MT Supreme Court blocks legislative subpoenas seeking its records

Chief Justice McGrath also writes to GOP leaders
MT Supreme Court.jpg
Posted at 2:02 PM, Apr 16, 2021

HELENA — The Montana Supreme Court Friday blocked all subpoenas issued by the state Legislature in the past week, that are seeking internal documents from the court, and said it will rule later on whether the requests are valid.

The unanimous order puts the brakes on an escalating face-off between the high court and Republican leadership at the Legislature, as GOP leaders sought emails and other documents from the court and the judiciary to investigate whether the court has "pre-judged" legislation that may come before it.

Read the full order here.

Republicans on Thursday issued subpoenas to all seven justices on the court and to Court Administrator Beth McLaughlin, ordering them to produce extensive internal documents by Monday.

The court order Friday blocked those subpoenas and an April 8 subpoena that had obtained at least 2,400 emails from McLaughlin last week, through the state Department of the Administration. It also forbade any further release of any documents.

It then gave both the Legislature, the state Department of Administration and McLaughlin, who's been asking to quash the subpoenas, 14 days to file arguments on how any documents should be obtained or released.

"It is the exclusive constitutional duty of this court to consider the competing constitutional and other legal interests at issue, and adjudicate them accordingly to resolve the dispute matters at issue, as a matter of law," the justices wrote.

Chief Justice Mike McGrath also wrote a letter to top Republican leaders Friday, saying individual judges’ positions on bills before the Legislature does not indicate how they might rule on any case related to that bill, should it become law.

He also said that the subpoenas issued by the Legislature on Thursday seek “confidential judicial communications that we cannot divulge.”

Kyle Schmauch, a spokesman for Senate Republicans, said it’s “disappointing but not surprising” that six of the justices ruled Friday on their own subpoenas, “a clear and inappropriate conflict of interest.”

Justice Jim Rice requested that the legality of his subpoena be ruled on by a state District Court.

Schmauch said the Legislature will “continue asserting its investigatory authority as a co-equal branch of government” to obtain public records from the court and the judiciary.

Legislative Democrats, who’ve had nothing to do with the subpoenas or the investigation, say Republicans are trying to trash the reputation of the judiciary, before it rules on a rash of unconstitutional laws being passed by majority Republicans.

The unusual clash between the judiciary and Republicans began with the passage in March 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.

The day after Gianforte signed the bill into law, several former state officials, a tribal official and the League of Women Voters filed suit on March 17, asking the Supreme Court to strike down the law as unconstitutional.

Then, within the next two weeks, Republicans obtained internal emails from the judiciary showing that judges had been polled on SB140 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. The court said none of the justices had participated in the poll.

Still, Republicans sought emails from McLaughlin on the polling results and, when she said some had been deleted, they issued a subpoena April 8 to the state Department of Administration, which runs the state e-mail system.

The agency then supplied at least 2,400 of McLaughlin’s emails to legislative Republicans, who released selected copies 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 then filed an emergency request with the Supreme Court to quash the subpoena – a request the court granted last Sunday.

Yet when Deputy Attorney General Kris Hansen said lawmakers would not follow the order, McLaughlin filed a separate request on Monday, to quash the subpoena.

And, after Republicans issued the additional subpoenas on Thursday, McLaughlin made yet another filing, asking to quash those. The court’s order Friday addressed all three petitions by McLaughlin, and Hansen’s initial response.

The Supreme Court said the Legislature has “inherent legal authority” to compel information, but that the court decides the law and how it applies, including the scope of the Legislature’s subpoena powers.

“We have not heretofore considered whether that authority is limited when competing rights or privileges exist and are expressed,” it said Friday.

In a filing Thursday asking to dismiss McLaughlin’s request to quash the first subpoena, Hansen said the entire court should recuse itself from the case involving its employee.

She also said even if the court ruled in McLaughlin’s favor and quashed the April 8 subpoena that obtained McLaughlin e-mails via the state Department of Administration, the Legislature would not follow it.

“The Legislature will continue its investigation, (Department of Administration Acting Director Misty) Giles will obey the legislative subpoena … and this court lacks jurisdiction to hinder the Legislature’s power to investigate these matters of statewide importance,” she wrote.

McLaughlin’s lawyer, Randy Cox of Missoula, indirectly referenced these statements in his filing Thursday asking to quash the second round of subpoenas, saying it’s even more important to block actions by a Legislature that says “it won’t abide by court decisions it disagrees with.”

“McLaughlin is entitled to protection before being compelled to testify and turn over sensitive information to a body which now, apparently, regards itself as unshackled from any check or balance,” he wrote.

This week, Republicans also formed the Special Select Committee on Judicial Transparency and Accountability to investigate the matter further. The panel held its first organizational meeting on Friday afternoon.

this story will be updated