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Republicans escalate battle with Supreme Court, subpoenaing all justices

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Posted at 12:53 PM, Apr 15, 2021

HELENA — Republican leadership at the Montana Legislature Thursday ratcheted up their inquiry into alleged bias by the Montana Supreme Court, ordering its justices to produce, by Monday, any internal communications about bills before the Legislature.

GOP leaders issued legislative subpoenas to the seven justices and Court Administrator Beth McLaughlin, telling the seven justices to produce the documents at the Capitol by Monday afternoon.

The subpoena for McLaughlin ordered her to appear Monday morning before a special legislative committee that Republicans formed this week, to investigate the judiciary.

“Recent revelations have raised serious concerns about the procedures and conduct of Montana’s judicial branch of government,” House Speaker Wylie Galt and Senate President Mark Blasdel said in a statement. “We must maintain the integrity of the judicial branch so it can perform its critical functions vested by the Montana state constitution.”

Senate President Mark Blasdel, R-Kalispell.

McLaughlin declined to comment Thursday and Supreme Court Chief Justice Mike McGrath could not immediately be reached.

Legislative Democrats, however, denounced the GOP actions as an attempt to smear and control the state’s judiciary, for political purposes.

“Yesterday, Republicans advanced their attack on a co-equal, independent branch of government,” said House Minority Leader Kim Abbott and Senate Minority Leader Jill Cohenour. “Today, they have escalated that attack.”

Abbott and Cohenour said Republicans have “manufactured … a constitutional crisis, in their effort to destroy the last remaining checks and balances on their power.”

Senate Minority Leader Jill Cohenour, D-East Helena.

Democrats said the Republican majority is not only passing numerous unconstitutional laws this session, but also trying to undermine the judiciary that will rule on laws that are challenge in court.

Republicans replied that their actions Thursday are merely an attempt to get “public records from public officials.”

Thursday’s subpoenas mark the latest development in an escalating political battle between legislative Republicans and the judiciary, sparked by the passage of Senate Bill 140, which gives Republican Gov. Greg Gianforte more direct power to choose who he appoints to fill vacancies at the Supreme Court and state district courts.

Under the old system, in place since 1973, the Judicial Nomination Commission accepted applications for judicial vacancies and forwarded three to five finalists to the governor, who had to choose from that group of finalists.

Under SB140, Gianforte essentially can appoint anyone he chooses, as long as they meet certain legal qualifications.

Republican leaders have said the new law is meant to give the governor more control over appointing judges in Montana.

The day after Gianforte signed SB140 into law on March 16, several former state officials, a tribal official and the League of Women Voters filed suit, asking the Supreme Court to strike down the law as unconstitutional.

Yet within the next two weeks, Republicans somehow obtained internal emails from the judiciary showing that judges had been polled on the bill in January, by the McLaughlin, for the Montana Judges Association. The association ended up opposing the bill, based on the poll.

GOP leaders then started questioning whether the Supreme Court had prejudged the law and whether it would be impartial judging its constitutionality.

Last week, GOP leaders at the Legislature issued a separate subpoena to the state Department of Administration and obtained more than 2,400 of McLaughlin’s emails, and began releasing some to the media.

Most of the emails showed Supreme Court justices, judges and judicial branch staff and lobbyists commenting on various bills before the Legislature that would affect the judiciary, including strategies to oppose and defeat some of the bills.

McLaughlin has filed two requests with the Supreme Court to quash that subpoena and stop the release of her emails. The court ruled in her favor on the first one, but Republicans said they would not comply with the ruling.

However, the state Department of Administration – which is part of the Gianforte administration – said this week it would comply and release no further emails from the judiciary.

Meanwhile, on Wednesday, Republicans announced they are forming the Special Select Committee on Judicial Transparency and Accountability to investigate the matter further.

Attorney General Austin Knudsen, whose office is representing the Legislature, asked the Supreme Court on April 7 to delay the case deciding SB140’s constitutionality until it could be determined which judges had said anything about the bill, during the January poll.

The Supreme Court rejected that request last week, saying that the six justices now deciding the case had not been polled.

The case also already has attracted several outside parties, filing “friend of the court” briefs for one side or the other.

The conservative Mountain States Legal Foundation filed a brief supporting Gianforte and the Montana Family Foundation plans to file one as well.

The Montana Trial Lawyers Association and the Montana Defense Trial Lawyers Association plan to file briefs arguing the new law is unconstitutional.

Gianforte has already filed his initial argument with the court, arguing that the plaintiffs lack “standing” to sue and that the Supreme Court doesn’t have jurisdiction.

And, the governor also has said the law is constitutional, because the constitution leaves it up to the Legislature to design how judges are appointed.

The legislative subpoenas to the seven justices are all structured the same way. The subpoena directed at McLaughlin's also calls for her to turn over any state-owned computers, hard drives or telephones in her possession.

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