HELENA — Republican Gov. Greg Gianforte on Monday joined GOP legislators and Montana’s Republican attorney general, in asking the U.S. Supreme Court to intervene in their dispute with the Montana Supreme Court over whether that court is improperly “prejudging proposed legislation.”
Gianforte, through his chief lawyer, Anita Milanovich, filed a “friend of the court” brief with the U.S. Supreme Court, asking the court to hear an appeal from Attorney General Austin Knudsen and Republican legislators.
Gianforte’s filing said the state Supreme Court and judiciary have failed to maintain their role as an “independent and impartial arbiter” by prejudging proposed bills before the Legislature, in emails and other communications.
“By engaging in discourse about proposed legislation, the Montana judiciary has created an untenable situation: nearly every sitting judge in the state that rules on the lawfulness of legislation can now be viewed with suspicion,” Milanovich wrote. “Any district court decision involving new legislation may cause a litigant to wonder if the outcome was independently arrived at, or if the Supreme Court signaled its position in an email or poll.”
Knudsen and GOP lawmakers are asking the U.S. Supreme Court to rule that the Montana court violated due process of law last year when it denied a request to “recuse” or remove all seven court justices from ruling on the legality of legislative subpoenas seeking internal court emails.
Republican lawmakers said the emails showed, or could show, that judges had expressed their opinion on bills that could become law and later come before the court in constitutional challenges.
Last August, in a unanimous decision, the Montana court quashed those subpoenas, saying the Legislature had exceeded its legal authority.
Knudsen said the court should not have ruled on a case involving its own emails and employees – and has asked the U.S. Supreme Court to take the case and order the justices to recuse themselves from the case.
Montana Supreme Court Administrator Beth McLaughlin, the other party in the case, has not yet filed her argument opposing the U.S. Supreme Court taking the case. The nation’s high court accepts less than 3 percent of those requests for a “writ of certiorari.”
The case stems from a lengthy political battle waged by leading Republican officeholders against the state Supreme Court and judiciary, starting last year.
Beginning in early April, GOP lawmakers, with the help of Knudsen and Gianforte’s administration, sought to obtain emails and documents from the high court, alleging the documents may reveal the judiciary is biased against GOP-passed laws that may come before the courts.
McLaughlin filed a petition to block those subpoenas, and the full court ruled in August that the requests exceeded legislative authority.
One of the justices, Dirk Sandefur, said in his concurring opinion that Republican lawmakers had “recklessly ginned up a `crisis’” that he called a “calculated and coordinated partisan campaign” to undermine the nonpartisan judiciary’s role in reviewing the constitutionality of enacted laws.
The Montana court also rejected a request from Knudsen that the entire court recuse itself from deciding the case.
Gianforte said the U.S. Supreme Court needs to clarify whether the Montana court’s actions are proper.