Supreme Court Justice testifies in case challenging Legislature’s subpoena power

Justice Jim Rice says the legislature overstepped its power in subpoenaing his personal and professional communications

By: - May 10, 2021 8:57 pm

Supreme Court Justice Jim Rice takes the witness stand in Lewis and Clark County District Court on May 10, 2021

Supreme Court Justice Jim Rice fielded questions for one and a half hours Monday about his efforts to quash a legislative subpoena seeking personal and professional communications relating to legislative efforts and polls conducted by the Montana Judges Association.

On behalf of the Montana Legislature, state attorney Derek Oestreicher argued in Lewis and Clark County District Court that Rice and lawmakers should resolve their interbranch dispute through negotiations outside of court, and Rice should not have been so quick to file a petition to quash the subpoena.

“We have all three branches of government in a sort of Mexican standoff,” Oestreicher said. “It’s an extraordinary circumstance that calls for a different way of resolving the dispute than through judicial adjudication.”

Lawmakers are looking for evidence that justices are prejudging legislation that may come before them in court. Rice was the only person to take the stand, and he criticized the Legislature’s subpoena efforts in his testimony.

“I don’t have anything to hide, and I don’t think that anything I’ve done in the Supreme Court would be a disgrace,” he said.

Following Gov. Greg Gianforte’s signing of Senate Bill 140, which would give the governor expanded power to fill judicial vacancies, and a subsequent lawsuit challenging its constitutionality, the Legislature issued a subpoena on all members of the Montana Supreme Court.

The high court enjoined the legislative subpoenas issued to justices, but Rice took his fight to District Court, which Oestreicher called the “less wrong” action. Rice, who served three terms in the Montana legislature as a Republican, accused the Legislature and Department of Justice of overreach.

“I think that what has happened here is an attack upon the judicial branch and the integrity of the court and the public reputation of justices individually … and I think it needed to be brought to the court,” he said during testimony Monday.

State attorney Derek Oestreicher questions Supreme Court Justice Jim Rice in Lewis and Clark County District Court on May 10, 2021.

Oestreicher continually proposed the Legislature and judiciary should negotiate and accommodate one another to resolve the issue. But District Judge Mike McMahon quizzed Oestreicher on his argument.

“What accommodation did the Legislature give Justice Rice before it issued the subpoena? Zero, correct?” McMahon said.

Instead, McMahon said, the Legislature skipped the negotiation and accommodation step and “put pen to paper and issued a suspect subpoena and said you have a certain amount of days to produce these documents and appear.”

McMahon earlier issued a temporary stay on the subpoena but did not make a final ruling Monday.

Sen. Greg Hertz, R-Polson, said in a statement the Legislature anticipated the justices would “negotiate the details of compliance with their subpoenas if there were any issues, instead of trying to completely quash the release of public information from the judicial branch.”

Additionally, he said, the Legislature has reached out numerous times to the justices to engage in negotiations and were declined.

Hertz is the chair of the legislative Select Committee on Judicial Accountability and Transparency, investigating the judiciary’s actions surrounding its members commenting and being polled on proposed legislation this session.

In his questions, McMahon also probed Oestreicher on the validity of the subpoena. He pointed to a statute in the Montana Code Annotated that states a legislative subpoena is sufficient, in part, if “it states whether the proceeding is before the house of representatives, the senate, or a committee.”

“Where does it say whether the proceeding is before the House of Representatives, the Senate or a committee?” he asked.

“Your honor, it doesn’t” Oestreicher replied.

McMahon questioned the power of the Legislature to subpoena documents and not only witnesses. In the Legislature’s defense, Oestreicher pointed to part of the MCA that states: “A witness cannot refuse to testify to any fact or to produce any paper concerning which the witness is examined for the reason that the witness’s testimony or the production of the paper tends to disgrace the witness or render the witness infamous.“

Rice’s attorney, Curt Drake of Helena’s Drake Law Firm, said the Legislature was being hypocritical by issuing the subpoena before trying to negotiate. He argued the subpoena is entirely invalid and should be quashed.

Curt Drake questions his client, Supreme Court Justice Jim Rice, in Lewis and Clark County District Court
on May 10, 2021.

“They served Justice Rice on Thursday, April 15, with a subpoena that required him to be before the Legislature the following Monday by 3 p.m. or he could risk arrest power from the legislature,” Drake said. “These are the people that now want to tell us what we should have done is negotiated.”

In Rice’s petition to quash the subpoena, he said its scope is too broad in asking for personal communications about legislation. And he said conversations with his daughter about gun legislation will make her words the subject for legislative oversight.

Despite the wording of the subpoena, Oestreicher said that’s not what the Legislature wants, but rather it wants to sit down with Rice to find a middle ground on what communications he should have to hand over.

“We don’t want text messages between Justice Rice and his daughter over new gun legislation,” he said.

All the Legislature wants, Hertz said in a statement, is public documents. “The legislative subpoenas are simply seeking public records from public officials. Why are Montana’s Supreme Court justices and their employees going to such extreme lengths to prevent the public from seeing public information?”

When that point came up in court, Judge McMahon asked why the Legislature issued a subpoena instead of public records requests or filing a complaint with the Judicial Standards Commission — the body tasked with handling judicial complaints. Mahon said the Legislature is doing an investigation that could be handled by the Judicial Standards Commission.

“What gives [the Legislature] the right to do something other than the normal person has the right to do?” he asked.

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.

Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .

MORE FROM AUTHOR