Supreme Court stops legislative subpoenas in emergency action during the weekend

In a flurry of uncommon weekend activity, the Montana Supreme Court defanged a legislative end run by lawmakers to force the courts to hand over emails in a case that pits the three branches of state government against each other.

On Sunday, the state’s highest court said that a legislative subpoena issued by Sen. Keith Regier, R-Kalispell, who is the head of the Senate’s Judiciary Committee, was inappropriate and stopped the lawmakers and the executive branch from taking email from the judicial branch.

The legal motions added another party to an already growing list of participants in a lawsuit that centers on Senate Bill 140. The Legislature passed the bill, which would substantially reshape the Montana courts by abolishing the Judicial Nomination Commission and allowing the governor to directly appoint judges. Less than 24 hours after signing the law giving himself the power to appoint judges, Gov. Greg Gianforte was sued by a coalition of leaders, including a former Democrat lawmaker, a former Republican Secretary of State, a delegate to the state’s 1972 Constitutional Convention and the Montana League of Women Voters.

Soon after the initial court filing, the House and Senate asked the court for time to allow both chambers to pass resolutions to be made party to the suit. In order for the lawmakers to join the lawsuit, a resolution must pass each respective chamber. Those resolutions were both introduced Friday and are moving forward.

On Friday, though, Regier also issued a legislative subpoena to Acting Director of the Department of Administration Misty Giles for court administrator Beth McLaughlin’s emails, although it wasn’t limited to communications about SB140. McLaughlin was not served with the subpoena. The subpoena also commanded the Department of Administration, which is part of Gianforte’s executive branch, to save and retrieve all email or deleted messages except for deliberations of final Supreme Court decisions within 24 hours.

Gianforte’s office did not respond to requests for comment on this story. The Senate GOP staff and Sen. Regier were also contacted but did not respond.

Meanwhile, as the request for the emails began, the lawmakers introduced legislation to join the lawsuit and set aside $10,000 in state funds for the legal challenge, even though expert testimony said the cost to the taxpayers could run more than 10 times that amount.

McLaughlin hired an attorney to represent the her, Randy J. Cox of Boone Karlberg in Missoula. Cox made an emergency motion to quash or stop the subpoena and stop the lawmakers from moving ahead because of sensitive information that could be publicly disclosed if the emails were released, including the privacy issues of many lawsuits.

Correspondence between McLaughlin and Republican staff members show that leaders were not happy with a summary McLaughlin provided, which said that nearly 40 judges throughout the state had participated in an informal poll about SB140 conducted by the Montana Judges Association as it moved through the legislative process. At the same time, the state’s Supreme Court agreed to hear the case with six justices, noting that Chief Justice Mike McGrath had recused himself. The high court also rendered the GOP’s challenge of impartiality moot because none of the six justices who will hear the case had not participated in the poll.

Still, even after the Supreme Court had ruled that none of the justices had participated in the conversation regarding SB140, Regier issued the subpoena, ostensibly to see which judges had voted and any correspondence. The Supreme Court stopped the subpoena and barred the executive branch from gathering the email, at least until the court can hear briefings on the issues.

The order on Sunday capped a lightning quick series of actions that began on Thursday afternoon when Abra Belke, the Chief of Staff for the Republican Senate, sent an email to McLaughlin with five additional questions:

1. 1. Will you be producing the documents requested by the Legislature in accordance with MCA 3-1-702 or are you providing notice that you will produce nothing further?
   2. Did you delete emails and records related to the (Montana Judges Association) judge’s poll on SB 140?
   3. Identify the judges who called you to vote on the SB 140 poll.
   4. Identify the judges who responded to the SB140 poll who did not use the ‘reply all’ feature.
   5. Produce the Judicial Branch policy re: retention of records today.

Belke’s email told McLaughlin, “[W]e expect the response to the above inquiries today. We continue to expect your production of the requested documents, no later than (close of business) tomorrow, 4/8.”

However, even as Belke was demanding more information, the Supreme Court had already determined that the six justices hadn’t weighed in on the matter and were therefore not prejudiced on the issue. Still, Belke continued to demand a response within several hours.

“I provided the information that I have in my possession for SB140,” McLaughlin responded three hours later. “As this (the poll) occurred more than two months ago, I have no recollection of who called me with a vote. If I had the documents, I would have sent them yesterday.”

On Friday, Regier issued a subpoena to Misty Ann Giles of the State Department of Administration, which demanded Giles turn over McLaughlin’s emails by 3 p.m. Saturday, including all email and attachments between Jan. 4 and April 8, 2021, and all recoverable deleted emails. The Department of Administration oversees information technology and would have access to McLaughlin’s emails.

Cox, representing McLaughlin, filed the emergency request because the potential release of all McLaughlin’s email could “implicate the rights and privileges of other parties.” For the court, he cataloged some of those concerns, which included information pertaining to medical information for employees and elected officials, disciplinary concerns from within the judicial branch, discussion about pending or ongoing litigation, and information about youth court cases. This type of information is routinely withheld from public data release, and Cox argued that making it public could have a disastrous effect on many cases. In total, he pointed out 10 areas of concern with releasing all of McLaughlin’s email.

In a letter included as part of the court filing, Cox pleaded with the Giles and the Department of Administration to tailor legislative subpoena so the scope wouldn’t be so broad.

“We firmly take the position that judicial records are not subject to legislative subpoena. We further take the position that the Department of Administration has no authority over judicial branch records,” Cox writes. “Nevertheless, I write to propose at least a temporary solution that avoids irreparable harm wrought by executive branch production of judicial records containing private and privileged information.”

Cox apparently never received an answer to letter in which he told lawmakers he would be forced to file an emergency request with the court if they could not come to a quick resolution.

“If you are unwilling to agree to our proposal, we will file an emergency petition,” he said.

Though the issue of legislative subpoenas has not been extensively litigated in Montana, according to Cox’s brief, most courts around the country have held that when lawmakers attempt to subpoena one of the two other branches of government, it should be limited.

“Even if there was a legitimate legislative purpose to seek the MJA poll information, there is no conceivable justification for demanding all of McLaughlin’s emails and attachments on any and all topics or for seeking them from the executive branch,” Cox said.

Cox pointed out that lawmakers, who have not officially been named a party to the lawsuit, are attempting to use the executive branch to obtain information about the judicial branch.

“Here, of course, this subpoena attempts to extract information by going to the computers of the executive branch without even asking the judicial branch,” Cox said.

Cox warned that if the information is released, it might not only damage others who have nothing to do with SB 140, but also create a chill on communication with courts, a dangerous precedent.

“To force the extensive disclosure of such communications rings a bell that cannot be un-rung,” the emergency motion said. “The subpoena would send an unmistakable message to Montana’s judiciary: ‘Your communications are not protected.’ This has precisely the chilling effect on judges and their staff that the judicial privilege is designed to prevent.”

In its temporary order, the justices slapped down the legislative attempt at obtaining the email records.

“Neither the Legislature nor the Department of Administration are parties in this litigation,” the order said.

It also noted that the legislative subpoena doesn’t even reference the litigation at the Supreme Court or Senate Bill 140, making it appear as if the request may be separate.

“The actions commanded by the legislative subpoena are, facially, extremely broad in scope, with a substantial potential of the infliction of great harm if permitted to be executed as stated,” the order continued.

The justices also set a timeline for hearing more about the subpoena, including giving McLaughlin seven days to file a supplemental pleading, which will address whether the Legislature’s request should be seen as part of Senate Bill 140. After that, the Legislature or the Department of Administration can respond to quashing the subpoena, and all parties have until May 3 to respond to McLaughlin’s request to become a party in the matter.