District judge blocks legislative subpoena for communications of Supreme Court justice

House majority leader said Legislature still will seek records

By: - May 18, 2021 1:54 pm

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

A Helena District Court judge granted a preliminary injunction Monday on a subpoena seeking private and professional communications of Supreme Court Justice Jim Rice, saying that the Legislature overstepped its investigative and constitutional authorities.

In the ruling, District Judge Michael McMahon said the legislative subpoena exceeds its authority and unconstitutionally interferes with the powers of the Judicial Standards Commission — “The Montana Judicial Standards Commission, not the Legislature, has the constitutional authority to subpoena witnesses and documents in alleged judicial misconduct matters,” he wrote. Additionally, he said the Legislature’s subpoena was structurally fraught as it did not state whether the proceeding is to occur before the House of Representatives, the Senate or a committee, as is required by state statute.

McMahon also rejected the Legislature’s request for a stay to negotiate the subpoena with Rice saying the Legislature’s political interest in the case would hinder it from being able to participate in negotiations.

“This court would have to be ‘blind’ not to see what ‘all others can see and understand’ that the Justice Rice subpoena does not represent a run-of-the-mill legislative effort but rather a clash between separate government branches over records of intense Legislative political interest,” the order said. The judge added: “There is no evidence that the Legislature would or could negotiate in good faith with Justice Rice.”

In a statement on the ruling, House Majority Leader Rep. Sue Vinton, R-Billings, said, “We expect the justices and their employee to produce public records through one process or another during the course of our investigation. The judicial branch of government does not get to hide public records that every person in the executive or legislative branches would have to produce. Sunlight is the best disinfectant. Judge McMahon’s ruling today crystallizes the need for new legislation to bring more transparency and accountability to the judicial branch of government.”

The subpoena demanded Rice turn over all personal and professional communications regarding legislative efforts and polls conducted by the Montana Judges Association as part of an investigation by the Legislature seeking evidence that members of the judiciary were hiding or deleting public information that would show they were prejudging legislation that may come before them. The Legislature was specifically concerned about polling on Senate Bill 140, which abolished the Judicial Nominating Commission and awarded the governor expanded power to fill judicial vacancies.

Less than 24 hours after SB140 was signed, its constitutionality was challenged in a lawsuit filed in the Supreme Court. The subpoena also said the records requested were relevant to an investigation into the Judicial Standards Commission’s handling of 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.”

At a May 10 hearing, McMahon called the subpoena “suspect” questioned state attorney Derek Oestricher’s request for a stay in the proceedings so the Legislature could negotiate with Rice. “What accommodation did the Legislature give Justice Rice before it issued the subpoena? Zero, correct?” McMahon said at the hearing.

While subpoenas were issued to all justices of the Supreme Court, Rice was the only one to take his fight to District Court, while the others issued a ruling enjoining them.

The Legislature and Department of Justice have accused the judiciary of shady behavior. In a statement, Attorney General Austin Knudsen said, “What has been happening behind closed doors at the Supreme Court is ugly: Violations of our judicial codes of conduct, potential violations of the law and a pattern of corruption.”

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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 .