An attorney representing legislative leadership formally filed a motion with the state Supreme Court this afternoon for the Legislature to intervene in a court case against Senate Bill 140, a proposal signed by the governor that would give the executive the ability to fill judicial vacancies in lieu of the Judicial Nomination Commission.
Lawmakers this week approved resolutions on party lines authorizing the Legislature to intervene in the case, which sits at the center of a still-unfolding fight over the proper separation of powers between the branches of state government. Outside counsel Emily Jones of Billings filed the motion shortly after the House passed a resolution to that effect Tuesday afternoon.
“The Legislature, an independent branch of state government, has a legally protectable interest in defending the laws it enacts, especially where those laws are constitutionally authorized,” the motion reads. “Additionally, the Montana State Senate has the constitutional right to confirm or not confirm judicial appointments. No other party in this case has these unique interests — they are exclusive to the Legislature.”
Lawmakers were not initially named as parties in the suit, which was filed almost immediately after Gov. Greg Gianforte signed SB140. The plaintiffs, including former Republican Secretary of State Bob Brown and former Democratic lawmaker Dorothy Bradley, argue that the bill unconstitutionally disrupts Montana’s judicial nomination process in violation of Article VII of the state constitution, which concerns the judiciary.
Last week, Republican Senate Judiciary Chair Keith Regier of Kalispell issued a subpoena to the state Department of Administration seeking emails from court administrator Beth McLaughlin in an attempt to root out results of a poll of Supreme Court members on their feelings on SB140 and other legislation. Two judges have already recused themselves from adjudicating the case — the chief justice and a district court judge set to replace him. McLaughlin’s attorney filed a motion to quash the subpoena over the weekend, which the court granted, but not before it had been partially fulfilled by acting DOA chief Misty Ann Giles. That controversy has largely played out in a parallel case.
Also on Tuesday, attorneys for Gianforte, named as a respondent in the suit, asked the court to set aside this weekend’s motion from McLaughlin’s lawyer.
“Those filings are procedurally and legally defective and disrupt from the actual issues in this case,” the motion reads. “First, the Administrator — a nonparty — sought to quash the subpoena of the Legislature — a nonparty —issued to the director of the Department of Administration —a nonparty. Second, the subject matter of her motion is unrelated to the issues in this proceeding.”
The motion also argues that it was possibly improper for McLaughlin, a “functionary of the court,” to ask the same court to quash a subpoena “pursuant to (the Legislature’s) separate investigation of this court.”
Jones, the Legislature’s outside counsel, is not new to the limelight. Her husband, Jake Eaton, is a GOP political operative, and in 2017 she faced reprimand by the court for attempting to influence witness testimony related to Eaton’s job during a campaign coordination lawsuit. Jones also represented a group of Republicans in a legal imbroglio last year over all-mail voting.
Democrats have repeatedly opposed the legislative effort to get involved in the SB140 case, arguing that it sets a precedent for lawmakers to step in and defend every piece of legislation subject to litigation. However, it has happened before, and the Republican majority is such that the resolutions to authorize interventions in the suit sailed through without needing minority support.
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