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Supreme Court administrator asks again to block GOP subpoena on emails

More emails released in dispute over new law
MT Supreme Court.jpg
Posted at 11:51 AM, Apr 13, 2021

HELENA — The administrator of the Montana Supreme Court, at the center of a battle with Republican legislators over the release of internal emails from the state judiciary, has filed a new request asking the high court to block GOP efforts to obtain and disseminate those emails.

The filing from Beth McLaughlin Monday evening came the same day the Republican state attorney general’s office – representing legislative Republicans – said they would not comply with a Sunday Supreme Court order to halt the email acquisition.

Meanwhile, Republican leadership released additional emails Tuesday – including one showing that two attorneys in the case that started the controversy apparently called the high court two weeks ago asking to talk to Chief Justice Mike McGrath.

Court rules generally prohibit attorneys on a case from talking directly to judges overseeing the case – although McGrath had recused himself from the case at the time.

The email did not indicate whether McGrath agreed to talk to the two lawyers from Billings and Bozeman.

The case is the legal challenge to a new law giving Republican Gov. Greg Gianforte broader power to appoint state judges, to fill vacancies on the Supreme Court and district courts.

In the past two weeks, Republican leadership at the Legislature has been seeking internal emails from the Supreme Court, to determine whether judges or justices have discussed the law or displayed any bias.

Working through the Gianforte administration, which runs the state computer system, they’ve acquired at least 2,400 of McLaughlin’s emails from the previous three months and are releasing selected emails to the media.

Most of the emails show 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’s new request filed Monday night asks the Supreme Court to quash a legislative subpoena seeking the documents, declare it illegal, and block any efforts to acquire or publicize her emails.

“The statewide importance of the legal and constitutional issues raised in this case could not be clearer,” her request said. “This case involves nothing less than the constitutional order of our system of government and an attack on separation of power. …”

Lieutenant Attorney General Kris Hansen, who is representing the Legislature in the legal fight, said Tuesday that McLaughlin’s second filing is “an overt acknowledgment” that Sunday’s order was improper.

McLaughlin’s petition names as defendants both the Legislature and the state Department of Administration.

Her latest filing is another turn in an escalating political battle between GOP leadership at the Legislature and the state’s judiciary, prompted primarily by judges’ opposition to the bill that gave Gianforte broader power to appoint state judges.

Under the new law, Gianforte can appoint any qualified person he chooses to fill judicial vacancies. Under the old law, governors had to choose from a list of finalists vetted by a judicial nomination commission.

The new law has been challenged as unconstitutional by two former state officials, a Montana tribal official, a former delegate to the 1972 state Constitutional Convention and the League of Women Voters.

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Attorney General Austin Knudsen.

The Supreme Court is hearing the case, and McGrath recused himself because he had met earlier with Gianforte to try to dissuade him from proposing the change in the law. McGrath chose state District Judge Kurt Krueger of Butte to replace him on the case.

But two weeks ago, Attorney General Austin Knudsen, a Republican, obtained an email showing that state judges had been polled on the bill, by McLaughlin’s office, and that Krueger had stated his “adamant” opposition to it.

Krueger then recused himself from the case and the Supreme Court decided to continue on the matter with only six justices.

Knudsen then asked to delay the case until it could be determined what judges had said about the new law, during the statewide email and telephone poll of judges.

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

Republican legislative leaders upped the ante in the dispute last Thursday, issuing a legislative subpoena requesting all of McLaughlin’s emails from Jan. 4 to April 8. They sent the request to the Department of Administration, which is led by Gianforte appointee Misty Ann Giles.

Giles responded by giving lawmakers more than 2,400 of McLaughlin’s emails last Friday – without coordinating with McLaughlin or anyone at the judicial branch, or any review of the emails for privacy concerns, McLaughlin said.

McLaughlin’s filing Monday said the subpoena is improper on several grounds, including that it serves no legislative purpose and is far too broad.

She also said the judiciary is not a “public body” whose records and deliberations are entirely open to the public, and that retrieving its emails and disseminating them to the public sends a message to judges and their staff that “their communications are not protected.”