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
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.
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
Canons of Code of Judicial Conduct violated: See attached
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.
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.
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.
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
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
Specifically, in his July 16th Order Denying Intervention Motions
and Briefing Schedule, Judge McMahon said, on Page 14, numbered item
“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.
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
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
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
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
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
Gary Marbut, president
Montana Shooting Sports Association
(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.)
Violation of Oath of Office as
Violation of Code of Judicial Conduct
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
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