District judge rules against Legislature in judicial subpoena case

By: - October 7, 2021 3:25 pm

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

A Lewis and Clark County District judge has come to the same decision as the Montana Supreme Court with a ruling on Wednesday that the Republican-led Legislature inappropriately issued its investigative subpoenas to try and obtain judicial records from high court members.

“The legislature’s authority remains subject to judicial oversight, particularly when those it ‘investigates’ are subjected to unlawful document subpoenas. Such judicial oversight involves the balance of powers between the judicial branch and the legislative branch as well as the executive branch,” District Court Judge Michael McMahon wrote in his ruling.

Supreme Court Justice Jim Rice had fought the subpoenas and argued the Legislature did not have the power to issue April’s flurry of demands. While McMahon sided with Rice in saying the Legislature did not have the power to issue all the subpoenas, he did not grant Rice’s request to quash future legislative subpoenas.

“In this regard, this Court finds that Justice Rice has ‘put the cart before the horse’ in requesting such ‘hypothetical’ declaratory relief,” McMahon wrote.

In a statement on the ruling, Rice defended his actions.

“While none of my emails or communications were improper or inappropriate, I challenged the subpoena in court to defend my office from an unlawful attack, to uphold the integrity of our institutions and constitutional system of separation of powers, and to protect the personal communications of judges,” he wrote. He continued, “today, those principles have been vindicated by the Court, and this decision will provide guidance for proper interactions between the Legislative and Judicial branches in the future.”

McMahon’s ruling against the Legislature is the latest court decision in the inter-branch conflict going on for months between the Legislature and judiciary over accusations from legislative leadership and that members of the judiciary were hiding or deleting public information that would show they were prejudging legislation that may come before them.  At the center of the drama was a poll conducted by the Montana Judges Association that gauged how judges across the state felt about pending legislation — specifically Senate Bill 140, which changed how judicial vacancies are filled in the form.

In a late April letter to Republican leadership, Chief Justice Mike McGrath defended the judiciary’s behavior surrounding the poll. “The branch has an obligation to inform the Legislature as to how proposed legislation affects branch operations. There has been no misuse of state resources.”

Republican lawmakers used the poll to allege bias and misconduct among members of the judicial branch and accused the Supreme Court Administrator of deleting emails related to the polls. The alleged scandal prompted the Legislature to form the Select Committee on Judicial Accountability and Transparency.

In a late April letter to Republican leadership, Chief Justice Mike McGrath defended the judiciary’s behavior. “The branch has an obligation to inform the Legislature as to how proposed legislation affects branch operations. There has been no misuse of state resources.”

“The select committee will continue seeking additional information from the judicial branch and working to fix ethical problems within the judiciary,” said  Senate Republican Spokesman Kyle Schmauch, about Wednesday’s ruling. “The public record emails obtained through the subpoena remain in the possession of the Legislature’s attorneys at the Department of Justice while the attorneys consider an appeal to the U.S. Supreme Court. McLaughlin’s attorney was informed of that a couple weeks ago.”

In his ruling, McMahon said it is out of the constitutional scope of the Legislature to investigate claims of judicial misconduct.

“The subpoena interferes with the Montana Judicial Standards Commission Constitutional authority and exceeds the Legislature’s investigator authority as to alleged judicial misconduct,” McMahon wrote, referring to a July decision by the high court also ruling against the subpoena use.

In its ruling, the supreme court wrote the subpoenas were out of bounds as they were “far broader than necessary,” seek information that the Legislature could get elsewhere, don’t serve a valid legislative purpose and jeopardize the constitutional rights of other parties.

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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 .

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