Governor, Legislature respond to SB140 challenge

AG office maintains Supreme Court cannot stop Legislature’s subpoena

By: - April 14, 2021 9:43 pm

Judges gavel illustration (Wikimedia Commons 2.0)

A mountain of legal briefs were filed Wednesday at the Montana Supreme Court in a battle that entangles all three branches of the state’s government.

One lawsuit challenges the constitutionality of a law passed by the Legislature and signed by the governor that changes the way judges are appointed in the state. Lawyers for Gov. Greg Gianforte and the Legislature replied to the original complaint that the group of petitioners who filed suit lack standing, are misconstruing history, and that the state’s constitution gives the Legislature the power to change how judges are selected.

Four different organizations also filed amicus curiae, or friend of the court briefs — two in favor of the petitioners, two in favor of Gianforte.

The other motion, which has yet to have any guidance issued, is an emergency petition by Montana Courts Administrator Beth McLaughlin to quash or stop a legislative subpoena that would turn over thousands of her email to lawmakers. Randy J. Cox, a lawyer for McLaughlin, has argued that releasing the information would jeopardize the privacy rights of individuals and the court, and called into question whether the executive branch could appropriate email at the behest of the Legislature.

On Thursday, Kristin Hansen, lieutenant attorney general, argued in a motion to dismiss McLaughlin’s claim that the court lacked the authority to stop the Legislature’s subpoena.

Response to SB140

Wednesday was the deadline the Supreme Court set for Gianforte and the Legislature to respond to the lawsuit regarding the constitutionality of Senate Bill 140. The court had granted an extension so that the Legislature could join the suit. The Senate passed a resolution earlier this week while the House passed a resolution on Tuesday that allowed it to become a party.

A cadre of lawyers, including Montana Attorney General Austin Knudsen and Anita Milanovich, Gianforte’s general counsel, responded to the petitioners, which includes former Secretary of State Bob Brown, former legislator Dorothy Bradley, Constitutional Convention Delegate Mae Nan Ellignson and the League of Women Voters. They are represented by Cliff Edwards and James Goetz.

The Legislature’s lawyers, Emily Jones and Talia Damrow, also filed responses to the lawsuit on Wednesday.

Both Gianforte and the Legislature argued SB140 fits within the state Constitution, and that the group challenging the newly minted law is being selective with its history. Furthermore, they argued that any harm that would come from the law is speculative and a matter of conjecture.

Much of the legal controversy centers on the process of nominating judicial candidates. The petitioners’ group argues that history, precedent and plain meaning demonstrate that nominations have to come from someone other than the governor.

“For any vacancy in the office of supreme court justice or district court judge, the governor shall appoint a replacement from nominees selected in a manner provided by law,” according to Article VII, Section 8 of the Montana Constitution.

Previously, those who are challenging SB140 argued that means some other process rather than a direct appointment by the governor. They also point out the differences between the state’s two Constitutions; the first passed when Montana became a state in 1889, and the second in 1972. They argue the change from direct governor appointment in the old, original constitution and then the changes in the newer one show an intentional change to limit the power of the governor and make appointments nonpartisan.

However, attorneys for Gianforte and the lawmakers said the plain meaning of the constitution mean that lawmakers get to decide how judges are appointed.

Furthermore, they said in court filings that SB140 requires all candidates for judicial nominations to have three letters of support other than from themselves, which satisfies the constitutional requirements of having the support of more than just the governor.

“Because Article VII Section 8’s plain language unambiguously grants the Legislature authority to determine how judicial nominees are selected, this Court need not — and should not — delve into the framer’s intent,” said the governor’s lawyers.

“The delegates (in the 1972 Constitutional Convention) considered and rejected a proposal to require a commission process in favor of deference to the Legislature to allow the creation of a commission, but not require it,” the Legislature’s lawyers argue in their response.

However, the Legislature’s lawyers called into question whether the state’s highest court could even act on the case because of questions raised about the impartiality of the judiciary. At the heart of the case is an informal poll taken by the Montana Judges Association, but recorded by McLaughlin.

“The court has advised (without disclosing additional information or documents about the email poll) that no member of the court participated in the poll. However, emails show that Judge Krueger’s response was sent to Justices McGrath, Rice, McKinnon, Baker, Sandefur and Gustafson, as were the response of every judge who opined or voted to ‘accept/reject’ SB140,” the response state. “Assuming the justices read these emails, they were aware Judge Krueger ‘adamantly oppose(d)” SB140 when he was appointed to this case…The airing of strong views by nearly all colleagues in a close-knit state cannot help but raise questions of bias.”

Even a footnote in the Legislature’s legal brief calls into question the Supreme Court’s power in the case.

“The Court granted the Legislature permission to intervene in this matter with a proviso that the Legislature commit to ‘abide by and comply with all order of the Court.’ The Legislature commits to abide by order that the court has proper jurisdiction to issue,” a reference to a letter that Hansen had sent to Acting Chief Justice Jim Rice informing the court that it had no power to stop a legislative subpoena for McLaughlin’s email and the lawmakers’ inquiry into the judiciary.

On Tuesday, Knudsen and Milanovich asked the court to strike and vacate the order it issued on Sunday, stopping the legislative subpoena and search of McLaughlin.

“The administrator warns that the legislative subpoena threatens ‘a constitutional crisis,’” the filing said. “But the governor respectfully suggests that the court’s April 11, 2021, attempt to stymie that threat may have unintentionally facilitated it.”

Amicus briefs

Four groups asked the court to file supporting briefs, two for the petitioners and two for the governor and legislative branches.

The Montana Family Foundation filed in support of the executive and legislative branches.

“MFF’s interest here is to argue that the impression petitioners advance that the previous process for selecting judges to fill vacancies is beyond reproach from the perspective of religious freedom and political independence. Petitioners argue that the previous selection method is so vastly superior in both intent and operation that it ipso facto secured an independent judiciary, and therefore, it has evolved into a constitutional requirement,” said attorney Jon Metropoulos. “(The case) rests on the false premise that the previous system was ‘superior’ in vetting of judicial nominees and secured an independent judiciary.”

The Mountain States Legal Foundation also weighed in on behalf of Gianforte and the lawmakers. Citing Supreme Court Justices Antonin Scalia and Neil Gorsuch, the group argued that the language of Montana Constitution is sufficiently clear to allow SB140 to pass into law.

“Petitioners’ urging that the court consider the Constitutional Convention Notes in order to alter the plain meaning of the text of the Montana Constitution should be rejected,” said attorney Cody J. Wisniewski. “It is the public meaning of the words in the Montana Constitution that bind and limit its lawfully elected legislators, not the subjective intent of the individuals who participated in the crafting of those words.”

Meanwhile, the normally opposing forces of the Montana Trial Lawyers and the Montana Defense Trial Lawyers came together to support the petitioners.

“Because civil litigants on all sides of the ‘vs.’ depend on qualified, fair and impartial judges, the Montana Trial Lawyers Association and the Montana Defense Trial Lawyers are joining as amici for like the first time ever to urge this court to declare SB140 unconstitutional.”

The argument, prepared by a team of attorneys for the two associations, draws upon the notes and published transcripts of the Constitutional Convention of 1972, which give greater detail to Article VII and the judicial selection process.

“It is contemplated that the Legislature will create a committee to select and name those nominees,” said Delegate Ben Berg.

“But it’s not so stated in our Constitution?” said Delegate Swanberg.

“No, because it was not stated for the very reason that if we locked it into the Constitution and the composition of the committee needed changing, it’s difficult to by amendment,” Berg replied.

The lawyers associations also said that SB140 fails to provide a way to select the nominees.

“SB140’s failure to establish any process for selecting nominees to be considered by the governor renders it inarguably unconstitutional,” the filing said.

They also point out that state’s judicial rules of conduct specifically prohibits judges from participating in any partisan activities.

“When a governor can directly appoint whomever he or she wants to fill a judicial vacancy, the public cannot trust that the new judge was chosen based on merit and will act with impartiality,” the associations argue. “Instead, the assumption will be that the chosen was based on political ideology.”

Separate but related case

At the same time, Hansen, the lieutenant attorney general,  filed a motion to dismiss the separate emergency request by McLaughlin to stop the legislative subpoena, arguing the separation of powers doesn’t allow the high court to stop the constitutionally protected right of lawmakers’ inquiry.

In her motion, Hansen said the purpose of the subpoena, issued by Senate Judiciary Chairman Keith Regier, R-Kalispell, was the misuse of the state email system, namely that McLaughlin was using her work account on behalf of the Montana Judges Association.

In her brief, she also said the investigation of the email will answer the questions as to whether McLaughlin deleted any public records via email, whether McLaughlin was working for the Judges Association on work time, and whether members of the judiciary were prejudging “legislation and issue which have come and will come before courts for decision.”

“This court cannot hinder the investigation simply because the responsive materials may tend to ‘disgrace’ the judicial branch or render it ‘infamous,’” the brief said. “The court does not get to routinely issue orders authoritatively exercising its checks and balances powers, then shun and deflect the Legislature’s power to exercise reciprocal checks on the judiciary.”

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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.