Questions remain surrounding outcome of Judge Cebull misconduct investigation

Nearly 17 months after the  Great Falls Tribune first uncovered the racist email “joke” former chief Montana U.S. District Judge Richard Cebull sent from his courthouse chambers, many questions about Cebull’s conduct remain unanswered.

On Sept. 4, 2013 – after previously declaring the findings of the misconduct investigation and final order “moot” because Cebull retired – the Judicial Council of the 9th Circuit is set to release its July 2 final final order in the matter.

Will this final “final order” cover all of the complaints leveled against Judge Cebull? Will the Judicial Council reveal the findings of its nearly yearlong investigation into Cebull’s conduct? Will we ever find out what evidence the special investigative committee uncovered that was so damaging it forced a sitting Article III federal judge off the bench?

The circumstances surrounding the Judicial Council’s handling of this highly visible and controversial case thus far has left the Tribune, and even some legal scholars, scratching our heads. But one thing seems clear: the misconduct investigation must have turned up something more serious than a single offensive email or the 9th Circuit Judicial Council wouldn’t be going to such great lengths to conceal its findings from the public.

That is why the Tribune has continued to push for sunlight on this important matter. In our view, the public’s trust in the federal judiciary is best served by revealing the findings of the investigation.

Recently, at the Tribune’s request, attorneys from the Tribune’s parent corporation, Gannett, sent a letter to 9th Circuit Chief Judge Kozinski requesting that the March 15 order and memorandum be released to the public.

Barbara Wall, Gannett’s vice president and senior associate general counsel, wrote that the circumstances in this case weigh heavily in favor of public disclosure.

“We believe the circumstances in this case weigh heavily in favor of public disclosure. Judge Cebull waived his confidentiality when he publicly requested that the Judicial Council review his conduct, and public interest is certainly high in this controversial case. We therefore believe the public has a right to know the details and outcome of the investigation into Judge Cebull’s conduct, and I hope you will agree.”

This week the court responded, saying that if no petition for review is filed, then the July 2 order will be made public on Sept. 4.

Herein lies the rub: As far as anyone outside the Judicial Council  knows, the July 2 order covers Cebull’s self-filed complaint and one other complaint filed by as-yet-unknown person or persons. We know of at least two other complaints, one filed by the Montana Human Rights Network and one filed by Common Cause. However, we know that neither of those complaints are covered by the July 2 order.

The reason that is significant is because it appears the Judicial Council has segregated Cebull’s self-filed complaint – which we believe was assigned docket no. 12-90026 – and an unidentified complaint, docket no. 12-90032, from the other known complaints.

The Montana Human Rights Network’s complaint, Docket Nos. 12-90031, and Common Cause’s complaint, 12-90029, have not been resolved, and no order has been posted on the 9th Circuit’s website.

How can the other complainants in this matter have an opportunity to meaningfully participate in the resolution of the misconduct complaint if their complaint is segregated from the Judicial Council’s “final order” on the matter?

If only the complainant and the subject of the complaint have an opportunity to appeal the order – and in this case Cebull is both the complainant and the subject – then who has a right to review the order and possibly appeal other than Cebull himself?

Why has the 9th Circuit removed previous press releases and statements regarding the Cebull matter from its website?

Why did the Judicial Council apparently segregate Cebull’s self-filed complaint and another complaint and not address the complaint filed by others regarding the exact same set of facts?

Without answers to these questions, we’re left to speculate. At this point all signs seem to point to an attempt by the 9th Circuit to withhold the results of its investigation, order and memorandum in an effort to protect Cebull from embarrassment – or worse.

Recently the Montana Human Rights Network wrote to Kozinski requesting that Kozinski provide it with a copy of the special committee report and the orders and memoranda issued thus far.

Wrote MHRN co-director Rachel Carroll Rivas:

“If the decision to exclude us from the present adjudication of the matter was deliberate, we request an explanation as to why our complaint was not consolidated with the other two, and how we can achieve meaningful participation in the outcome.”

Rivas then posits five reasonable questions to the chief judge:

• When will our complaint be investigated?
• Why have docket numbers 12-90026 and 12-90032 been given priority over our complaint?
• What purpose is served by allowing these complaints to be resolved before our complaint?
• Will the present adjudication render our complaint moot, because Judge Cebull cannot be disciplined twice for the same conduct?
• If so, how can we achieve any meaningful participation in this process?

We understand that certain special privacy considerations are appropriate when dealing with sensitive misconduct complaints that arise in the federal courts. But we believe this matter supersedes those considerations.

Judge Cebull’s actions and the subsequent fallout were of national interest. Individuals and organizations from across the country called for Cebull’s resignation, and the judge himself sent a personal letter of apology to the President of the United States. Cebull waived his right to privacy when he publicly disclosed his self-filed complaint. It’s time for the 9th Circuit to disclose its findings to the public so the public’s trust in the federal judiciary can be restored.

Below is a timeline of events in the Cebull case up to now:

· Feb. 10, 2012: Judge Richard F. Cebull receives an email titled "A Mom's Memory" on his courthouse email account.

· Feb. 20, 2012: Judge Cebull forwards that email  to six friends and his personal email address.

· Feb. 29, 2012: As a reporter for the Great Falls Tribune, I receive a copy of the email sent from Cebull's email account and call him to ask him about it. He admits to sending the email and says he did so because he does not like President Obama.

· March 1, 2012: Judge Cebull writes an apology to President Barack Obama.

· March 1, 2012: Judge Cebull writes to 9th Circuit Chief Judge Alex Kozinski requesting an inquiry into his actions to determine whether his actions constitute "misconduct." Cebull waives his confidentiality as to making the request and the existence of any proceedings that ensue.

· March 1, 2012: Cathy A. Catterson, executive of the 9th Circuit U.S. Court of Appeals issues a statement in which she proclaims the Judicial Council of the 9th Circuit  "is expected to act expeditiously in investigating and resolving this matter."

· March 1, 2012: Groups begin circulating petitions calling for Cebull's resignation.

· March 5, 2012: The Montana Human Rights Network files an official judicial misconduct complaint with the 9th Circuit Court of Appeals and calls on Cebull to resign.

· March 6, 2012: The ranking Democrat on the House judiciary, Rep. John Conyers, D-Mich. calls for the House Judiciary Committee to hold hearings on Cebull's conduct.

· March 12, 2012: The Montana Human Rights Network sends a letter to Cebull along with a petition signed by more than 2,800 people calling on Cebull to Resign.

· March 23, 2012:  9th Circuit Court of Appeals Chief Judge Alex Kozinski appoints a five-judge judicial committee to investigate Cebull's actions. Judge M. Margaret McKeown assigned to preside over the case.

· October, 2012: Cebull announces he'll take senior status effective March, 15, 2013

· December, 2012: The Special Committee submits its report to the Judicial Council in December 2012.

· March 15, 2013: The Judicial Council issues an order and memorandum. Order not to be released until after the 63-day appeal period

· April 2, 2013: The 9th U.S. Circuit Court of appeals in a statement on its website makes the preceding two facts known to the public and announces Cebull submitted a retirement letter stating his last day would be May 3, 2013. The council states it will have no further comment until the conclusion of the appeal period.

· May 3, 2013: Cebull retires. According to federal law, as an Article III federal district judge he is entitled to continue to collect his $174,000 annual salary until his death.

· May 13, 2013: Four days before the order and memorandum are to become public, Kozinksi issues a statement saying the order stemming from the investigation is "moot" because Cebull retired from active duty. Kozinski says the Judicial Council “now finds it necessary to review the procedural status and will consider the matter” at its June 28 meeting.

· June 28, 2013: The Judicial Council meets to consider the Cebull misconduct complaint.

· July 2, 2013: Kozinski releases another statement indicating that the Judicial Council reviewed misconduct complaints 12-90026 and 12-90032 against Cebull. Judicial Council issues a  “final order,” which is to be made public on Sept. 4 “if no petition for review is filed before that date.” Only Cebull and the complainant associated with docket No. 12-90032 have the right to view the final order and consider it for appeal.

Rep. Knudsen loses his job over bills that irked the oil and gas industry

Culbertson Republican Rep. Austin Knudsen lost his job at the O’Toole Law Firm in Plentywood last session in part because he sponsored two pieces of legislation that were opposed by the oil and gas industry.

Emails between Board of Oil and Gas Conservation administrator Tom Richmond and Dave Galt, executive director of the Montana Petroleum Association, indicate that Larry O’Toole, Knudsen’s boss, planned to fire the junior law partner due to Knudsen’s support of a pair of measures aimed at giving landowners and mineral rights owners greater protections.

The emails, which were obtained by the Montana Environmental Information Center, stated that Larry O’Toole was watching a House committee hearing on House Bill 406 and and House Bill 431 at the Board of Oil and Gas Conservation offices in Billings when he told board geologist Jim Halvorson that Knudsen, an attorney, may be looking for a new job.

In a Feb. 19 email Richmond wrote to Galt:

“Larry O’Toole sat with Jim (Halvorson) Friday and watched the law partner’s (Knudsen) performance during these two hearings on the Internet in Jim’s office….said law partner maybe hanging out his own shingle pretty soon!....Larry said almost all of the people testifying in favor were relatives of the Representative….O’Toole Law Firm not pleased.”

Richmond followed up later saying that Loren O’Toole, Larry’s father, called Larry during the hearing to tell him:

“he needs to fire Austin.”

O’Toole did not return phone calls seeking comment on the email exchange.

The O’Toole Law Firm is one of only a handful of law firms in the state that handles complex oil and gas cases before the Board of Oil and Gas Conservation. Knudsen said Larry O’Toole represents many clients in the oil and gas industry.

Knudsen confirmed that O’Toole asked him for his resignation shortly after the committee hearing on the two bills.

“The fact is I ran a couple of bills that were perceived as anti-oil industry and it upset some people,” Knudsen said.

Knudsen, seen by many political watchers as a rising star in the Republican Party, was elected to the leadership by his caucus and in January GOP leaders tapped him for the high-profile job of responding to Democratic Gov. Steve Bullock’s state of the state speech.

Unconfirmed rumors of Knudsen’s firing reverberated throughout the Capitol during the Legislative session, but the incident never made headlines.

Knudsen said he previously thought O’Toole asked him for his resignation because of the burden his legislative service put on the firm. Knudsen said he heard the rumors, but he said he didn’t know they were true until he learned last week of the email exchange uncovered by MEIC.

“Me serving in the Legislature for two sessions was very tough on the firm,” Knudsen said. “It was just Larry and I and when you’ve got me spending four or five months out of the year in Helena not doing work and doing legislative stuff, it’s tough on business,” Knudsen said. “As far as I knew that was the reason because that was the conversation Larry and I had.”

The two bills Knudsen sponsored had to do with oil and gas development impacts on surface rights owners and “forced pooling” of mineral rights holders.

HB431 would have required any damages from oil and gas development on surface owner’s land be calculated based on the “best reasonably available use” of the land. Previously most damage calculations were primarily based on agricultural uses.

The second bill, HB406, would have reduced the penalties and increased the royalty payments for mineral rights owners who are “force pooled.” Under Montana law mineral rights owners who are unwilling to lease their mineral rights are barred from preventing other mineral rights owners in the same tract from developing their mineral rights. Those who refuse to sign leases are “force pooled” meaning they are given an average mineral lease, and an eighth of the share of the working oil drilling operation’s royalties. They are forced to pay out of those royalties a penalty that helps cover part of the costs of the working interest.

HB406 would have reduced those penalties and increased the royalties for mineral rights owners who were forced into a pool. The measure would have made Montana law similar to current laws in neighboring North Dakota.

“There a lot of oil and gas exploration going on in my district. My family has had to deal with these issues. I’ve got neighbors and constituents who have had to deal with these issues. There gets to be a lot of tension and a lot of landowner problems,” Knudsen said. “Right now we’ve got statutes in place that protect those landowners and requires them to be compensated for damages, but the statute is very week and sometimes they are completely ignored by the companies.”

Both measures were opposed by the Montana Petroleum Association. HB431 was amended and eventually passed both houses and a conference committee before Gov. Steve Bullock signed it into law. HB406, which faced more vehement opposition by the industry, died in committee.

Galt said he worked with Knudsen to amend HB431, but he said the industry feared that HB406 would become an incentive for mineral rights owners to not sign reasonable lease offers from developers.

“It changes the whole economic well,” Galt said. “It was a big deal to us. These bills were huge deals and they were of great concern.”

Galt said he had nothing to do with Knudsen’s firing and he said he didn’t know anything about it until he received that email from Richmond.

“I did not have any conversation with the O’Tooles, Larry or Loren, and I do not know of anybody in the industry who did,” Galt said. “When I heard this happened I went and talked to Austin and I told him that. I thought it was an unfortunate situation. I don’t operate like that and I don’t believe that’s the right way to operate. I told him that.”

For his party Richmond said he regretted passing along the information to Galt via email. Richmond said the board did not take a position on either bill, but rather kept track of where various interests lined up in support or opposition. Richmond said he sent the email to Galt because it illustrated the heated passions on both sides of the issue.

“I think at the time we were just kind of concerned about where the bill was going, and who was supporting it and who was opposing it,” Richmond said. “I think it was a matter of passing the knowledge along so people would know where people stood.”

Richmond said it was “unfortunate” that O’Toole made the comments about firing Knudsen while in the board’s Billings office.

“It’s an unfortunate thing that that happened in our office, and I shouldn’t have spread the rumor any further than that,” Richmond said. “We were just trying to keep track back and forth who had a position and what their position was.”

Derf Johnson, MEIC’s assistant program director and the man who uncovered the emails through a freedom of information request, said he was deeply troubled to learn that a sitting legislator had lost his job because of his position on legislation.

Though MEIC supported HB431 and HB406, Johnson said the environmental group was not happy with Knudsen’s overall record on the environment. However, Johnson said Knudsen got a “raw deal.”

“It was incredibly alarming that the sponsor of a bill that would have impacted the oil and gas industry lost his job. That would be my most immediate concern with the emails,” Johnson said. “To me it suggests that there was some political retribution for stance he took at the Legislature and for supporting bills important to his constituents.”

Johnson said he requested the emails because he wanted to better understand the relationship between the Board of Oil and Gas Conservation and the industry it regulates during the legislative process. He said the 63 pages of emails demonstrates a maybe too-friendly relationship between the industry and its primary regulating entity.

“We certainly don’t have the kind of access to the Board of Oil and Gas that the industry does. I think these emails show that,” Johnson said.

Knudsen, who is working on his own and helping out with his family’s farm, said he is not surprised to learn that his dismissal from the O’Toole Law Firm was related to his support of those two measures.

“I knew there was going to be resistance to these bills, especially from the industry,” Knudsen said. “I’m not out to stick it to the industry, but these are issues I’m passionate about. I dealt with them it personally in my family and I’ve dealt with it with my neighbors and my clients. When you’ve got a section of code that’s meant to protect the surface owners and there’s no teeth tho it, well then I think we’ve got a problem. That’s why I brought the bill.”

Read the full email exchange in DocumentCloud online at www.greatfallstribune.com.

Tester, Baucus dismiss claims they sunk Schweitzer’s Senate bid

U.S. Sens. Jon Tester and Max Baucus denied accusations levied by sources close to former Gov. Brian Schweitzer that Montana’s two Democratic senators were responsible for Schweitzer’s surprise decision to not seek a U.S. Senate seat in 2014.

Speaking to reporters Friday at the state Capitol following the announcement of a $2 million Blackstone LaunchPad grant for the University of Montana and Montana State University, Tester said the anonymous claims he or his political team “stuck knives” in the former governor’s U.S. Senate bid are “baloney.”

“We did nothing to inhibit him from running,” Tester said.

Schweitzer was considered by many political observers to be the Democrats’ best chance of retaining Baucus’ seat in 2014. Democrats have controlled that seat for a century, and polls showed the popular Schweitzer was the most competitive contender in a field that has not yet come into focus. Despite his oft-repeated rhetoric about the ills and aromas emanating from Washington, D.C. and Capitol Hill, most political insiders believed Schweitzer was in fact preparing to run for the Senate.

A recent article in the Australian online publication Business Insider cited several anonymous sources involved with Schweitzer’s supposed planned bid to replace the retiring Baucus. The article made waves on social media Thursday on anonymous claims that Schweitzer was going to announce his campaign on July 15, but that “bad blood” between he and Montana’s two sitting senators led him to bow out of the race.

Tester said he has “no idea” why anonymous sources close to Schweitzer would accuse the junior senator of “torpedoing” his campaign.

“I don’t have time for this stuff, even if I wanted to, which I don’t,” Tester said. “Brian Schweitzer was our best chance of winning this race. He could have probably done everything without me. He didn’t need me. The truth of the matter is that’s a fact. It’s going to be a lot more work for me now.”

Tester may have taken a slight jab at Schweitzer on the podium earlier in the day when he introduced current Gov. Steve Bullock, calling him a “breath of fresh air.” But Tester insisted reports that he had any animosity toward Schweitzer or did anything to upend his possible Senate bid are false.

“You know Brian Schweitzer. You know me. Does that shoe fit?” Tester said. “That I would actually try to go after him just doesn’t fit. I mean it’s not who I am. I’m not that kind of a person.”

Baucus, who was also present for the launch of the Blackstone grant, said he “wasn’t terribly surprised”  Schweitzer chose not to run for the Senate.

“I’ve never met anybody...who wants to decide for himself more than Brian Schweitzer,” Baucus said. “Brian is a very smart guy and a very good governor. I have not talked to Brian since that decision, but he obviously has his own reasons. But it was up to Brian, whatever those reasons are.”

Schweitzer, who recently took over as chairman of Stillwater Mining Co. board of directors, told reporters that he doesn’t want to leave Montana for Washington, D.C. Schweitzer hasn’t personally commented on the rumors that Tester or Baucus had anything to do with his decision to not enter the Senate race, but multiple stories quoting anonymous sources from all three camps have painted a picture of “bad blood” between the former Democratic governor and the state’s two Democratic senators.

Baucus waved off any implication that he or his staff were not supportive of Schweitzer’s bid to replace him.

“I think Brian was kind of conflicted whether he wanted this job in the first place,” Baucus said.

Schweitzer did not answer a call seeking comment.

Schweitzer aide’s PO Box ‘only connection’ to dark money PAC

A former top aide to Brian Schweitzer said his personal post office box is the only connection between the former governor and a pair of dark money political groups in the news this week.

On Monday, FOX Business News reported that Schweitzer, a potential 2014 Democratic front-runner for Montana’s open U.S. Senate seat, in 2009 formed a 527 political action committee that later gave more than $300,000 to a Washington, D.C.-based political nonprofit.

FOX’s David Asman alleged the Helena and Washington-based nonprofit groups appeared to have been formed for the sole purpose of doing political work for Schweitzer, a violation of IRS rules.

Asman connected the Helena-based PAC Council for Sustainable America to Schweitzer because on the group’s 2010 990 report to the IRS it listed the same Helena post office box address as Schweitzer’s 2008 gubernatorial campaign.

Franklin Hall, a former senior adviser to Schweitzer, called FOX News’ charge bogus and said Schweitzer never had any involvement in either group.

“The only connection whatsoever between the governor’s campaign and the entity that was shut down three years ago (Council for Sustainable America) is my personal P.O. Box,” Hall said.

Hall said he has been a political consultant since 2004. Prior to moving to Montana, Hall did consulting work for the Democratic Governor’s Association, which Schweitzer chaired in 2009. Hall later moved to Helena, where he did private consulting work until Schweitzer hired him in November 2010 as senior adviser.

Hall said the Council for Sustainable America was one of his clients from before the time he worked for Schweitzer in the governor’s office. Hall said after Schweitzer won re-election in 2008 the governor shut down his political campaign, but since the campaign still had some money left over it was required by law to file campaign reports.

“The entity still existed because there was leftover money,” Hall explained. “That entity was required to do regular reports with the commissioner of political practices, and when you fill out those forms, you are required to have a mailing address.”

Hall said the campaign did not have any employees or an office, so he volunteered his personal post office box address to be used on the defunct campaign’s filings. Hall said he used that same address on IRS reports filed for the Council for Sustainable America.

Hall said the Council for Sustainable America shut down in the first quarter of 2010.

In March 2009, the Council for Sustainable America received a $335,000 contribution from the Democratic Governor’s Association, three months after Schweitzer was elected chair of that organization.

During the first quarter of 2010, the group liquidated its remaining funds, totaling $306,779, to the American Sustainability Project, a 501(c)(4) political nonprofit with a registered address in Washington, D.C.

The Helena-based group’s 2010 IRS 990 form was prepared by a law firm at the same address the America Sustainability Project lists on its 990: 1666 Connecticut Ave. NW, Suite 500, Washington, D.C.

Former Rep. Dave Gallik, D-Helena, the man Schweitzer appointed in 2011 as Commissioner of Political Practices, was treasurer of the Helena-based group until it dissolved in 2010. Gallik’s signature appeared on the group’s 2010 990 form in August 2011, but Hall said the group had not been active for more than a year at that point and the 990 filing was a required formality.

The Council for Sustainable America lists its “primary exempt purpose” as “educating voters about elected officials and candidates.”

According to its 2010 IRS form 990, the group spent $57,972 conducting opinion polls “to determine voter opinion on sustainable energy, the environment and agriculture policies.”

The group also gave $2,500 to Maryland Democratic Gov. Martin O’Malley’s 2010 re-election campaign.

Hall said the purpose of the organization was to educate voters about sustainability issues.

FOX outlines Brian Schweitzer’s dark money ties

According to FOX Business News former Montana governor and potential U.S. Senate candidate Brian Schweitzer in 2010 (2009?)set up a 501(c)(4) 527 political non-profit that gave $306,799 to a Washington, D.C.-based political non-profit called the American Sustainability Project.

What the money was used for remains a mystery, but FOX argues that these two groups exist for the sole purpose of politicking on behalf of Schweitzer in violation of IRS rules.

According to FOX’s David Asman, Schweitzer in 2010 set up a 501(c)(4) nonprofit called the Council for Sustainable America. Asman says he knows the Council for Sustainable America is tied to Schweitzer because CSA has the same PO Box mailing address as Schweitzer.

So as the political world waits on bated breath to see what Schweitzer’s next move will be, it appears Schweitzer may have been quietly amassing his war chest since as far back as 2010 through these two organizations.

One point FOX didn’t pick up on was the fact that the treasurer of the Council for Sustainable America is, or was, Dave Gallik. Gallik is the man Schweitzer appointed in 2011 to be the commissioner of political practices, Montana’s top political campaign and ethics enforcer.

Gallik resigned from that post in January 2012 amid accusations that he was using his state office to conduct non-state work for his private law firm.

Gallik claimed he did nothing wrong and that he told Schweitzer at the outset that he would not give up his private law practice to serve as commissioner.

Montana Attorney General Tim Fox’s office is in the process of suing Gallik under the state’s False Claims Act, a law Gallik helped create when he was in the Legislature.  The False Claims Act law authorizes a private person to prosecute a recovery and civil sanction action on behalf of the state government against any person who obtains payment from a government entity by means of a knowingly false or fraudulent representation or claim.

Media Trackers Montana in April reported that Gallik was Schweitzer’s former attorney and served as treasurer for Council for Sustainable America, which received a $335,000 contribution from the Democratic Governors Association four months after Schweitzer became chair of the committee.

There are more questions than answers stemming from the FOX News report.  What is Schweitzer’s tie to these political organizations and what is their true purpose? Who’s funding them? Why was Dave Gallik acting as treasurer of a 501(c)(4) political group while at the same serving as commissioner of political practices in apparent violation of state ethics laws? The law says the commissioner of political practices “may not knowingly…participate in any political activity or in a political campaign.” Was Gallik, while acting as the commissioner of political practices, doing campaign work on behalf of Schweitzer?

Schweitzer did not answer calls made to his cell phone, and there was no voicemail service on which to leave a message. A call to Gallik’s law firm had not been returned as of the time of this posting.

In a nutshell, it appears Schweitzer, who purported to be the most transparent governor in Montana history, in 2010 set up a dark money group run by the man he appointed to be the top political campaign watchdog for what appears to be the sole purpose of holding money for a future political campaign.

Here’s a link to the FOX Business News report.

Here’s a link to the Council for Sustainable America’s 2010 IRS form 990.

Here’s a link to the American Sustainability Project’s 2010 IRS form 990.