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GOP-led Legislature withdraws request for MT Supreme Court records

But court administrator will oppose dismissal
MT Supreme Court.jpg
Posted at 5:35 PM, Jun 22, 2021
and last updated 2021-06-23 11:25:44-04

HELENA — Republicans at the Montana Legislature are withdrawing their request for internal communication documents from the state Supreme Court, attempting to end legal action over the issue, state Sen. Greg Hertz of Polson said Tuesday.

In a statement, Hertz said withdrawing subpoenas issued by the Legislature in April is the best way to advance a special committee’s investigation of potential conflicts of interest within the judiciary.

“The Legislature’s position all along has been that litigation in front of judges with inherent conflicts of interest is not the appropriate way to resolve these issues,” said Hertz, a Republican.

But the other party in the case -- Supreme Court Administrator Beth McLaughlin -- may not be willing to let the case end.

Her attorney, Randy Cox of Missoula, told MTN News Wednesday that he likely will object to the dismissal of the case and ask the Supreme Court to rule on the legality of the subpoenas issued by the Legislature.

"The concern is that this kind of situation may recur, and there isn't any real directive in Montana law about the appropriate scope of a legislative subpoena," he said. "It makes sense that the (Supreme) Court could some sideboards on the (subpoenas)."

The Supreme Court had been preparing to rule on whether the Legislature had the power to demand internal emails and other documents from the court.

The subpoenas are part of a running battle waged by the GOP-led Legislature against the Supreme Court and the state’s judiciary, began earlier this year in the wake of a new law giving GOP Gov. Greg Gianforte more power to fill state judicial vacancies.

Republicans alleged the high court, which was considering a constitutional challenge to the law, could be biased against the new law. They used the subpoenas to attempt to acquire the court's emails on the subject.

McLaughlin, the court administrator, filed a lawsuit to block the Legislature's request, arguing that it had given the court no chance to review the emails or other documents for privacy concerns, before they were released. The Supreme Court, in mid-April, then blocked the subpoenas and said it would rule on their legality.

The Gianforte administration, which controls the state email system, had already released several thousand court emails to the Legislature and Justice Department, which was acting as the Legislature's attorneys, but then stopped releasing them. The Legislature also released some of the emails to reporters.

Earlier this month, the Supreme Court upheld the judicial-appointment law that began the controversy. In a special concurring opinion, Justice Jim Rice blasted both the Legislature and Republican Attorney General Austin Knudsen for their actions in the case, saying they had shown contempt for the court and threatened its legitimacy.

Republicans at the Legislature, aided by Knudsen, have steadily escalated their criticism of the Supreme Court and the judiciary.

They created a special committee to continue to investigate the judiciary, funded it with $285,000 and created a “special counsel” with investigatory powers to staff the committee. Hertz chairs the committee.

The Montana Republican Party also financed and sent a mailer attacking the Supreme Court.

Hertz said Tuesday the committee’s work is “far from finished” and that it will continue to seek documents and information that will “inform legislative fixes to problems within our judicial system.”