Court administrator asks Supreme Court to intervene while lawmakers move ahead to join lawsuit
The Montana Capitol at Night (Photo by Darrell Ehrlick of the Daily Montanan).
In an emergency filing with the state’s highest court, the Montana Courts Administrator is asking the justices to take jurisdiction over the release of thousands of her emails, and stop the legislative subpoena which called upon the executive branch to take the judicial branch’s records on behalf of the legislative branch.
Randy Cox, attorney for administrator Beth McLaughlin, filed the emergency pleading on Tuesday, noting that emails from McLaughlin’s account have already started appearing on websites, despite pledges by the Attorney General’s Office that it would not release any confidential information contained in them.
Cox said in the pleadings that McLaughlin’s rights and that of the judiciary had been violated because their emails were taken without a chance to review or object. State email systems are housed in the Department of Administration, which is part of the executive branch. The Senate Judiciary on Friday issued a subpoena for about three months’ worth of McLaughlin’s email, but sent the subpoena to Misty Ann Giles, the Department of Administration director. According to court documents, Giles started processing the request and did not stop on Sunday when the Supreme Court ordered her to do so. Cox pointed out in the Supreme Court filing that his client, McLaughlin, was only given a courtesy copy of the subpoena and it was never addressed to her.
Tuesday’s filing indicates Giles turned over the emails on Monday, a total of 2,450.
“McLaughlin can confirm they contain, as suspected, privileged and confidential information,” the court documents state.
Since, the emails from McLaughlin have begun to appear online and in social media, including on the website of conservative commentator and former Greg Gianforte campaign staffer Aaron Flint, who posted more than 200 pages of emails obtained by “sources in the Legislature” this week.
On Monday, Attorney General Austin Knudsen issued a statement that said his office was representing the Legislature, and refused to acknowledge the court order because the legislative subpoena was for a separate matter unrelated to the constitutionality of Senate Bill 140, which would give the governor the power to appoint judges directly and abolishes the judicial nomination commission.
On Tuesday, Montana Senate staff justified the subpoena by saying it is investigating the judiciary branch’s impartiality, and said that a dump of documents showed judges commenting on possible legislation. In an email to the media, a Senate communications staff said McLaughlin’s email is about judges acting ethically, not Senate Bill 140.
The Legislature as a whole is soon to involve itself directly in the legal fight. The Senate Monday and the House Tuesday voted on party lines to authorize the body to intervene in the SB140 proceedings and hire attorney Emily Jones of Billings with an estimated cost of $10,000.
“The petitioners failed in their petition to name the House of Representatives as a party,” said House Majority Leader Sue Vinton, R-Billings. “As in past sessions, the legislature must authorize the hiring of outside counsel to intervene in this pending litigation.”
Jones has her own history with statewide Republican politics when she was sanctioned by a judge for blocking evidence in relation to her husband’s political consulting firm.
Democrats opposed the resolution to intervene in the lawsuit.
“I get that there are some … members of this body that are upset that a private party has decided to file a lawsuit saying that one of the bills that we passed out of this body is unconstitutional. It’s gonna happen some more,” said Rep. Danny Tenenbaum, D-Missoula.
“If individual members do want to participate in this lawsuit somehow, they can do so, but they should pay out of their pocket,” he added, suggesting that lawmakers who want to join the suit file an amicus brief themselves and fund their expenses by passing a hat around the chamber.
Senate Minority Leader Jill Cohenour, D-East Helena, said Tuesday that the court battle relating to SB140 and other bills that Republicans have passed to reshape the judiciary show that the GOP is “drunk on power.”
“This is an effort to do everything possible to drag the courts through the mud and try to make them look political,” she said.
Rep. Jessica Karjala, D-Billings, told the Daily Montanan she was contemplating filing a complaint about the release of McLaughlin’s emails to the media, referring to Flint’s post, but wasn’t sure who to complain against or what the proper venue would be. In committee meetings this week, she expressed “grave concern” about the dissemination of the emails.
Senate GOP leadership cited a section of the Montana Judicial Branch’s administrative policies on Twitter Tuesday that state that “employees should not have the expectation of privacy for any messages.”
The Daily Montanan received public records from McLaughlin as part of its reporting last week. Emails there show some judges commenting on proposed legislation that would affect the judiciary; other emails show lawmakers soliciting opinions from lawyers and judges about legislation aimed at the judiciary. One email shows the results of a poll not related to SB140 by the judges association on legislation with some voting on the issue and others not participating.
Polling judges has become part of the focus of these court filings with Republican lawmakers and leaders arguing it shows bias, a lack of impartiality, and possible misconduct. Lawmakers have also raised concerns about McLaughlin, a state employee, doing work on behalf of the judges association. Meanwhile, opponents argue that judges were merely commenting when asked about legislation that would affect the courts as experts in their field, and that polling members of an association is common in most industries.
The motion before the Supreme Court said that the legislative subpoena and the request for emails regarding the polling was too broad. The original subpoena asked for all emails except those pertaining to a final Supreme Court decision. Cox argued that many categories of privileged or confidential information could be found in McLaughlin’s emails during the course of several months, including information pertaining to the mental or physical health of those involved in court hearings, information about youth, or even employee information about members working for the judicial branch.
Cox also pointed out that emails from the judicial branch of government are oftentimes most restrictive in order to maintain the integrity of the courts, and allow them to handle sensitive information.
“Separate and apart from the disclosures specific to this case, 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 staffs that the judicial privilege is designed to prevent,” the court documents said. “The statewide importance of the legal and constitutional issues raised in this case could not be clearer. The case involves nothing less than the constitutional order of our system of government and an attack on separation of powers, not to mention fundamental constitutional rights to privacy.”
Editor’s note: This story has been updated at 8:10 p.m., to clarify a concern by Rep. Jessica Karjala, D-Billings.
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