AG to Supreme Court: Legislature will not abide court order

Executive, legislative branch pitted against the judiciary

By: - April 12, 2021 8:25 pm

Courtroom illustration (Getty Images)

The Montana Attorney General’s Office told the Montana Supreme Court that it will not follow orders the high court issued on Sunday, which would have stopped a legislative subpoena, and said it was continuing in its efforts to review the email of the court administrator as well as the conduct of other judges.

In a letter written by Lieutenant Attorney General Kristin Hansen on Monday and sent on Montana Attorney General Austin Knudsen’s letterhead, she said the court’s order violates the state’s separation of power. The letter was sent to Justice Jim Rice, who is the acting chief justice in the matter.

“The Legislature does not recognize this Court’s order as binding and will not abide it,” Hansen wrote. “The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the judiciary.”

On Friday, Senate Judiciary Chairman Keith Regier, R-Kalispell, issued a legislative subpoena to Department of Administration Director Misty Ann Giles for several months’ worth of email of courts administrator Beth McLaughlin. The subpoena demanded the emails by 3 p.m. Saturday.

In an emergency motion to the Supreme Court, McLaughlin’s attorney, Randy Cox, filed to quash or stop the subpoena because of concerns about emails containing confidential matters unrelated to Senate Bill 140, which Gov. Greg Gianforte signed into law. That law abolished the judicial nomination commission and also gave the governor power to appoint judges directly.

Lawmakers raised concerns about the impartiality of the judiciary after it was learned that the Montana Judges Association had polled its members as SB140 was proposed. McLaughlin originally reported that less than 40 members of the judiciary had voted in the informal poll, and the Supreme Court held that the six members currently hearing the challenge had not participated, rendering the concern moot. Meanwhile Chief Justice Mike McGrath recused himself, while his appointed replacement, Judge Kurt Krueger, recused himself after it was revealed that he had opposed the measure.

In emails obtained by the Daily Montanan, Senate staff were not satisfied with McLaughlin’s summary of the poll and demanded a more detailed canvassing of her email, which prompted the emergency motion to the state’s Supreme Court on Saturday and an order from the court on Sunday stopping the subpoena. That motion listed 10 possible categories of privacy concerns, including medical information, court personnel details and youth court issues.

On Monday, though, the Attorney General’s Office argued that the court does not have the power to stop a legislative subpoena and that lawmakers have a duty to look into possible judicial misconduct. Because of the separation of powers, Knudsen’s office said that it was proceeding with the search of McLaughlin’s email.

The next move is unclear, according to some legal experts. One of the challenges with this situation is some of the specific circumstances of the case, said Anthony Johnstone, a professor at the Alexander Blewett III School of Law at the University of Montana.

Usually, when controversy arises among the different branches, one side is pitted against the other. However, all three branches of government are involved in this case. The Legislature has issued its own subpoena, which it has the power to do, Johnstone explained. But the Attorney General’s office, which is part of the executive branch, is defending the lawmakers against the judiciary. Moreover, McLaughlin’s email happens to be on a state computer server, which is maintained by the Department of Administration, part of the executive branch. Because the administration has access to the email, it commanded Giles to retrieve the email from another – and presumably independent – branch of government.

The letter to the court also criticizes the court for issuing the order “outside of business hours and without opportunity for response,” but makes no mention of the subpoena’s deadline of Saturday afternoon.  Hansen’s letter also said that the email search “is wholly unrelated to the pending matter and concerns the ethical conduct of the Court Administrator and members of the Montana State Judiciary.”

Finally, the letter said that the concerns raised by McLaughlin about privacy concerns will be respected.

“It is a flailing argument by the Court Administrator to suggest the Legislature, when reviewing documents produced in response to subpoena would not understand and act on its duty to redact personal or private information, and there is no suggestion that would ever have happened in this matter,” Hansen said.

Johnstone said the matter boils down to how the separation of powers are construed in a sort of high-stakes game of “rock-paper-scissors.” Each branch has its own powers, including the lawmakers’ ability to subpoena, and each branch has immunities protecting it from the others.

“The lines of where the powers end and the immunities begin are determined by principles of the powers rather than by bright lines in the law,” Johnstone said. “Traditionally the branches have shown restraint and respect for their counterparts in the other branches, so we don’t see the questions of judicial powers and immunity come to a head the way they’ve done here.”

And most of the time, the conflicts are bilateral, meaning between two parties.

“There’s the additional aspect is that the executive branch is cooperating with the legislative branch and not the judicial and that complicates it,” Johnstone said. “No one wins when branches are at war with each other. It jeopardizes the rule of law to make claims of power in the absence of a referee, which is what you have when making claims about power.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.