Special legislative committee on judiciary issues subpoenas to Montana Supreme Court

Rep. Bishop: ‘It’s starting to feel like a power grab’

By: - April 15, 2021 5:49 pm

Helena, Montana, United States, North America

Legislative Republicans have dug in their heels in a standoff with Montana’s Supreme Court, taking a rare step to subpoena all seven sitting justices and deepening a quagmire that’s ensnared the three equal branches of state government.

The subpoenas were issued Thursday morning by a special select committee formed this week to investigate alleged judicial misconduct as part of a brewing legal battle over legislation abolishing the Judicial Nomination Commission and giving Gov. Greg Gianforte the authority to fill judicial vacancies himself.

The subpoenas, signed by House Speaker Wylie Galt, R-Martinsdale, and Senate President Mark Blasdel, R-Kalispell, request that the judges appear at the Capitol on Monday. The orders also name court administrator Beth McLaughlin in an effort to determine why she deleted the results of a poll of justices on legislation including Senate Bill 140, the law in question, and to see if she erased anything else.

GOP lawmakers have defended the law, Senate Bill 140, which was challenged in court less than a day after its signature by the governor, as constitutional, asserting the Legislature’s right to determine how to select judicial nominees.

“This request pertains to the Legislature’s investigation into whether members of the Judiciary or employees of the judicial branch deleted public records and information in violation of state law and policy; and whether the current policies and processes of the Judicial Standards Commission are sufficient to address the serious nature of polling members of the Judiciary to prejudge legislation and issues which have come and will come before the courts for decision,” the subpoenas read.

Republican lawmakers this session have also sought to overhaul the Judicial Standards Commission, which oversees the conduct of judges. One bill, since defeated, would have given the commission the ability to remove elected judges. Another that was passed out of the Senate on Thursday, House Bill 380, gives the Senate the ability to confirm — or reject — appointees to the commission.

The subpoenas issued Thursday morning request communications and documents from the Court concerning any polls of the justices, and regarding any legislation that has come or could come before the court. The subpoena also seeks to discover whether the Montana Judges Association, a lobby group representing the state’s judges, conducted any of its business using state resources. And specifically from McLaughlin, the Legislature seeks all emails from her government account between January 4 and April 12, “including recoverable deleted emails,” and any laptops, phones and other resources owned by the state that were used to conduct polling of judges regarding legislation this session.

“Recent revelations have raised serious concerns about the procedures and conduct of Montana’s judicial branch of government,” a statement from Republican legislative leadership reads. “Out of respect for the judiciary and all who come before our courts, the Legislature is committed to ensuring and reinforcing the integrity of Montana’s judicial branch. We have recently issued multiple legislative subpoenas in an effort to obtain clarity on where problems exist and inform what legislative reforms may be necessary to fix the situation.”

The select committee will meet for the first time tomorrow. Sen. Greg Hertz, R-Polson, will serve as the chair. He declined to comment on the matter on the record.

In the background of Thursday’s drama are two parallel but related issues: litigation in the state Supreme Court challenging the constitutionality of Senate Bill 140, a bill the governor has already signed abolishing the Judicial Nominating Commission; and the Legislature’s broader attempt to root out perceived impartiality in the court, an effort stemming from the revelation of polls of justices concerning SB140. Even beyond that, Republicans this session have made reshaping — if not remaking entirely — the judiciary a top priority, a reflection of long-pent up energy to pass conservative policies that was largely thwarted during 16 years of Democratic executive control.

Senate Majority Leader Cary Smith, R-Billings, shined a light on this ambition earlier Thursday during testimony in the House Judiciary Committee on SB402, a bill that would more than double the number of members of the Judicial Nominating Commission, specifically increasing the number of laypeople on the panel from four to 12 out of a total 15. Republicans intend to rely on the bill as a backup if the court rules that SB140 is unconstitutional.

Smith said that it’s his belief that the prior structure of the commission led to judges that are too liberal, citing three judges appointed by former Gov. Steve Bullock, a Democrat. They “could be considered very, very liberal,” he added.

The three “holdover” judicial appointments from Bullock are still awaiting a confirmation vote after hearings in the Senate Judiciary committee. Those three are Michele Reinhart Levine of Cascade County, Peter Ohman of Gallatin County and Christopher Abbott of Lewis and Clark County. Each had hundreds of pages of testimony in support of their candidacy from other judges, including the backing of different lawyers’ associations.

During Senate confirmation hearings, lawmakers asked questions about potential rulings on issues ranging from child abuse cases to abortion. Most of the judges had to sidestep questions because judicial codes of conduct prohibit a judge from making comments or giving opinions on either issues before the court or issues that could come before the court.

“The reason for the elimination of the commission (in SB140) is to give the governor more control,” Smith told committee members, adding that he should be able to appoint judges that match his preferences. “The reason for this bill, if Senate Bill 140 is not approved, is to give the governor more control.”

The court’s chief justice, Mike McGrath, has already recused himself from the SB 140 proceedings after he said he attempted to convince the governor’s office not to introduce and support the bill. The district court judge appointed to replace him, Judge Kurt Krueger of Butte, also recused himself after it was revealed that he responded to the internal poll of judges with adamant opposition to the law.

“It is not unprecedented for the Legislature to seek to intervene in constitutional cases, and it’s also largely symbolic,” said Anthony Johnstone, a constitutional law professor at the University of Montana. “As we’ve seen, the Legislature is free to appear as a friend of the court and offer its arguments there.”

The issue of the Legislature’s bias inquiry, however, is separate.

“The subpoenas and the question of impartiality, particularly extending beyond the current recusals, the subpoenas and these accusations of bias, even against those justices who did not participate in the particular poll, that’s another matter, and that’s extraordinary,” Johnstone said. “It’s not gonna change, one way or another, the court’s independent assessment of whether SB140 is unconstitutional.”

The canons and rules of judicial ethics regarding recusal and impartiality, Johnstone said, are generally left to the purview of the court itself. The judicial and legislative branches, which both have subpoena power — the former in order to decide a case, and the latter for lawmaking — often show deference to one another in constitutional conflicts, he added.

Still, legislative subpoenas can have a broad scope.

We’ve seen recently that even the president of the United States can be subpoenaed by Congress,” he said. “In those cases, given the separation of powers, it’s important that the courts don’t take the subpoena at face value. Instead they have to conduct their own independent review of whether a subpoena is a proper exercise of the legislative power, and whether it unduly interferes with the judicial power.”

McLaughlin’s attorney, Randy J. Cox, argued in a previous filing with the court that judges can only be tasked to appear under a subpoena in specific cases. He cites the U.S. Supreme Court’s 1955 ruling in Quinn vs. United States, which held that a Congressional subpoena must serve a “valid legislative purpose.”

Cox gives an illustration of where a legislative subpoena demanded testimony from a judicial officer. In that Connecticut Supreme Court Case, 2006’s Sullivan vs. McDonald, the court quashed or stopped the lawmakers and the subpoena, writing, “The failure to rule in this manner would allow unbridled power in any legislative committee to compel the attendance of sitting judicial officers. Such a ruling would cast a chilling effect upon the independence of the judiciary.”

The court also warned against such radical action by legislatures.

“Subpoenaing the documents of a co-equal branch of government as ‘occasion for constitutional confrontation between the two branches’ should be avoided whenever possible,” the court ruled.

Gov. Gianforte, a respondent in the SB140 lawsuit, declined to comment on Thursday’s subpoena when reached on the House floor Thursday, the Republican’s first day back at the Capitol following COVID-19 quarantine. Speaker Galt also declined to comment beyond the prepared statement and said it was too early to tell whether the select committee would lead to specific new pieces of legislation.

Sen. Keith Regier, R-Kalispell, the Senate Judiciary Committee Chair who issued a subpoena for McLaughlin’s emails that in part set off this legal drama, said he believes the Legislature has subpoena power over essentially anyone. The state Supreme Court quashed that subpoena last weekend, but Attorney General Austin Knudsen said in a filing on behalf of the Legislature that it would not abide by that order.

Democrats have been fiercely critical of the select committee and the associated subpoenas.

“Yesterday, Republicans advanced their attack on a co-equal, independent branch of government; today, they have escalated that attack,” a statement from House Minority Leader Kim Abbott and Sen. Diane Sands, the two Democrats on the select committee, reads. “Democrats will defend our constitution against this brazen assault on the bedrock American principle of checks and balances, and hold our colleagues accountable for this severe overreach.”

Some Republicans have joined the minority caucus in resisting certain judicial proposals. Also on Thursday, a group of Republicans including Rep. Bill Mercer, R-Billings, a former U.S. Attorney, voted down SB318 alongside Democrats 46-53. That bill, sponsored by Sen. Theresa Manzella, R-Hamilton, would codify parts of the canon of judicial ethics in state law and enshrine a definition of judicial malfeasance that includes “inserting what has been omitted from or omitting what has been inserted in a judicial decision or order.”

The way canons are written, it is the obligation of the judge to make the recusal decision,” Mercer said. 

“We’ve seen some pretty consistent pieces of legislation brought in front of us that have attempted to make the judiciary a partisan branch, to allow for partisan endorsements, to have our elections by district for the Supreme Court, and then to give basically unilateral appointment authority to the governor for any vacancies on the judiciary,” said Rep. Laurie Bishop, D-Livingston. “It’s starting to feel like a power grab.”

Darrell Ehrlick contributed to this story.

Editor’s note: This story has been updated to correct the name of Montana Attorney General Austin Knudsen 

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

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.