Court enjoins lawmakers’ subpoenas, while Chief Justice issues a letter to legislators

Democrats say inquiry is a ‘witch hunt,’ while Republicans deride court for judging itself

By: and - April 16, 2021 7:01 pm

The Montana State Supreme Court made a series of orders on Friday that temporarily suspended legislative subpoenas and allow the high court to slow the process on two different but related cases, which entangled all three branches of state government and stretch the limits of their respective constitutional power.

In its order on Friday afternoon, the court gave Montana Court Administrator Beth McLaughlin 14 days until April 30, to respond to questions about the release of her email and why the case shouldn’t be dismissed. Meanwhile, the court said it was enjoining — or suspending — a legislative subpoena that allowed the state’s Department of Administration to take more than 2,400 emails.

It is unclear if the Department of Administration has the bulk of email it had originally wanted, and if the search process would even be stopped, as required by the courts.

The high court also enjoined legislative subpoenas issued to McLaughlin and all seven justices of the Supreme Court, which would have required them to appear on Monday before a special select committee of lawmakers, which met for the first time on Friday afternoon.

In their order, the full Supreme Court said that the matters raised were unique in the state’s 132-year legal history, and in order to ensure privacy rights and due process, the matter would be put on an ordered schedule that will take it beyond the end of the month.

In its order, the court said, “It is clear the Legislature, to exercise its separate and distinct powers of governance effectively, must have the power to acquire information regarding the subject matter of its legislation. However, neither the subpoena power of the Legislature, nor that of the judiciary, is subject to unquestioned enforcement.

“This court has not previously considered the extent of any limitations on the Legislature’s subpoena power. The scope of the Legislature’s inherent legal authority to compel information, and how it applies under particular circumstances, are quintessentially functions for this court to determine within our exclusive constitutional duty and authority under Article III, Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution. We have not heretofore considered whether that authority is limited when competing rights or privileges exist and are expressed.”

The court also pushed back against lawmakers who asserted that their inquiry into the judiciary was meddling unconstitutionally where the courts have no power.

“The Legislature seeks to obtain a broad swath of internal judicial branch documents and communications, some of which appear to be confidential and privileged as a matter of law from compelled disclosure to the Legislature, but some of which may very well be reachable by legislative subpoena. All those requests, moreover, are directly or indirectly related, and certainly have directly arisen from, the matters now squarely at issue before this court in the above-captioned Brown and McLaughlin proceedings, in both of which the Legislature is now a party under the personal jurisdiction of this Court,” the court wrote in its seven-page order.

“As a result, the legality of the previously issued legislative subpoenas, and any similar subpoenas regarding the same subject matter, is currently at issue before this court … for adjudication, upon participation of the parties thereto under due process of law, under the exclusive constitutional power and authority of this Court under Article III, Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution. Within that legal framework, it is the exclusive constitutional duty of this Court to consider the competing constitutional and other legal interests at issue and adjudicate them accordingly to resolve the dispute matters at issue as a matter of law.”

The court gave McLaughlin, the Legislature and the Montana Department of Administration until April 30 to file motions with court so that the issues can be “presented and adjudicated in the course of due process.”

While it dismissed McLaughlin’s original complaint, it allowed her second motion, concerning emails and the release of private information to proceed.

Also, Justice Jim Rice requested — and the court granted — the subpoena issued to him by the Legislature not be stayed because he wants to seek a review in a district court.


Chief Justice Mike McGrath also issued a three-page letter that he presented to the lawmakers, and Senate Republicans also issued a statement, in a flurry of competing back-and-forth public messages.

The Senate Republicans said, “Today the Supreme Court rejected the court filings in the SB140 case by its court administrator related to the investigative subpoenas, effectively acknowledging that its weekend order was improper,” the statement by the Senate GOP said. “It’s disappointing but not surprising that the remaining justices ruled on their own subpoenas, a clear and inappropriate conflict of interest.”

It said that it would continue to assert its investigative authority “to obtain public records from public officials.”

But McGrath’s letter to the lawmakers rebuts much of what the lawmakers had to say, and also gave a list of what legislation the Montana Judges Association supports or opposes. McGrath said that all Supreme Court Judges recuse themselves from those infrequent polls because the issues may wind up for decision at the state’s highest — and only — court of appeal.

“Although not the way I would have preferred to open a dialogue between our coordinate branches of government, I welcome the opportunity to provide you with information about how and under what circumstances the judicial branch engages with the legislative process on matters involving court operations,” McGrath wrote to Senate President Mark Blasdel and Speaker of the House Wylie Galt.

McGrath defended polling of judges on the legislation, and said the practice is long-standing.

“It is appropriate for judicial officers — those who sit on cases every day and manage the courts’ ever-growing caseloads — to apprise the Legislature of how its decisions may affect the functionality of the judicial system and impact Montanans. For many years the elected members of the judicial branch have worked through the Montana Judges Association to give the legislative body information important to the Legislature’s consideration,” McGrath wrote.

He also pointed out that the association was funded by dues from the judges themselves, not state funds, and its primary purpose is to hold mandatory educational conferences twice a year.

“On the rare occasion when I have, in my role as chief, needed to advocate on behalf of a policy matter directly impacting the judicial branch, I have recused myself from any case involving the bill as I did with SB140,” McGrath said.

He also said that, despite reports to the contrary, he never consulted with any other attorney on the case besides the lieutenant attorney general.

McGrath’s letter also said it’s important for lawmakers to hear from the judiciary about proposed legislation, and there are numerous cases where that input has been beneficial.

“As (an) example, input was sought from the legislative committee regarding HB90 from Justice Gustafson and others because of her expertise in child dependency,” he wrote. “The MJA has created a legislative committee that has authority to determine if a proposed bill should be given judicial input. Most sessions, the judiciary takes positions on a very limited number of bills outside of the budget process.”

McGrath described how the polling process — which has become such a focal point of the GOP-led Senate concern — is conducted.

Here are the bills that the Montana Judges Association has taken a poll on:

SB 175 (Removing principal from the judges retirement system): SUPPORTED
HB 342 and HB 355 (Partisan election of judges): OPPOSED
HB 325 (The election of Supreme Court Judges by district): OPPOSED
HB 685 (Replacing Judicial Standards Commission): OPPOSED
SB 140 (Replacing the Judicial Nominating Commission): OPPOSED
* The MJA is SUPPORTING HJ 40 proposal to study the Judicial Standards Commission

“If a proposed bill has major impact on the judiciary, the association, through its president, may conduct a poll of the members,” McGrath wrote. “MJA’s position is not a secret. Indeed, the very purpose of the poll is to inform the Legislature of the judiciary’s policy position on how the bill impacts the branch.

“…It would be irresponsible for the judicial branch not to inform the Legislature on proposals that directly affect the court system and how it functions. Judges come before you as witnesses, precisely because they know you are the policymakers; it has been our experience that the Legislature appreciates having information from those involved in a subject.”

Finally, the chief justice lamented how the controversy that has ensnared all three branches has played out.

“It is unfortunate that we have not had the opportunity thus far to discuss our procedures in a more congenial fashion,” McGrath wrote. “In other years, if the Legislature desired an in-depth investigation, a referral would be made to the Legislative Auditor for a performance audit. The judicial branch would gladly cooperate with the Legislative Auditor process.”

Special Select Committee hearing

The select committee that GOP leadership formed this week to investigate the judiciary had a brief first meeting on Friday, laying out expectations for the committee’s work and responding to orders from the court attempting to enjoin the legislative subpoenas from earlier in the week.

The judges, said, Sen. Greg Hertz, R-Polson, who’s chairing the special committee, “prejudged pending legislation that is likely to be brought before the courts” when they responded to a poll on legislation this session sent out on behalf of the Montana Judges Association.

Hertz in the committee did not say definitively whether the judges that the Legislature subpoenaed this week would appear Monday, but he said the decision by the bulk of the Supreme Court to quash a subpoena order issued to the court itself amounted to a conflict of interest.

“No other citizen would have the audacity to claim that he or she gets to be the judge in their own case,” Hertz said.

The committee’s two Democrats, House Minority Leader Kim Abbott of Helena and Sen. Diane Sands of Missoula, questioned the very precept of the special committee, and said the Legislature’s standoff with the courts amounted to a constitutional crisis.

“This is part of what I view as a session-long attack on a necessarily nonpartisan and independent judiciary,” Abbott said. “It feels like a constitutional crisis point for me…and I feel like it undercuts the checks and balances that Montanans demand, respect and depend-on.”

Sands, who first served in the 1997 legislative session, said she feels it’s disingenuous to assert that the poll conducted by the Judges Association is “outside the realm of the legitimate process of the court.”

“The judges’ association comes in every year on a number of bills,” she said, calling the committee a “witch hunt.”

‘Public records from public officials’

One of the central flashpoints of this controversy centers on whether emails and communications from the judiciary are indeed public record. While case law has continuously ruled that courts are public bodies, and therefore subject to public observation, the emails and communications of the judicial branch have routinely been off limits for several reasons; sensitive information may be in the contents, and there’s an understanding that the judicial branch must be free to deliberate issues without the fear of those deliberations becoming public.

“The Legislature respects the judicial branch and is committed to finding solutions to the numerous concerning issues at hand, including deleting public record emails, pre-judging cases that are likely to come before the court, using state time and resources for a private association, and ruling on matters where judges have conflicts of interest,” the Senate Republicans said.

Also on Friday, the Supreme Court rejected a motion from the Montana Family Foundation that would have allowed an extension to file an amicus curiae or friend of the court brief because the attorney missed the deadline.

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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.