Secretive judicial conduct panel’s ‘perverse’ rulings raise questions about transparency
TOPEKA — Former Montgomery County prosecutor Lisa Montgomery appeared before a judicial ethics panel in May to face retribution for breaking a cardinal rule.
She had complained publicly about a sitting judge.
A Kansas Commission on Judicial Conduct panel appeared to be unconcerned with the stress District Judge Jeffrey Gettler inflicted on Montgomery, by her assessment, or the other hardships she recalled while under oath. The panel focused instead on how Montgomery had told county commissioners that Gettler created a hostile work environment.
Kansas Reflector obtained documents from Montgomery’s disciplinary case, including a transcript of her testimony before the judicial conduct panel, in which she appeared defeated.
“I’ve done a lot of soul searching and I’ve come to the conclusion I don’t even want to be an attorney anymore,” Montgomery told the panel. “I don’t want anything to do with the legal system. I think it’s broken, and I have no faith in it anymore.”
The panel publicly reprimanded Montgomery in June. Five months later, the same panel cleared Marion County Magistrate Laura Viar of alleged misconduct after she authorized an apparently illegal raid of a newspaper office.
Civil rights attorneys said the two cases undermine confidence in the secretive panel and highlight the need for more transparency.
“This story shows how the system we depend on to protect the public from judicial misconduct really just protects judges,” said Jared McClain, an attorney with the Virginia-based Institute for Justice. “It’s incredibly rare that ethics commissions ever find that a judge violated the rules, so it’s perverse that (the judicial conduct panel admonished) a county attorney who questioned the conduct of a sitting judge.”
Montgomery declined to comment or answer questions for this story. Gettler provided written answers to questions for this story and denied allegations of wrongdoing.
“My relationship with Ms. Montgomery, like any attorney who appears before the court, is professional and cordial,” he said. “I interact with the county attorney in the same manner as I do with all members of the legal community, with respect and in accordance with the Kansas Code of Judicial Conduct.”
‘No fixing this’
Montgomery County, with a population of about 31,000, has been the subject of legal controversies in recent years.
Former Sheriff Bobby Dierks was removed from office in 2020 over his attempt to interfere with the drunk driving arrest and prosecution of his girlfriend.
The American Civil Liberties Union of Kansas filed two lawsuits against prosecutor Larry Markle, who preceded Montgomery in office, and prevailed in both cases. One involved his refusal to use diversion agreements. The other case involved his banishment of a man from the state as part of a plea agreement.
Lauren Bonds, now the executive director of the National Police Accountability Project, was the ACLU of Kansas legal director when those lawsuits were filed. In an interview for this story, she recalled a surprising twist: The defense attorney who had represented the banished man testified in support of the plea deal when the ACLU challenged it.
“There’s a lot of coordination, perhaps, between all the players in the legal system down there,” Bonds said. “That was probably my takeaway from that particular experience.”
Bonds also said Judge Gettler and Montgomery “were probably the least concerning of the bunch.”
In January 2021, Montgomery replaced Markle as county attorney and inherited a short-handed office. The situation was complicated by an assistant who needed to be fired for performance reasons, verbal abuse, endangering police officers and doing private legal work out of the county office, Montgomery told the judicial conduct panel.
Later, Montgomery fired an assistant who was taking photos of arrest warrants with people’s private information and storing them in an online account he shared with his mother. Another assistant retired after she drunkenly wrecked her car and slapped a police officer who responded to the scene.
Montgomery testified against District Judge William Cullins during disciplinary proceedings that resulted in the Kansas Supreme Court suspending him for one year in 2021. The order cited his behavior in court, where he routinely referred to women as “bitch” and “c***” and referred to Black men as “boy.”
The way Montgomery sees it, her testimony placed her in the crosshairs of Judge Gettler, who worked alongside Cullins. Montgomery offered the judicial conduct panel a litany of examples of what she considered problematic behavior by Gettler.
According to the transcript of her disciplinary hearing, Gettler wouldn’t talk to her or return phone calls.
The judge held docket hearings by Zoom, knowing her outdated computer would crash. When it did, he would continue hearings without her.
Gettler once conducted an entire hearing without her present while she was trying to get her computer back up and running. The judge told Montgomery he and the opposing attorney had “handled it.”
He would mute her while she was making arguments.
He would say hello to all of the attorneys present for a hearing except for her.
“I realized that we had reached a point where there was just no fixing this,” Montgomery told the judicial conduct panel.
She said she didn’t want to file a complaint against Gettler because the county already had been “run through the muck.” She turned to the Office of Judicial Administration for guidance.
“Whoever I was talking to kept saying: ‘Oh, you should be a judge. Oh, you need to run. We’re opening up that new position, you should really run.’ And I had a couple of other people who told me that they thought I would be a fantastic judge. They talked me into it. And I will tell you, I regretted immediately,” Montgomery said.
‘Stressed out’
After Montgomery became a candidate for the open judicial seat, Gettler notified her she would need to comply with two court rules that would require extra paperwork for her exhausted staff.
At the time, Montgomery said, her office was working on 14 murder or attempted murder cases, as well as two major sexual assault cases — one involving a 4-month-old baby.
The judge imposed an Aug. 1 deadline, one day before the GOP primary election in 2022. Her opponent was Independence attorney Dan Reynolds, a former law partner of Gettler’s.
Montgomery appeared before county commissioners at a June 27, 2022, public meeting to request approval for unlimited overtime pay. She told them her employees had complained about the judge creating a “hostile work environment.”
“I was just thinking about how on earth my office was going to accomplish everything that we needed to accomplish by that date when I was already working weekends. I was working late. I was working holidays,” Montgomery told the judicial conduct panel. “I didn’t even spend a minute of the Memorial Day weekend that summer with my family. I was in the office doing the work. I was stressed out. We had had a change of staff. We were down staff.”
Gettler read the Montgomery County Chronicle’s coverage of the county commission meeting and filed a complaint with the Kansas Commission on Judicial Conduct. The commission holds the authority to sanction judges and candidates for judicial seats, and Montgomery was a candidate when she complained publicly about Gettler.
Todd Thompson, an investigator for the commission, repeatedly questioned Montgomery about why she didn’t present her grievances to county commissioners behind closed doors.
“Are you familiar with the ability to meet privately with the commission to advise them on legal issues?” Thompson asked.
The question flies in the face of state law governing open meetings.
Max Kautsch, president of the Kansas Coalition for Open Government, said none of the legal justifications for a private meeting, also known as an “executive session,” would apply to the concerns Montgomery voiced. There was no attorney-client relationship between her and the county commission: A prosecutor represents the public.
Montgomery lost the primary race for the judicial seat by a seven-point margin. In October 2022, she resigned as county attorney and left the area.
“One of my last acts as an attorney was to walk a murder scene, and the person that was executed was my brother’s best friend in high school,” Montgomery told the ethics panel. “This kid spent the night at my house. And I had to stand there and look at his body and look at how he was murdered. And I just — I remember thinking, and this is such a horrible thought, but I thought, ‘Oh, God, it’s just one more thing for us to deal with.’ ”
‘Bad publicity’
The judicial conduct panel who heard Montgomery’s testimony showed no concern over Gettler’s alleged harassment.
Instead, the focus was on her decision to talk publicly about a “hostile work environment.”
“Your presentation at the county commission meeting generated bad publicity for the court system, both in the newspaper and on Facebook,” Thompson, the judicial conduct investigator, told Montgomery during her disciplinary hearing.
Gettler was subpoenaed for the disciplinary hearing, but he wasn’t questioned about her allegations.
Montgomery’s case was heard by Wichita attorney Diane Sorensen, Great Bend attorney Allen Glendenning, Sister Rosemary Kolich of the Sisters of Charity of Leavenworth, Kansas Court of Appeals Judge Thomas E. Malone, and Cowley County District Judge Nicholas M. St. Peter.
A majority of the judicial conduct panel agreed Montgomery “made a misleading statement” by using the phrase “hostile work environment” during a county commission meeting, and that she “used the term of art for her own benefit.” An unnamed dissenting panel member argued her statements were “simply an opinion.” The panel ordered her to cease and desist from future violations.
Jared McClain, the attorney for the Institute for Justice, said “the commission’s decision to punish an attorney for raising concerns with a sitting judge sends a strong warning to every attorney in Kansas that the legal industry will enforce its hierarchy over all else.”
A public admonishment from a disciplinary board can be a permanent stain on an attorney’s record — a barrier to running for office or potential employment opportunities.
Bonds, the former ACLU of Kansas legal director, said there is “an underlying tension” in the legal community between “pointing out things that are wrong” and “trying to respect the codes of conduct.”
“It’s concerning that there’s this expectation that public officials aren’t able to raise concerns about other actors within the criminal legal system in a public format anymore,” Bonds said. “I think this could potentially chill and deter people from doing that in the future in a way that I don’t think fits the best interest … of a well-functioning criminal legal system.”
Gettler filed a separate complaint over Montgomery’s public comments with the Kansas Office of the Disciplinary Administrator, which has the authority to sanction attorneys for misconduct. While the judicial conduct panel moved to admonish Montgomery, the Office of the Disciplinary Administrator dismissed the complaint.
‘A typical tension’
Five months after publicly shaming Montgomery, judicial conduct panel members Sorensen, Kolich, Malone, St. Peter, and Grant County District Judge Bradley Ambrosier secretly dismissed a complaint against Marion County Magistrate Laura Viar.
Viar had authorized the raid on a newspaper office and the publisher’s home because police said journalists committed identity theft by looking up a public record. Aside from concerns about the bogus crime, federal law protects journalists from police searches. Viar signed the search warrant anyway.
The Marion County prosecutor subsequently withdrew the warrants for lack of evidence — after the raid contributed to the death of the publisher’s 98-year-old mother.
Kansas Reflector obtained a copy of a letter Ambrosier sent to the Topeka woman who filed the complaint. In the letter, Ambrosier said there wasn’t evidence Viar “crossed the line of incompetence” by authorizing the raid. But the commission “issued informal advice to Judge Viar to take sufficient time to review all documents and research appropriate federal and state laws before issuing a search warrant,” Ambrosier wrote.
In most cases, like the one with Viar, the complaint, investigation, panel discussion and findings are kept secret. If the panel determines there was misconduct, the complaint and disciplinary hearing become public.
Lisa Taylor, spokeswoman for the Office of Judicial Administration, didn’t answer questions about why the Supreme Court requires secrecy in disciplinary cases or whether there was any consideration for making the process more transparent. But she pointed to a fact sheet produced by the National Center for State Courts that shows Kansas’ model aligns with other states.
Kansas Supreme Court Chief Justice Marla Luckert told reporters after her State of the Judiciary speech earlier this month that the judicial branch embraces self-examination and tries to be transparent.
“Do we need to change anything?” Luckert said. “That is an ongoing question.”
David Sachar, director of the National Center for State Courts’ Center for Judicial Ethics, defended the secrecy that surrounds ethics complaints. Sachar compared the process to the use of a grand jury in criminal cases, where evidence is presented in a non-public hearing and deliberations happen behind closed doors. He said it was important to preserve the integrity of an investigation by not disclosing it to the public, and to avoid exposing a disciplinary panel to public pressure.
“The situation that you may be dealing with in your state is a typical tension between trying to do our jobs correctly and also give the public the information that they want,” Sachar said.
He said it was cynical and unfair to think the secrecy is designed to protect judges.
Bonds, the former ACLU attorney, said the people who benefit from secrecy are the ones accused of potential misconduct.
“Judges in particular wield so much power over people in civil and criminal context, and there’s not a lot of accountability for them when they do the wrong thing,” Bonds said. “It does seem like it would be important to ensure that there’s transparency in that one forum where there is the potential for accountability.”
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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