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Judge blocks legislative request of SupCo justice’s documents

GOP leaders seeking judicial emails
Posted at 4:43 PM, May 18, 2021
and last updated 2021-05-18 20:45:23-04

HELENA — A state judge Tuesday blocked legislative Republicans’ request for internal communications of a Supreme Court justice, saying the Legislature lacks legal authority to acquire the documents.

District Judge Mike McMahon said if lawmakers believe the documents could shed light on judicial misconduct, they should file a complaint with the state Judicial Standards Commission, which has constitutional authority to investigate.

The Helena-based judge also noted that while the commission investigates such matters, any pertinent documents remain confidential – unless the panel takes official action.

“The MSJC (Montana Judicial Standards Commission), not the Legislature, investigates alleged judicial misconduct,” McMahon wrote. “The MSJC, not the Legislature, has the constitutional authority to subpoena witnesses and documents in alleged judicial misconduct matters. … Here, the Legislature is not above the law.”

McMahon’s order is the latest development in an on-going political battle being waged by leading Montana Republicans against the state’s judiciary and the Montana Supreme Court.

Legislative Republicans, aided by Republican Attorney General Austin Knudsen, are alleging the high court and other members of the state judiciary have expressed opinions on GOP-passed laws that may come before the courts.

Those opinions, possibly expressed in emails or other communications on state equipment, may show that the courts aren’t impartial in judging the constitutionality of those new laws, Republicans have argued.

MT Rep. Sue Vinton, R-Billings.

House Majority Leader Sue Vinton, R-Billings, said Tuesday that GOP leaders still expect the Supreme Court and its top administrator to produce the requested documents – “through one process or another.”

“The judicial branch does not get to hide public records that every person in the executive or legislative branches would have to produce,” she said in a statement in response to McMahon’s order.

Democrats in the Legislature have said the GOP efforts are nothing more than a pre-emptive strike to smear the state judiciary, which already is being asked to rule on GOP-passed laws this year that Democrats say are clearly unconstitutional.

Lawsuits are challenging laws that restrict voting and give Republican Gov. Greg Gianforte broader power to appoint new judges. Suits also are expected to challenge new restrictions on abortion in Montana.

Montana Supreme Court Justice Jim Rice.

McMahon’s order came on an action filed by Supreme Court Justice Jim Rice, who went to District Court to block a subpoena issued by a GOP-led committee in early April.

The committee issued subpoenas to all seven Supreme Court justices, including Rice, and Supreme Court Administrator Beth McLaughlin, asking for internal emails and other documents.

The high court temporarily blocked the subpoenas – except Rice’s, which was in District Court -- in an April 16 ruling. It said it will rule later on whether the subpoenas are legal, and gave McLaughlin, the Legislature and the Gianforte administration two weeks to file their arguments.

The court has yet to rule on the issue.

McMahon said Tuesday that while the Legislature can issue subpoenas to compel people to appear before it, as part of its investigatory powers, it does not have the power to subpoena documents.

He also said its subpoenas must focus on issues “connected to future legislation,” and that any investigation of judicial misconduct, such as improperly deleting emails, or taking actions that compromise impartiality, is under authority of the Judicial Standards Commission.

Finally, McMahon rejected a suggestion by the Legislature that Rice should be compelled to negotiate with it or the attorney general over what documents Rice should produce.

Statements by the attorney general indicate that his office would not negotiate in good faith with Justice Rice, McMahon said.

“… The Justice Rice subpoena does not represent a run-of-the-mill legislative effort, but rather a clash between separate government branches over records of intense legislative political interest,” he said.