Supreme Court ends subpoena fight, denying AG’s request for rehearing

Unanimous order says the Legislature raised no new points in its filing

By: - September 7, 2021 6:12 pm

The entrance to the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

In a shorter, but no less strident order, the Montana Supreme Court denied a petition by the state’s attorney general and legislature to rehear the case concerning subpoenas lawmakers issued to the Courts Administrator Beth McLaughlin requiring thousands of her emails.

Previously, the court ruled unanimously that the legislative subpoenas to investigate the judicial branch were too far reaching and didn’t serve a legitimate legislative purpose. At issue was the extent to which courts administrator Beth McLaughlin had been routinely polling judges on legislation proposed by lawmakers during the legislative session and her work with the Montana Judges Association. Lawmakers contend that surveying the judiciary during session about possible legislation was tantamount to bias and proved that the judiciary was not partial. Meanwhile, McLaughlin argued that lawmakers could have access to most of her email, but some was protected as confidential by state law as she asked the state’s highest court to intervene.

The decision issued Tuesday was nearly the last step in a protracted, tense case in which Montana Attorney General at one point told the court his office would not abide by its decisions because the judicial branch didn’t have authority over legislative subpoenas. Even though Knudsen’s team and the legislature was handed a stinging unanimous rebuke from the court, attorney general filed a petition asking for a rehearing.

The Supreme Court allowed Knudsen’s office to file the petition, but warned that court rules allow the petition only if the court “overlooked some fact material to the decision.”

In its opinion on Tuesday, the court denied the Attorney General’s petition and said that it had ignored the criteria for a rehearing.

“The Legislature has not shown that the court overlooked any material facts or issues,” the order said. “We conclude that the Legislature has not established grounds for rehearing. Instead, it mischaracterizes or misapprehends numerous provisions of the court’s decision and suggests rulings the court did not make.”

The justices dismissed the notion that the Legislature could not issue a subpoena or get information from a public official. It also balked at the idea the ruling closed off communication between the judiciary and any other branches of government.

“The opinion does not contain the ‘absolute rules’ the Legislature grafts on it,” the three-page order said in part.

Until now, the Legislature has kept copies of McLaughlin’s emails and previously attorneys had said they would not return them until the court had decided on the matter of rehearing. According to previous reports, that number may be in the thousands and some of the emails had already been disseminated to the press and other agencies. It’s unclear how those emails will be returned.

“A few weeks ago we asked the Attorney General and Legislature to comply with the court’s order and return the illegally obtained emails,” Cox told the Daily Montanan. “The Attorney General’s office declined because of their planned petition for rehearing.  Now that the petition has been denied, we will renew our request.  It is difficult to imagine that the Attorney General or Legislature will do anything other than comply with the Supreme Court’s order.”

Comments were not immediately available from Knudsen’s office on Tuesday afternoon.

“Today the Montana Supreme Court brought an end to litigation that started with the Legislature dramatically overstepping legal bounds.  In its rush to score political points, the Legislature ignored law, procedure and political norms.  Every journalist and most lawyers in the State of Montana knows how to get public records from public officials,” Cox said. “All the Legislature needed to do was follow the rules.  It never did.  The Legislature was wrong on the law and the Supreme Court told them so.  Simple as that.  None of this needed to happen.”

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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.