for a judicial officer.  However, it does make some sense that the Code of Judicial Conduct cannot list, individually, every crime that violates the Code.  All such laws seem to be included generically by Canon 1, Rule 1.1 which requires that "A judge shall comply with the law ..."

Specific Canons and Rules

Quite a number of Rules in the Code of Judicial Conduct would seem to be implicated by violation of oath of office.  Those which appear to apply in this instance include:

Rule 1.1.  A judge shall comply with the law.  The law requires an oath of office for judicial officers.  Taking that oath incorporates a promise of fidelity to that oath.  The requirement that judicial officers take an oath of office cannot be a nullity and cannot be without import.  "The law neither does nor requires idle acts."  (1-3-223, M.C.A.)

Rule 1.2.  Promoting confidence in the Judiciary.  Violation of oath of office clearly brings disrespect onto the judiciary.

Rule 1.3.  Avoiding Abuse of Prestige of Judicial Office.  It is difficult to imagine any other reason for this specific violation than to advance the Judge's personal interest or the interests of others.

Rule 2.2.  Impartiality and Fairness.  It is hardly fair and impartial to proclaim that in a case about firearms interested parties may not discuss parts of the Constitution in which the people have reserved to themselves the right to keep or bear arms.

Rule 2.3(A).  Bias, Prejudice, and Harassment.  It confirms bias and prejudice for a judge to proclaim in a case about firearms that interested parties may not discuss parts of the Constitution in which the people have reserved to themselves the right to keep or bear arms.

Rule 2.4(C).  External Influence on Judicial Conduct.   In this case, the Judge clearly conveyed the impression, whether or not true, that others were in position to influence this Judge.

Rule 2.6(A).  Ensuring the Right to Be Heard.  Interested parties were clearly and effectively denied the right to be heard.

Rule 2.10.  Ex Parte Communications.  The Judge's writings in this case create the impression that there were ex parte communications with Plaintiffs.

Rule 2.11(B).  Judicial Statements on Pending and Impending Cases.  The preliminary ruling by the Judge cited here clearly telegraphed and demonstrated what the outcome of the case would be, and well before final briefs were submitted and arguments were made.  Anyone who did not understand the Judge's bias for Plaintiffs' argument as demonstrated by this preliminary ruling was simply not paying attention.

Rule 2.12(A).  Disqualification.  In the preliminary ruling referenced here, the Judge removes all doubt that his impartiality "might reasonably be questioned."  Yet, he did not disqualify himself.

End