Attorney General, lawmakers: Let us have our day in court

Petition to rehear subpoena case says Montana government is ‘on the brink’

By: and - August 12, 2021 8:53 am

An exterior picture of the Joseph P. Mazurek Justice Building in Helena which houses the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

Montana’s Attorney General petitioned the state’s highest court this week to reconsider a unanimous order enjoining the Legislature from its quest to obtain a trove of judicial records as part of an inter-branch conflict stemming from the passage of legislation this session overhauling the process for filling vacancies on the court.

In a brief filed Wednesday, Attorney General Austin Knudsen and his lieutenant, Kristin Hansen, asked the court for a rehearing, asserting the court has misread case law and made faulty arguments in a July ruling that said the Legislature overstepped its authority in issuing a subpoena for judicial communications from Supreme Court administrator Beth McLaughlin

The attorney general’s filing accuses the court of declining to enter into negotiations with the Legislature over release of the documents and asks the court to suspend its rules and allow oral arguments in the case in order to allow the Legislature to “have its day in court.”

“The Legislature seeks public records. The Court holds them,” the filing reads. “Their disclosure does not have to be rife with animosity.”

McLaughlin’s attorney, Randy J. Cox, told the Daily Montanan that he was still studying the brief, and would reserve comment for their response brief.

In its July ruling, the Montana Supreme Court found unanimously that those subpoenas “sought information not related to a valid legislative purpose, information that is confidential by law, and information in which third parties have a constitutionally protected individual privacy interest,” according to a synopsis published by the court. In concurring opinions, Justices Laurie McKinnon and Dirk Sandefur excoriated the Legislature, calling out “an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch.”

The ruling enjoined the Legislature from pursuing the subpoenas further, the Department of Administration from complying with the subpoenas, and ordered legislative attorneys to return what documents they did receive from their initial request.

On Tuesday, preceding the brief’s filing, Knudsen asked to exceed a 2,500-word limit on the petition in order “to fully inform the Court for rehearing,” a request the court granted, while warning his office that Montana law only allows “very limited criteria” in petitions for rehearing, including overlooking a material fact, or citing specifically where a decision conflicts with an existing statute.

Wednesday’s 26-page filing argues that the high court and the unanimous decision misread a recent Supreme Court case regarding former President Donald J. Trump’s tax returns and “implores the court to disengage from pitched battle and reengage as a necessary party to fruitful negotiation.”

Knudsen and Hansen argue that when the Supreme Court considered the case of Trump v. Mazars – a dispute about releasing the former president’s tax returns to a Congressional probe – that it was in error because “the Supreme Court wasn’t party to the case.”

Additionally, they say that the court’s order to return the subpoenaed documents “poses equally serious enforceability and constitutionality problems” as some of the emails were obtained by reporters.

The petition also accuses the court of being unwilling to work together with the Legislature to find a resolution. That dispute originally began when the Senate Judiciary Committee issued a subpoena to Department of Administrator Director Misty Ann Giles demanding several months’ worth of McLaughlin’s emails, a request that was partially fulfilled before the court stepped in the way.

“Out of respect for the separation of power, the Legislature has consistently demanded this matter be resolved through negotiation not adjudication,” the new filing said.

On that point, both sides seem to agree, albeit in from different perspectives. Previously, Cox said a request for the email should have come through McLaughlin so that the courts could have culled email that contained confidential information. Such requests are standard, Cox told the Daily Montanan previously. However, when the Senate Judiciary issued subpoenas, it gave Giles just a little more than 24 hours, did not notify McLaughlin of the request, and demanded thousands of emails be turned over on a Saturday afternoon, which, in turn, led to the court administrator to seek an emergency injunction during a weekend. The brief claims the Supreme Court intervened to save the judiciary embarrassment, while McLaughlin and Cox said they had no other choice in order to protect confidential information in the email, including personnel matters and sensitive information about deliberations of specific cases, both generally protect by Montana law.

Investigating malfeasance

The new petition also said the court failed to understand and appreciate the lawmakers’ role in investigating judicial malfeasance. The lawmakers claim that McLaughlin’s role in coordinating informal polls among sitting judges regarding pending legislation may have violated state law, and the attorney general’s office accused the Supreme Court of dismissing the concerns in order to spare the judiciary embarrassment.

Both McLaughlin and the justices have countered that the Montana Judges Association has polled its members for years and has coordinated it through McLaughlin. Moreover, it has also said state employees are allowed to lobby and give input on pending legislation that affects government administration.

But the attorney general’s office argues that it should have the power to investigate the extent to which those opinions could show judicial bias – an argument not new to the case, nor necessarily disputed by the justices. Instead, the original ruling focused on the necessity and limits of a judicial subpoena.

The petition claims the Legislature cannot get a fair trial from the court.

“Issuing an expansive, disarming opinion against this backdrop confirms the Legislature’s consistent argument: It cannot obtain due process from this court under these circumstances,” the petition said.

Knudsen’s office argues that lawmakers should be able to see the extent of lobbying so that it can correct any gaps by passing responsive legislation.

The petition also challenges the Supreme Court ruling, reminding the court that the power to sanction judges isn’t confined to the Judicial Standards Commission.

“The Legislature moreover may impeach and remove judicial officers without regard to the JSC,” the petition said.

In a footnote toward the end of the filing, the Attorney General’s Office asks the court to suspend its own rules and order an oral hearing on the entire matter, “if [the] court is determined to adjudicate this dispute to resolution, it should give the Legislature its day in court.”

In analogy and wording that hits a crescendo in its conclusion, Knudsen and Hansen paint a dire picture of government in Montana.

“The Legislature … encourages the court to take this last chance to defuse the constitutional tinder box it has kindled,” the petition said. “Montanans are sensible and can see plainly what happened here. Judicial misconduct or embarrassing malfeasance was revealed to the public and this court seems bent to put Jack back in the box.

“…When one branch of government throws the balance so violently out of kilter as the court does here, our institutions — including the court — are on the brink.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.

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