More thoughts on Ex Parte contact.
If we review the Administrative Rules of Montana, we find ARM § 44.10.613, which confirms that the ethics complaint against Gov. Schweitzer that is currently pending before the Montana Commissioner of Political Practices is governed by the Montana Administrative Procedures Act (MAPA), Title 2, Chapter 4, Part 6, Montana Code Annotated.
MCA § 2-4-613 provides:
Unless required for disposition of ex parte matters authorized by law, the person or persons who are charged with the duty of rendering a decision or to make findings of fact and conclusions of law in a contested case, after issuance of notice of hearing, may not communicate with any party or a party’s representative in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate.
[Emphasis Added]
As an attorney, I have access to resources that are not generally available to the public, such as the Compiler’s Comments. These are just what their title implies, comments about the adopted legislation from the compiler, usually the Montana Legislative Council or the Montana Legislative Services Division. With respect to MCA § 2-4-613, the Compiler’s Comments provide:
It has been stated that “it is a fundamental principal of all adjudication, judicial and administrative alike, that the mind of the decider should not be swayed by materials which are not communicated to both parties and which they are not given an opportunity to controvert.” [Section 2-4-613] is patterned after section 13 of the [1961] Revised Model Act. The Commissioners’ comment gives the following explanation:
“This section is intended to preclude litigious facts reaching the deciding minds without getting into the record. Also precluded is ex parte discussion of the law with the party or his representative. No objection is interposed to discussion of the law with other persons, e.g., the attorney general, or an outside expert.”
The words “after issuance of notice of hearing” have been added in [2-4-613] so that it will not be interpreted to apply to preliminary inquiries or investigation made to determine if formal contested case proceedings should be instituted. See the comment following [2-4-102(4)] defining “contested case.”
[Emphasis Added]
Now, when considering the 4 ex parte contacts made by Gov. Schweitzer’s counsel, Eric Stern, there might well be a legitimate question as to whether and when the notice of hearing was issued. Clearly, though, Commissioner of Political Practices Unsworth thought there was something wrong with the contacts, so I think we can assume for now that a notice of hearing had been issued. This reiterates my earlier point that it was wholly improper for Gov. Schweitzer’s attorney, Eric Stern, to contact the “decider” about the case.
I cannot convey to you how basic this proposition is to any attorney. It is drilled into our heads from early on that you simply do not “back door the judge,” and to do so is strictly forbidden except in very specific cases. Stern’s doing so appears to be nothing less than an intentional flaunting of the notions of consitutional due process.
The more I think about this whole thing, though, the more I keep coming back to Commissioner Unsworth. If I tried to overlay this situation onto one of the judges I know, I can’t imagine any of them allowing it to occur once, let alone 4 times. Oh, I suppose a judge with whom I am friendly might politely say, after the first ex parte contact, “Gregg, don’t you think we had better get the other side in on this?” If I continued, though, I would find myself in trouble, I am sure. It’s hard to imagine what might happen, because the even the thought of doing it is so foreign to me. What, back door the judge 4 times in one case?
What I am getting at, though, is why Commissioner Unsworth allowed it. And allowed it. And allowed it. And allowed it. And then went public? We know he was appointed by Governor Schweitzer, but presumably he knows the laws that apply to his position. Why did he not come forward sooner?
Commissioner Unsworth also indicated that Stern “dropped off” an ex parte document. Where is it? It needs to be made public. Immediately.
I’ll end with one obvious question. Where is the press?
Gosh Gregg – you seem to suffer under the delusion that this administration has to play by the rules. Unfortunately this is just one more in a huge long list of abuses of power by the governor and his minions that many of us have been aware of but the press has ignored for the past four years. You ought to start asking questions about Brian’s speech to the Trial Lawyers Association in July…
I still don’t understand how Eric Stern can act as an attorney and bill himself as “senior counsel” without a Montana law license. As far as I know, there is no way around that rule. He needs to take the bar, pay the fees and take the CLEs like the rest of us!
Politics as usual, Tribune reporting as usual, Montana Citizens upset as usual, Nothing will happen as usual. Just another usual day in Montana.
You’re on it, Gregg. However, don’t lose focus and shift it to Unsworth. This is the Governor’s “counsel” who initiated the ex parte communications to influence the Governor’s appointee in making his quasi judicial decision.
Gregg, good job – Since when has B.S. ever followed the law? Just look at how Unsworth got into the job – It was when Gordon Higgins (former Political Practices commissioner) was paid off to go work for another crook John Morrison (State Auditor) – the women that left for Higgins was then given a job at the State Tax Appeal board – Oh and by the way she was paid an addition $7,000 more than law allowed – Why is this – well the governor doesn’t want to be hit as hard as he could be if Unsworth was truly non-partisan. Then Stern – well that doesn’t surprise me – his mother is the head of Earthjustice – remember the organization that sued over the wolf last month!!!!
[...] For more information, Gregg Smith from Electric City Weblog has several in depth reports on the legal implications of senior counsel Eric Stern’s ethics violations. (Here and here) [...]
[...] For more information, Gregg Smith from Electric City Weblog has several in depth reports on the legal implications of senior counsel Eric Stern’s ethics violations. (Here and here) [...]
[...] can’t believe that Governor Schweitzer is getting his advice from Eric Stern. According to some great blogs out there the Governor’s “Senior Counsel” isn’t even licensed in Montana to [...]