Minority report: GOP conspired with Governor’s Office to ‘hack’ judiciary records

Report notes DOA acting director ‘in constant communication’ with Governor’s Office

By: - May 3, 2021 10:28 pm

Details of the domes and lights beneath the state capitol rotunda in Helena, Montana. (Photo by Eric Seidle for the Daily Montanan.)

Misty Ann Giles, head of the Montana Department of Administration, was in “constant communication with the Governor’s Office” about a legislative subpoena before it was issued — the subpoena quickly quashed by the Montana Supreme Court — and the acting director of the DOA was eager to produce records “with no privacy review,” according to a scathing memo Democrats released Monday, “The Minority Report on Judicial Transparency and Accountability.”

Sen. Diane Sands, D-Missoula (Provided by the Montana Legislature).

The report issued to the 67th Montana Legislature from minority Democrats alleges a Republican-led select committee on judicial transparency is part of a “coordinated effort to attack and smear the independent judiciary” because the GOP has been told bills it wants to pass violate the Montana Constitution. Sen. Diane Sands, D-Missoula, and Rep. Kim Abbott, D-Helena, signed the document.

“Republicans know full well these bills will likely be held unconstitutional in the court, so the Republicans in the Legislature conspired with the Governor’s Office to hack the judiciary’s records in an effort to smear and delegitimize the courts,” said the report.

Giles could not be reached for comment via a voicemail left for a communications person in the Department of Administration late Monday afternoon. Sen. Greg Hertz, R-Polson, chair of the committee on judicial transparency, said late Monday via text message that he had not yet received a copy of the minority report.

However, last week, the Republican-led committee on released a draft report generally arguing the Supreme Court was pre-judging bills likely to face legal challenges through polls issued by a lobbying organization representing district court judges. The report alleged the judiciary used state-provided email and spent work-time lobbying, acts it said are prohibited by law and policy.

The Special Joint Select Committee on Judicial Transparency and Accountability was set up following a bill that passed, Senate Bill 140, to change the way judges are appointed and an ensuing legal battle. The law was almost immediately challenged in court, and a fight has broken out among the three branches of government about how to settle related disputes.

The report last week did not include comments from Democrats, but the minority report issued Monday blasted the judicial probe and said Democrats “struggle to understand the purpose of this committee.”

“We believe this committee, and its actions, were set up for political purposes to further undermine our independent

Rep. Kim Abbott, D-Helena (Provided by the Montana Legislature).

courts, and is therefore an illegitimate legislative proceeding,” the report said.

The report noted Minority Leader Sen. Jill Cohenhour, D-East Helena, obtained email and phone records that show Giles was aware of the legislative subpoena for emails from the judicial branch “well before it was issued.” The report said she tried to “outrun a court order” to quash the subpoena in order to prevent private information from being released, such as personal medical information, security threats against judges, and Youth Court Cases. But the minority report said the DOA does not own those records.

“While the executive branch may hold these records on the state servers, they are not the owners of these records but rather the custodians,” the report said. “It is unprecedented for the executive branch to essentially hack into the judicial branch’s records, without consent or providing any opportunity to review the records for privileged or confidential information, affecting the constitutionally-protected privacy rights of third parties.”

In releasing those records to legislative Republicans and staff, the DOA director “created immense legal liability for the State of Montana” and potentially violate the privacy rights of people who have nothing to do with SB140 or judge polling.

“Her (Giles’) rush to outrun an impending court order on the improper subpoena could cost Montana taxpayers dearly when lawsuits inevitably follow,” the report said.

“In conclusion, the minority does not support the creation of committees for political theater. This is a waste of public resources and an embarrassment to the dignity of the Legislature. The only purpose of this select committee is to undermine and smear the judicial branch, and delegitimize any future decisions that may strike down unconstitutional actions of this body.”

Minority report

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.