Montana AG mulling taking email case to the U.S. Supreme Court

Chances of the nation’s highest court taking the case unlikely, experts, statistics say

By: - September 30, 2021 5:15 pm

The U.S. Supreme Court is shown June 21, 2021 in Washington, DC. (Photo by Win McNamee/Getty Images)

More than three weeks after the Montana Supreme Court ordered the return of thousands of emails that were obtained through legislative subpoenas, those emails still remain unreturned because the state’s attorney general appears to be mulling over an appeal to the United States Supreme Court.

Randy Cox, attorney for courts administrator Beth McLaughlin, confirmed Wednesday that the emails have still not been returned, despite an order to do so, and said that attorneys in Attorney General Austin Knudsen’s office were likely to file with the nation’s highest court.

“The Attorney General’s office has stated they are likely to file an appeal to the United States Supreme Court and, accordingly, neither the Attorney General nor the Legislature plan to return the emails as they were ordered to do by the Montana Supreme Court,” said Cox in an email.

The Attorney General’s Office responded on Thursday to the Daily Montana.

“We won’t be participating in your blog,” said Emilee Cantrell, spokeswoman for Attorney General Austin Knudsen.

Two separate issues exist in the case. The first is whether the federal court would hear the case that has pitted the state’s judiciary against the legislature and executive branches. The second issue is the return of thousands of documents that were taken via legislative subpoenas that the court later ruled did not serve a legitimate purpose.

A long road to Washington, D.C.

It’s not necessarily unusual for an appeal from Montana – or any state – to go to the United States Supreme Court. However, it’s rare that court hears such a case, said Anthony Johnstone, a professor of law at the Alexander Blewett III School of Law at the University of Montana. Typically, the high court hears less than 5 percent of cases that get appealed.

Moreover, the case would have to be refocused on a violation of U.S. Constitutional law. Until now, the court case and pleadings in the state’s Supreme Court have been framed a separation of powers issue within state law and the how those were delegated through the state constitution. Typically, the U.S. Supreme Court would have no opinion on a state constitutional issue like that, Johnstone said.

Likely, if the Attorney General files an appeal at the United States Supreme Court level, it would center on the issue of due process, or whether the Legislature was able to get a fair hearing at the Montana Supreme Court.

“If the court sees the case as properly presenting federal due process rights, that would be grounds to consider the case,” Johnstone said. “Typically the court is reluctant to interfere in a state’s judicial process.”

Also, with the high court listing more conservative with the appointment of three new Supreme Court justices, Johnstone said it’s hard to predict how the U.S. Supreme Court may view this appeal.

“It has typically been that conservative justices are the most reluctant to disrupt state courts,” Johnstone said. “But it could also cut the other way because there are so few cases in Montana, and you don’t have a baseline. The court also looks at bang-for-the-buck – those are cases that rise repeatedly and are resolved inconsistently, which would argue the other way.”

Emails returned

The second issue is returning McLaughlin’s email. Previously, the Montana Supreme Court decided the email issue and ordered as many as 5,000 emails returned. However, the Attorney General’s Office asked Cox and McLaughlin if the emails could remain in its possession while it petitioned the court for a rehearing. Cox didn’t object.

However, the Montana Supreme Court denied the rehearing motion and ordered the emails returned. It’s been three weeks since that order and nothing has happened.

Johnstone said that either the Attorney General’s office would have to ask the U.S. Supreme Court for an injunction staying the order or ask the Montana Supreme Court for a similar order while it makes an appeal. Neither has happened.

Editor’s note: This story was update at 5:55 p.m., to reflect comments made by a spokeswoman for Knudsen.

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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.