After the 2025 Legislature, Republicans who were in the majority in both chambers lamented that they didn’t get more done to refashion the state’s judiciary, vowing to take up the effort in 2027.

While lawmakers have already begun the bill drafting process for 2027, other state legislators are pushing to bring the state court system to heel. Chairman of the Senate Judiciary Committee Barry Usher, R-Billings, filed a trio of complaints  against one of the state’s seven Supreme Court justices, Laurie McKinnon, late this summer.

The three complaints that Usher brought to the Montana Judicial Standards Commission, the body that oversees judicial discipline, have already been decided, two of them years ago by the previous commission. One of the issues — whether the Montana Supreme Court justices could hear matters pertaining to state’s court system — was rejected by the United States Supreme Court.

Broadly speaking, the charges involve allegations that McKinnon has violated judicial norms by not silencing an attorney at a panel in which she moderated; that she had a conflict of interest in deciding the legality of legislation that would redraw the Supreme Court into districts; and that she failed to recuse herself in a tussle with the Legislature over emails.

Even though the issues and events surrounding the complaints have been litigated and settled, that has not stopped some Republicans from continuing to fight. Now, Usher has targeted McKinnon, who has been a part of rulings on some of the cases which have been decided against the lawmakers, on occasion writing opinions on behalf of the court. While no facts involving Usher’s allegations have changed — in some cases for years — what has changed is the retooling and remaking of the Judicial Standards Commission itself, which could mete out judicial discipline.

In 2023, a Republican supermajority rejiggered how the members of the Judicial Standards Commission are chosen. Democrats and others decried the changes as injecting more politics in the nonpartisan court system, while Republicans argued commission should better reflect the political reality of the Treasure State. 

The complaints

Usher submitted the three complaints on Aug. 17 to the JSC . The Daily Montanan reached out to Usher for comment about them, and he originally replied that the complaints speak for themselves.

Senator Barry Usher, R-Billings, asks a question during a Montana Senate Judiciary Committee hearing on Wednesday, February 12, 2025. (Nathaniel Bailey for the Daily Montanan)

Later, Usher decided to release a comment through a legislative spokesperson:

“I am disappointed to see Justice McKinnon leaking information to the state’s most left-wing media outlet in an attempt to influence public opinion and sway the commission’s important work on judicial standards complaints. This calculated move raises serious concerns over her fitness for judicial office.”

In almost all cases, complaints against judges, submitted to the JSC, are confidential. However, Montana law allows a judge to waive that right and provide public notice of the proceedings. McKinnon has waived her right of privacy in the matter for the Daily Montanan in order to demonstrate how political the fight over the state’s judicial branch has become:

“The citizens of Montana should know the depth of the attacks on the judiciary that are occurring. The allegations lodged by Usher are baseless and calculated to intimidate, harass, threaten, and – more significantly – silence a member of the highest court of this state, particularly where there are a multitude of constitutional challenges before the Court to recently enacted statutes supported by Usher.  I will, as I always have, decide any case before the Court based on our law, our precedent, and Montana’s Constitution – free from partisan influence, and of course Usher’s attempt to influence. As a leader in Montana’s judicial branch, it is my duty to disclose and repudiate these partisan attacks, which weaken, infect, and threaten our democracy. The idea that a Justice would succumb to threats or be silenced by Usher’s allegations, as the obvious intended purpose here, is inconsistent with the principles and health of a democracy.  I will not turn a blind eye to what is occurring, and I have faith that through my responses and disclosure to Montana citizens, these attacks on the judiciary’s independence will not be kept in the dark but, rather, inform and enlighten how our State should govern going forward.”

In letters, the Judicial Standards Commission on Sept. 17 asked McKinnon to respond in writing to the allegations. McKinnon hired an attorney, Patricia Klanke, to respond to the allegations, which appear to still be active with the commission.

The Daily Montanan reached out to members of the commission to discuss the complaints or the process, but none of them responded to requests. By law, members cannot speak about the complaints, but they can acknowledge them or describe or clarify the process.

The first complaint by Usher alleges that McKinnon failed to uphold the Montana Code of Judicial Conduct by not recusing herself from a controversy involving the Legislature, of which he was a member, and its subpoena for thousands of email records from the state’s judicial branch.

In 2021, Republican lawmakers had charged that because a statewide judges association polled members of the judiciary on legislative topics during the session that it indicated political bias. In a hurried subpoena, the Legislature demanded thousands of emails from then Court Administrator Beth McLaughlin, with threats of legal action if she didn’t comply with the subpoenas during a weekend.

Meanwhile McLaughlin and her attorney filed emergency petitions with the Montana Supreme Court asking to halt or slow the process because of sensitive, private and confidential information that would likely be in many of those emails, including communication about court cases, juveniles and medical records. 

That escalated in a stand-off that entangled all three branches of state government, culminating in orders to return the emails, some of which had already been distributed to the public, and the state’s highest court stopping the subpoena for emails issued by lawmakers.

The controversy didn’t end with the decision, though. Montana Attorney General Austin Knudsen, a Republican, threatened not to obey the high court, which became the basis of currently pending disciplinary action against him still before the Montana Supreme Court. McKinnon has recused herself from that disciplinary case.

But during the tussle over whether to release the judicial branch’s emails, Republican lawmakers claimed the Supreme Court justices, including McKinnon, had a conflict of interest and must recuse themselves. The Supreme Court denied the conflict and said even if one existed, that every qualified judge in the state would have the same conflict and cited a principle called the“rule of judicial necessity,” which says if every judge has the same perceived conflict then the sitting justices must do their best to adjudicate matter.

After years of fighting and a mountain of legal briefing, the case was appealed by Knudsen all the way to the U.S. Supreme Court, which decided the matter when it declined to hear the case, leaving the Montana Supreme Court’s decisions to stand.

One member of the state’s high court, Justice Jim Rice, had recused himself in the case and dissented in a separate opinion, arguing that a different legal route was correct by challenging those lawmaker-issued subpoenas in state district court first.

In the complaint against McKinnon, Usher parlays that into a reason for the commission to “impose the maximum sanction on (her).”

In his complaint, Usher said that the state Supreme Court has ignored the conflict of interest.

“They claim the issue is a matter of law they alone can decide — an absurd argument, as Justice Rice’s recusal demonstrates,” the complaint said.

The second complaint against McKinnon focuses on a 2021 debate and effort to change the state’s constitution, which elects nonpartisan Supreme Court Justices at large. A proposal, House Bill 325, would have altered that by districting the state into seven different geographic regions and having electors in those regions elect a single justice from there.

Residents challenged the measure’s constitutionality, and the Second District Court in Butte found in favor of the residents. The state appealed the decision, and the Montana Supreme Court, the state’s only appellate court, was called upon to decide the matter.

Again, Republicans from both the legislative and executive branches charged that the entire state Supreme Court should be disqualified because of a conflict of interest. However, using law that paralleled its ruling in the McLaughlin case, the court said that conflicts were speculative and that voters had the final say on the election of judges.

In his complaint, Usher said that McKinnon should have disqualified herself, arguing that “given the nature of this case dealing with how Supreme Court Justices are elected, thereby increasing or decreasing the chances of any particular justice being re-elected, the (sic) Justice McKinnon had a clear economic interest in the outcome of this case.”

However, in their ruling on the case, the Supreme Court determined those interests were conjecture or theoretical, because the complaints assume so many things, for example, that the constitutional ballot measure would pass, the districts would not favor the current justices, and that justices would want to run for office again.

The third complaint against McKinnon alleges that she failed to follow the Montana Code of Judicial conduct when she was moderating a panel discussion at a continuing education course sponsored by the Montana State Bar Association.

The complaint accuses her of showing bias and violating the code when a longtime attorney, who had been asked to participate at the last minute, made comments that offended some conservative lawmakers and were harshly critical of Gov. Greg Gianforte, a Republican, and the court itself.

That conference and particular session became a flashpoint for Republican legislation during the 2025 Legislature to reform not only the state’s judicial branch, but overhaul the state’s legal community altogether by not requiring attorneys to join the bar, as well as calling for a full financial audit by state auditors of the bar, which is a private organization.

Usher charges that “Justice McKinnon did not attempt to restrain (Jim) Goetz’s comments,” and says that she “giggled” at his remarks.

Klanke of the Drake Law Firm in Helena has responded to the allegations on behalf of McKinnon, her client.

In separate responses for each allegation, Klanke points out that many of the same issues have been litigated before the Judicial Standards Commission and even the Supreme Court previously. Klanke’s responses to the allegations total 22 pages, and include exhibits, swelling the total to around 100 pages in total.

Klanke said the Supreme Court addressed the disqualifying of Supreme Court justices in its 2022 findings.

“Usher’s grievance reflects his dissatisfaction with this ruling…This is not the first time Sen. Usher has filed this complaint,” she stated.

Indeed, Usher filed a similar complaint against McKinnon in 2022, along with accusing Supreme Court Justices Beth Baker, Ingrid Gustafson, Jim Rice, Dirk Sandefur, James Shea, and Chief Justice Mike McGrath, with similar allegations. Baker, Gustafson, Rice, and Shea are still on the court.

“The grievance now filed against Justice McKinnon is identical, down to the formatting, even using plural references to ‘themselves’ and ‘the Justices’ and containing the same typo ‘rescues’ in place of ‘recuse,’” Klanke said.

In 2022, Usher was not the only lawmaker to file the same complaint — on the same day. Reps. John Fuller and Matt Regier filed as well as Sen. Cary Smith and the late-Sen. Gordon Vance. 

All five complaints were dismissed by the Judicial Standards Commission in 2022.

“If the decision of the commission, or indeed any judicial principles, are to mean anything, a grievance that has been rejected five times should also be rejected the sixth time,” Klanke wrote.

Klanke points to a 2012 decision that has been used many times during these conflicts, which analyzed the role of Supreme Court justices and when they should recuse themselves. The case centered on whether four sitting Supreme Court justices should recuse themselves because they had the potential to run for re-election.

That case established the precedent that “potential” conflict did not constitute “a direct, personal, substantial, and pecuniary interest sufficient to trigger due process concerns.”

Moreover, the Montana Supreme Court ruled in the McLaughlin case previously that since every judge in the state likely had interacted with McLaughlin, the courts, or could run again, that none were more able to rule on the case than the justices on the Supreme Court.

“There was no member of the of judiciary who was without at least a conjectural interest,” Klanke’s response stated, arguing that if taken to its logical conclusion, no judge in the state would have been able to decide the complaints raised by the McLaughlin case or the matter or districting the Supreme Court seats.

In the McLaughlin case, the high court reasoned that if it disqualified “every member of Montana’s highest court … the court’s ability to fulfill its constitutional duties to adjudicate difficult and controversial matters would be compromised.”

“Montana citizens elected Justice McKinnon to the Supreme Court, and the matter should be decided by the duly elected and constituted Justice of the court,” Klanke responded to Usher’s allegations.

Klanke’s response also notes the different cases that the Montana Supreme Court has decided that involved making decisions on the judiciary or the court administrator, stretching back several decades.

The high court, as it decided in McLaughlin, said that the Legislature had purposefully subpoenaed every member of the court, creating both a crisis and a scenario meant to discredit every justice. 

“The Legislature’s unilateral act of issuing subpoenas to the justices during the pendency of this case is not grounds for recusal of every member of this court,” the Supreme Court wrote in its opinion. “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.”

In his complaint against her, Usher repeated the claim that the justices, McKinnon included, used their positions to hide emails that were unflattering, another point the Supreme Court addressed in its original ruling in the McLaughlin case.

“The Legislature has failed to provide a single legitimate legislative purpose tied to matters ‘concerning a subject on which “legislation could be had.”’ The asserted legislative purpose —both expressed in the subpoena and in the Legislature’s findings with the court — is to determine whether individuals violated the law. Enforcement of the law is not a ‘legitimate task’ of the legislative function,” the court ruling said.

“The allegations made by Usher are extremely disturbing, as they are the same arguments made in Reichert, McLaughlin and McDonald which were rejected by the court,” Klanke wrote. “Based upon this clear existing law, when the exact same complaint was filed before the commission three years ago, it was summarily dismissed.”

It appears that McKinnon, as opposed to other justices, may have been targeted because she was the moderator of a panel, “Profiles in Courage,” which she had participated in, in conjunction with the State Bench Bar Education Committee.

With 15 minutes until the beginning of the panel, one of the panelists had not arrived, and with veteran attorney Jim Goetz in attendance, he was asked to participate because of his involvement in many controversial cases before the state Supreme Court, according to Klanke.

Each of the panelists spoke, and McKinnon moderated. The full presentation and discussion has been made available previously. Usher’s complaint against McKinnon focuses on seven different comments made by Goetz during the panel discussion, none of which are attributed to McKinnon. In his complaint, Usher charges that McKinnon failed to ” restrain the comments of Mr. Goetz.” Usher also accused her of being “willing to allow Mr. Goetz to engage in this inappropriate (sic) constitutes,” while also alleging she failed to report Goetz’s behavior afterward.

Usher’s complaints against Goetz include that during the panel discussion he called one of the rulings on a case he litigated “a piece of shit,” while during the same panel criticizing some of the laws passed by the legislature as “pieces of garbage.” One of Goetz’s criticisms was aimed at district court judge Dan Wilson, who ran unsuccessfully for a Montana Supreme Court seat in 2024, and has announced his intent to run again in 2026.

Since then, Wilson has also become a member of the Judicial Standards Commission.

In her defense of McKinnon, Klanke responded that the justice simply moderated the panel, not offered advice or commentary.

“McKinnon moved the discussion from one panelist to another, being careful not to opine on their positions, particularly those disagreements about matters that had been decided by the court,” Klanke said. “McKinnon neither endorsed the statements of the panelists, nor adopted any of the statements, and did not make them herself.

“This does not mean she should have interjected herself to silence First Amendment speech. The panelists were entitled to voice their opinion about the court’s decision and how the court was functioning. They were entitled to speak of their frustration with litigating against various parties. Had Justice McKinnon interjected herself into the discussion, she would have done exactly what Usher is alleging she did here — showing a bias or partisanship toward a particular position or part.”

Klanke also rejected the idea that she should have stopped Goetz from speaking, noting that judges are often in the same position while on the bench.

“Avoiding impropriety does not mean putting a stop to all speech or conduct that is in bad taste or may cause offense to others,” Klanke wrote. “Indeed, the role of a judge is very often to uphold the rights of others to make offensive speech. It was not illegal for Mr. Goetz to state his opinion, and there is no law or rule that required Justice McKinnon to intervene to prevent him from doing so.”

The response points out that none of the panelists were court staff or “under Justice McKinnon’s control.”

“Mr. Goetz’s statements were not dishonest or untrustworthy, however disagreeable some may have found them, and they reflected his deep displeasure with the administration of justice in this state,” Klanke wrote. “Usher’s allegations are premised upon the mistaken belief that the panelists were under the direction or control of McKinnon.”

Changes to the JSC

While the Judicial Standards Commission has rejected nearly identical complaints at least five times, this sixth time is different because the Legislature retooled the commission itself to allow politicians more control over the make-up of the panel.

In 2023, Rep. Kerri Seekins-Crowe, R-Billings, sponsored and helped pass House Bill 326, which rewrote the rules on how commission members are selected. Raising concerns about “judges judging judges” and likening the situation to the fox guarding the henhouse, the Legislature passed the bill, mostly along political party lines.  The House voted 66-32, with a notable exception of then-Rep. Bill Mercer, who was recently confirmed by the United States Senate to the federal bench in Montana, and took the oath of office in Missoula.

In the Montana Senate, the bill was more controversial, with a number of Republican Senators breaking off from the majority. Still, the measure made it through the chamber 29-21 and was signed into law by Gianforte.

Under the new law, the number of people appointed to the commission remained at five. Instead of two district court judges being elected by the district judges themselves, the judges are appointed by the Montana Speaker of the House and confirmed by the Senate. The Montana Supreme Court under the old system appointed the one practicing attorney, but under the new rules, that attorney is appointed by the Montana Attorney General. The two lay members of the commission are appointed by the governor and confirmed by the Senate, something that remained unchanged by HB 326.

During the debates some lawmakers worried that move would inject more partisan politics into a system designed to eschew political party influence.

The current make-up of the commission includes the chairwoman of the Commission, Yellowstone County District Court Judge Ashley Harada. The other judge on the commission is Wilson.  The attorney appointed by the Attorney General is Emily Jones, who has served as a special assistant to Austin Knudsen, and is often involved in many of the high-profile political cases the office handles. The two members of the public are former legislators Seth Berglee and Roger Webb of Park City. Both were appointed by Gianforte and both are Republican.

Conflicts of interest?

The members of the Judicial Standards Commission have changed since these issues were originally addressed. Unlike the other nearly identical complaints, this trio of complaints appears to be different. The previous complaints were all summarily dismissed, which meant that the commission read and reviewed them, rejecting them without asking the judge accused in the complaint for a response.

In each of these three complaints, the commission asked McKinnon for a response, and did not reject the complaint, meaning the commission’s investigation or deliberation is ongoing. 

But in both the response provided by McKinnon and in the Daily Montanan’s own investigation, it appears that four of the five members of the commission may have their own conflicts of interest in the case.

Harada herself has been the subject of a disciplinary complaint against her that was ultimately upheld by the Montana Supreme Court. As part of that process, McKinnon signed a disciplinary order, along with six other members of the court, suspending Harada for one month without pay and censuring her.

Harada agreed to the punishment and concurred with the commission and court findings, which included a failure to withhold state and federal taxes from a nanny who worked for her; acknowledging she lied under oath about the situation; making misleading statements about her legal experience; making endorsements of candidates; as well as accepting an endorsement from a political party, which was, at the time, illegal, but has since been changed by state law as part of a Republican effort to “reform” the court system of Montana.

Dan Wilson is running for the Montana Supreme Court (Photo courtesy of Dan Wilson).

Wilson ran for a seat on the Montana Supreme Court, being bested by current Justice Katherine Bidegaray. He has announced that he’s an active candidate seeking election to the Supreme Court in the 2026 race. And Wilson was the target of at least one of the comments that Usher claims McKinnon should have stopped at the panel discussion.

That comment from Goetz was:

“And the other thing that got my attention was Judge Wilson complimenting the court on the Judicial Nomination Commission case, which I and Cliff Edwards handled …. And when Judge Wilson said that was an even opinion, it’s a piece of shit.”

Also, according to a Montana Legislature report that examined the role of the judiciary in terms of lobbying or bias, it found that Wilson used his state email account to vote on an informal poll about pending legislation before the lawmakers.

Emily Jones is a well-known attorney, working particularly in Republican circles, and is married to prominent political consultant and campaign director Jake Eaton.

Jones has been part of major pieces of litigation as a special assistant attorney general, and records show that she’s been receiving a $10,000 per month payment from the office, and was first called in to help litigate the McLaughlin case. She was on the losing side of that argument, which McKinnon signed onto.

In addition to that, Jones herself was sanctioned by a state in court in Helena for a 2017 case where Lewis and Clark District Court Judge Kathy Seeley found that her actions in case usurped the court’s inherent ability to “control discovery and trial administration in the interest of fairness and justice.”

She was sanctioned, ordered to pay for the Commissioner of Political Practices attorneys fees, and then a record was sent to the Office of Disciplinary Counsel, which oversees attorney discipline. According to a search of the state’s disciplinary database, that office never took further action against Jones.

However, Jones’ name has been attached to some of the highest profile lawsuits in the Attorney General’s Office, including many that the Montana Supreme Court found against. Those have included cases involving defending legislation ranging from reproductive freedom to the Attorney General finding certain ballot initiatives “insufficient” to defending the state’s position on transgender individuals wanting to select their gender marker on a driver’s license.

But, it’s not even the first time that Jones has, as an attorney for the state, tried to punish McKinnon for not muzzling Goetz. In a 2024 case regarding the driver’s licenses, Jones made a motion to disqualify McKinnon because she “failed to take the measure to cease the offending discussion.” Because that case was dismissed before it was decided by the court, the court did not make a ruling on the motion.

It appears that Usher also waited on Jones’ appointment to the JSC. She was appointed on July 1, and Usher filed the complaints surrounding Goetz’s comments on Aug. 17. Goetz’s comments by then had been made more than a year earlier and already had been dismissed by the former commission.

Jones’ husband, Eaton, filed an identical complaint as the one Usher filed against McKinnon.

“The present complaint by Sen. Usher is almost a word-for-word duplicate of Eaton’s, with even the same line break error on page two of the attached statement,” Klanke noted.

She also pointed out that several verb tenses were changed, for example when referencing McLaughin, the court administrator at the time of case. The complaint now states that she “was” the court administrator. It also appears that Usher may have tried to differentiate the filing slightly, which Klanke noted: “‘This case reveals a clear coverup,’ in place of ‘This case is a coverup, plain and simple.’”

Klanke also noted that Eaton’s original complaint included a demand to force the recusal of Judges Mike Menahan and Randal Spaulding, former members of the JSC, who were replaced by Harada and Wilson. Those sections have now been dropped.

Moreover, Usher has legislative involvement with both Harada and Wilson.

“Usher, the grievant in this case, sponsored bills to confirm both Harada and Wilson to the commission,” Klanke said. 

Meanwhile, former Carbon County lawmaker Seth Berglee, who now lists his address as Whitefish, was a defendant in a case that wound its way to the Supreme Court, which found in his favor, but not without a wrinkle. McKinnon wrote the opinion on behalf of the Supreme Court.

That case, which was decided in June 2025, was a split decision, with Justice Jim Rice dissenting. The case involves a company in which Berglee has an ownership interest and a dispute involving a former partner. McKinnon’s decision, which was written on behalf of the majority, ultimately said that Berglee and several other partners were correct in not associating with a former partner. However, the opinion could wind up costing Berglee more money because the court ordered the district court to redo some of its calculations for paying out the ex-partner.

And back to the Supreme Court

Should the Judicial Standards Commission find merit in the complaints, or even recommend sanctioning or disciplinary action against McKinnon, it will not have the final say on the matter. The JSC makes recommendations to the one group that has power over the courts according to the Montana Constitution, the Montana Supreme Court.

That means that if the JSC recommends disciplinary sanctions, it could set off another series of motions and possible accusations that seem to be at the heart of the original complaint more than four years ago: The justices seated on the Montana Supreme Court will be in charge of determining the fate of McKinnon, one of their colleagues. 

For his part, Usher’s trio of complaints urges the commission to take a hard-line stance against McKinnon.

“This commission has the authority and responsibility to find that Justice McKinnon violated her ethical obligations. Given the severity of these violations, the commission should impose the maximum sanctions on Justice McKinnon,” the complaints urge.

For her part, McKinnon has requested that the complaints be dismissed and the commission award her attorney’s fees for having to defend cases she says have already been litigated, several times.

“It is unclear why the commission determined that an investigation into Usher’s allegations was warranted, given that his complaints clearly involve orders and decision of the Montana Supreme Court, requiring the commission, under its own rules, to dismiss the grievance summarily,” Klanke said in her response on behalf of McKinnon. “It is Justice McKinnon’s sincere hope that the commission applies its own rules correctly and interprets the Montana Code of Judicial Conduct in a fair and nonpartisan matter.”