Judges gavel illustration (Wikimedia Commons 2.0)
One of Montana’s top judicial officers has accused the state’s Department of Justice and Legislature of abusing its power by issuing a subpoena seeking to peek into judges’ public and personal communications surrounding legislative efforts and a poll conducted by the Montana Judges Association about a bill to give the governor more power to elect judges.
In an April court filing, Justice Jim Rice said he has nothing to hide, but instead, something to fear — “a potentially inappropriate intrusion into the communications of the judiciary and into a justice’s private affairs, and what [Rice] believes is a recent disturbing pattern of overreaching by the Department of Justice, sometimes in concert with the Respondent State Legislature.”
The subpoena was issued after lawmakers learned that some judges participated in a poll about Senate Bill 140, which would eliminate the Judicial Nominating Committee and give the governor the ability to make judicial vacancy appointments directly. The bill was signed into law by Gov. Greg Gianforte, and within 24 hours, a group of plaintiffs challenged its constitutionality.
On April 15, Rice and all members of the Montana Supreme Court were issued subpoenas demanding they appear before the legislature on April 19 and requiring them to turn over all public and personal communications between Jan. 4 and April 14 regarding polls sent to judiciary members by the Montana Judges Association. The subpoenas also called for all public and personal communications regarding legislation introduced during the 2021 session.
While the high court enjoined the legislative subpoenas issued to justices, Rice requested his not be stayed so he could take his efforts to the district court, which he said “serve as gatekeepers to ensure legislative subpoenas are permitted only for clearly demonstrated legislative purposes.” On April 19, he filed a petition for relief and requested the subpoena be enjoined or quashed. He is scheduled to appear in court on May 10 at 2 p.m. and is represented by Curt Drake of Helena’s Drake Law Firm.
District Judge Mike McMahon temporarily quashed the subpoena until arguments over its validity can be heard in court.
“A legislatively initiated subpoena to a member of the judiciary inherently raises, directly and indirectly, multiple constitutional issues,” Rice wrote.
Rice frequently cited the U.S. Supreme Court Case Trump Vs. Mazars, which established a four-part test concerning Congress’s power to subpoena the president. The ruling said courts should:
- Carefully assess whether a subpoena is necessary to obtain the contents it is seeking or if they can be found elsewhere. The “confrontation between the two branches should be avoided whenever possible.”
- Insist on a subpoena no “no broader than reasonably necessary” to achieve the Legislature’s goal.
- Evaluate the evidence offered “to establish that subpoena advances a valid legislative purpose.” Adding that the “more detailed and substantial the evidence,” the better.
- Asses the burdens the subpoena puts on the other branch.
Whether members of the Judiciary deleted emails regarding Montana Judges Association polls or other legislative happenings is not a “valid legislative purpose” for a subpoena, Rice argued.
Addressing whether the contents of the subpoena could be found elsewhere, he said the deletion of information was widely reported in the news and could be found in court filings. Additionally, he said, because thousands of emails have already been turned over to the justice department, the subpoena is not necessary.
“The Legislature has already obtained from sources other than the petitioner the ‘information it needs’ for any valid legislative purpose,” he wrote in the petition. “How many more thousands of emails does the Legislature need before it is prepared to engage in Lawmaking?”
Regarding the “detailed and substantial evidence test,” Rice accused the subpoena of being the opposite.
“Here, the Legislature’s proferred purpose provides no ‘detailed and substantial’ evidence of legislative purpose and is a loosely worded and vague attempt to state a valid legislative purpose … and should fail,” he wrote.
One reason for the subpoena was to determine “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.”
Again, Rice argued that an investigation into the operations of the Judicial Nominating Commission in addressing the “polling controversy” is not enough of a “valid legislative purpose” to warrant a subpoena.
He said the thousands of judicial emails seized by the Legislature already show that Rice did not participate in any of the polls, “thus the subpoena’s stated purpose of obtaining documentation of Petitioner’s poll participation has already been accomplished, and is moot.”
Rice said, in theory, he could have exchanged private or oral messages about pending legislation or the polling process.
However, he added, “at some point we must stop to consider: What possible connection to the legitimate function of enacting legislation regarding the Judicial Standards Commission is served by a further search of the Petitioner’s communications to determine these details, in the framework of an inter-branch constitutional dispute?”
Going back to Trump Vs. Mazars, Rice said, the subpoena “woefully fails” to justify its intrusion. “The court should conclude that this ‘asserted legislative purpose’ fails to ‘warrant the significant step’ of issuing a subpoena, and avoid ‘the constitutional confrontation.’”
Abuse of Subpoena Power
In the filing, Rice said, the failure of the subpoena to mention “specific legislation, any lawful legislative function for which the information is needed, or even a scheduled hearing or meeting for which the commanded information is relevant, underscores that there is no identified legislative purpose at all.”
Because of that, he argued that the Legislature is overstepping its bounds by demanding public and personal texts, emails, and other communications by members of the judicial branch. Citing Trump Vs. Mazars, he said, “there is no ‘general’ power to inquire into private affairs and compel disclosures,” and there is “no congressional power to expose for the sake of exposure.”
Rice said the court should conclude that the subpoena was pursued inappropriately. “Not only does the subpoena fail for the lack of legitimate legislative purpose, but it also fails as an abuse of subpoena authority.”
Right to Privacy
Because the Supreme Court is not a government or public body, Rice argued that its communications are not subject to the open deliberation requirements of the state constitution and that justices’ communications “must be privileged and confidential.”
Rice took particular issue with the subpoena’s request to produce messages from his personal phone. Saying his daughter asking him, “where will people be able to carry now under that bill?” will make her words the subject for legislative oversight.
In a court declaration filed by Rice, he said, “I believe that great or irreparable harm to me and my judicial office is likely to occur if the subpoena is not temporarily quashed, enjoined, or stayed.”
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