Court files reveal another subpoena while court administrator responds

Lawyer: ‘Legislature is acting as its own judge’

The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General's Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).

Attorneys have filed several documents in the legal battle that tests the limits of a subpoena issued by the legislature, while lawmakers continue to investigate what Republicans believe is judicial bias and improper use of state equipment.

The filings give more detail into the dispute, plus set out legal arguments in one of the cases at the Montana Supreme Court.

The new filings reveal that after Attorney General Austin Knudsen’s office told the court it would not abide its effort to quash a legislative subpoena issued to the Department of Administration Director Misty Gilles for Court Administrator Beth McLaughlin’s records, it issued another subpoena to try to get the rest of the documents it sought.

Previously, it has been reported that the Legislature issued two subpoenas to Gilles, the original one and follow-up subpoena. However, a court exhibit shows that a third subpoena was issued, after the court stopped the other two, ostensibly to keep the search process going. Furthermore, testimony from a lawyer hired by Gilles show that as soon as the high court issued the subpoena for McLaughlin’s email on a Sunday, she stopped producing the emails —obeying the court’s order, said Helena attorney Dale Schowendgedt.


Though the Attorney General’s Office has filed a motion to have McLaughlin’s case dismissed, her attorney, Randy J. Cox of Missoula, said the government’s case is flawed because it believes legislative subpoenas are immune from judicial review, and that working with McLaughlin constitutes a conflict of interest. The Legislature and the governor have argued that a conflict of interest precludes the court from hearing the case.

“The Legislature does not sit in judgment of other branches and has no subpoena power ‘for the sake of exposure,’” Cox wrote, citing Watkins vs. the United States. “It ‘has no legal status…to establish an extraordinary tribunal for the trial of judicial and other officers.’”

Cox pointed out in his court documents that the impartiality of conservative hero and late Supreme Court Justice Antonin Scalia was challenged when the justice was called upon to make a decision regarding Vice President Dick Cheney, with whom he had hunted.

“While political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” Scalia wrote. “The people must have confidence in the integrity of Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor.”

Cox points out that while Knudsen’s office argues that the justices cannot be judges in their own case, the lawmakers have committed the same kind of breach “by declaring its subpoena power free from any judicial process, the Legislature is acting as its own judge.”

Writing on behalf of his client, Cox also asserts that lawmakers’ subpoena and investigation serves no legitimate legislative purpose.

“It does not relate to ‘proposed or possibly needed statutes’ or ‘the administration of existing laws,’” the court document states.

In the case, Cox also revealed that the Department of Administration has more than 5,000 emails from McLaughlin, about double what had previously been reported.

“The court has jurisdiction to review the legislative subpoenas,” Cox writes in his conclusion, “which are no more valid that if legislators wanted to wander around a judges chambers, turning over pieces of paper to see what they said.”

SB140 case

In several filings at the Supreme Court, the Attorney General’s office and the Governor’s counsel also said a public documents request by the attorneys for Dorothy Bradley, Bob Brown and the Montana League of Women Voters prove that the case is not just a matter of law, but that attorneys were using public documents requests as a substitute for the discovery process.

At the heart of the issue is request by the Edwards Law Firm to obtain the “junque files” of Senate Bill 140. Junque files are the email correspondence, drafts and any other information that Legislative Services uses to draft bills. The files can vary in size from a few documents to reams of correspondence, changes and input.

Attorneys for the legislature and governor argue that because the attorneys are trying to gather new information, the lawsuit should be sent to a district court instead of handled at the Supreme Court level.