Lawmakers to investigate judiciary while emails show hurried records search

By: and - April 14, 2021 9:42 pm

The Old Supreme Court Chambers in the state capitol in Helena (Photo by Martin Kraft, Wikimedia Commons license).

On Wednesday, the Montana Legislature announced it was creating a special select committee to investigate the judicial branch, while emails between Department of Administration Acting Director Misty Ann Giles detail some of the behind-the-scenes efforts to obtain emails of Montana’s court administrator.

The committee will examine potential legislation regarding judicial transparency, recusals and other court practices that have become the subject of a legal battle arising from controversial legislation concerning judicial appointments, Senate President Mark Blasdel, R-Kalispell, said.

Sens. Greg Hertz, R-Polson, Tom McGillvray, R-Billings, Rep. Amy Regier, R-Kalispell and House Majority Leader Sue Vinton, R-Billings, will serve on the select committee, along with Sen. Diane Sands, D-Missoula, and House Minority Leader Kim Abbott, D-Helena. Democrats derided the committee as a “witch hunt” and an “inquisition.”

“Today’s action is just the latest attempt to undermine the Judiciary and our Constitution as Republicans look to take control of an independent branch of government,” said Abbott and Senate Minority Leader Jill Cohenour, D-East Helena, in a statement.

The Legislature has yet to announce when the committee will meet.

After lawmakers passed resolutions authorizing intervention in the suit earlier in the week, the Montana Supreme Court Wednesday added the two legislative chambers as parties to the lawsuit challenging Senate Bill 140, which would allow the governor to appoint judges directly and abolish the judicial nominating commission. The Legislature is also involved in an adjacent case in which Court Administrator Beth McLaughlin sought to quash a legislative subpoena from Senate Judiciary Chair Keith Regier, R-Kalispell, seeking a wide range of documents including the result of a poll of justices on SB140.

A series of plaintiffs, including former Republican Secretary of State Bob Brown, challenged the constitutionality of SB140 within a day of its signature by the governor. As it so happens, Blasdel introduced Brown as a special guest on the Senate floor Wednesday during the same session in which the Senate President announced the select committee. Brown declined to comment about the committee due to the pending litigation.

Meanwhile, email records obtained by The Daily Montanan paint a picture of Giles and her staff, along with attorneys and communication from the governor’s office, rushing to respond to the legislative subpoena sent by Keith Regier on Friday morning to turn over email of court administrator Beth McLaughlin by 3 p.m., Saturday. One email from Giles to state Chief Technology Officer Matt Van Syckle also seems to show that Giles had some idea that a subpoena was coming but was caught off guard by its breadth.

“Note the time due today that I have to personally appear or will be found in contempt so given it’s a broader scope than what we planned [we] may need to have a couple folks drop everything to get this done,” the email reads.

Mike Manion, chief legal counsel for the Department of Administration, sent a letter to Senate Minority Leader Jill Cohenour, D-Helena, that outlines the department’s response to the subpoena on Friday: Giles and her staff responded and immediately started to work on gathering the email, and did not hear from McLaughlin’s attorney or the judicial branch about any concerns until the following day when contacted by Randy J. Cox, McLaughlin’s attorney.

However, the subpoena was only issued to Giles, and McLaughlin’s attorney said that she had only received a courtesy copy after the email retrieval had begun, according to court records and email.

Manion told Cohenour that as soon as the Supreme Court issued its temporary injunction that it had stopped the search, turning over no further documents. However, a letter from the Attorney General’s office to Acting Chief Justice Jim Rice said the search was continuing, as the legislative and executive branch refused to recognize the Supreme Court’s order or authority.

Questions to the Montana Attorney General’s Office about whether the search stopped with the Supreme Court’s order or if it continued were not answered on Wednesday when asked by the Daily Montanan.

And email correspondence received Tuesday shows that Giles requested an extension on the subpoena deadline, even as the subpoena was halted by the courts. Senate GOP Chief of Staff Abra Belke complied with the request, extending the response deadline to April 19.

As the imbroglio stretched into this week, Giles also requested from Gianforte budget chief Kurt Alme and top counsel Anita Milanovich the ability to hire her own outside counsel, a request they granted pending a complete contract. Giles estimated a cost of around $10,000, and told Alme that she would keep the attorney engaged through the duration of the proceedings.

“The Department’s legal staff lack time and essential expertise to handle and represent me as Director in the matter,” Giles wrote in her request. “Private legal counsel is also required due to conflicts with the Administrative Legal Services representation of the judicial branch and court administrator, which are involved in the current matter.”

Emails between Cox and Giles show a concern for the privacy of the emails and a worry that protected confidential information may be leaked, jeopardizing cases or individual’s right to privacy.

“We are not trying to do anything other than safeguard private data and information from the records. If private information was disclosed, we may have an obligation to notify the affected individuals,” Cox wrote on Sunday afternoon. “Now that we know the subpoena was invalid and has been, accordingly, quashed, we need to re-bag the cat as much as possible given the haste with which the documents were produced.”

Giles characterizes her role as simply a third-party, complying the request.

“As a third party holder of these documents, DOA is not well suited to ascertain which fall within the concerns you raise,” Giles responded. “Again, I encourage you to reach out to the Legislature to resolve your concerns as they are the issuers of the subpoena.”

On Saturday, Cox had requested an opportunity to review the documents for privacy and confidential information. Giles responded that those questions should be posed to Speaker of the House Wylie Galt and President Mark Blasdel.

“Is it your intention to comply without limitation? Have you put into place any mechanism for reviewing subpoenaed judicial branch documents for the presence of personal or private information or information that is otherwise protected by law?” Cox asked.

Email correspondence also shows that Senate Republican Chief of Staff devised a list of search terms for Giles on Friday afternoon.

Here is the list of search terms Senate Republican Chief of Staff Abra Belke requested:
House Bill
Senate Bill
Judicial Nomination Commission
Montana Judges Assocation

McLaughlin’s emails, which were collected by Giles and the Department of Administration, went to Belke and possibly Blasdel and Regier, according to electronic communications obtain by the Daily Montanan.

Phone records provided to the Daily Montanan also show a request on Friday morning by Giles to speak directly with Milanovich, the chief counsel for Gov. Greg Gianforte. Phone logs also show at least two phone calls between Milanovich and Giles from Friday through weekend.

Giles also informed her staff on Friday afternoon that she knew about the upcoming subpoena.

“Apologies for throwing such a wrench in your day, I didn’t know when they told they were doing this there would be a hard time immediately today that it would have to be done and I would have to appear,” she wrote. “Defer to y’all just got to make sure it gets done. Thanks for all the help in advance here and apologies again for the headache.”

Text messages between Giles and Montana’s Chief Information Officer, a Gianforte appointee, show the department head discussing the subpoena and email.

“You may already know this but a link to the subpoena and scans of some of the emails provided are in this article,” Gilbertson wrote Giles, referencing a posting by conservative talkshow host Aaron Flint, with the headline, “Documents Obtained: Montana Judges Above the Law?”

Giles responded, “Yep. Got a court order to halt.”

“I talked to Matt about that yesterday,” Gilbertson replied. “This job is definitely looks to be interesting (sic).”

Meanwhile, Amber Conger, the communications director for the Department of Administration was sent the Flint article with a message from Giles: “FYI if you get questions on this, be sure to run it through me and I will run traps on it w(ith) you at Gov Office.”

Text messages also suggest that as many as four attorneys were standing by on Friday to review the files.

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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.

Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.