Legislative GOP asks U.S. Supreme Court for review of subpoena power decision

Majority leadership and AG’s office say state Supreme Court violated due process rights

By: - December 7, 2021 4:03 pm

The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on September 28, 2020 in Washington, DC.. (Photo by Al Drago/Getty Images)

The Montana Legislature and attorney general are looking for the U.S. Supreme Court to weigh in on a unanimous state court ruling that found a series of legislative subpoenas for judicial records were improper and overbroad, an expected though not guaranteed escalation in an inter-branch legal drama that consumed much of the last legislative session.

In a petition filed with the U.S. Supreme Court on Monday, the Montana Attorney General’s Office — which is representing the Legislature in the matter — argues that the Montana Supreme Court’s ruling on the legislative subpoenas violated the due process clause of the 14th Amendment. The court’s seven justices had declined to recuse themselves from the case even as the state asserted they had a conflict of interest due to the nature of the underlying document requests, which sought information from each justice and from Supreme Court Administrator Beth McLaughlin.

The state supreme court’s decisions in the subpoena case, attorneys from the state Department of Justice wrote, “made a mockery of this Court’s well-settled proscription that ‘no man can be a judge in his own case’.”

“The Justices below harbored direct interests in the outcome of (the case),” the petition says later. “Under any objective standard, the court’s actions presented not only an unconstitutional potential, but a guarantee, of bias.”

The U.S. Supreme Court only takes up about 5 percent of the petitions it receives, said Anthony Johnstone, a constitutional law professor at the University of Montana, so there’s no guarantee the request moves forward. The justices on the state court denied the Legislature’s request for disqualification in May, and handed down their unanimous ruling on the illegality of the legislative subpoenas in July. In September, the court denied a petition from the Legislature and Attorney General to rehear the case.

McLaughlin, who requested in April that the court quash a legislative subpoena for thousands of pages of judicial documents, said through her attorney Tuesday that she respects the court system and rule of law and looks forward to a ruling from the high court.

“We respect court orders and look forward to the U.S. Supreme Court’s resolution of the first issue — whether it will even take up the Legislature’s petition,” said a statement from McLaughlin and attorney Randy Cox.

McLaughlin Cert Petition MTFINAL

The subpoena conflict has its origins in a separate legal challenge to Senate Bill 140, a law passed this session that abolished the Judicial Nominating Committee in favor of direct appointments to judicial vacancies by the governor.

A filing in the case from the Attorney General’s Office showed that McLaughlin had sent out an email poll to judges in the state — including the seven supreme court justices, though they’ve denied responding to the poll — seeking feedback on SB140 as part of the lobbying efforts of the Montana Judges Association, a private organization that conducts judicial education programs and weighs in on bills that could affect judicial operations. The Legislature  asked for the full series of responses to the poll from McLaughlin, but McLaughlin said she deleted many of the emails.

This led to a cascading series of subpoenas from lawmakers to McLaughlin and eventually even to the sitting members of the state Supreme Court, searching for any judicial records pertaining to legislation from the 2021 session that could come before the court — Republican lawmakers and the AG alleged those documents could show that judges were “pre-judging” the outcome of legal challenges to bills. McLaughlin sought to halt those document requests through the courts, arguing that the files could contain confidential legal information, an effort that led to a separate case that focused on the scope of the legislative subpoenas.

The court would rule in favor of SB140 in the original proceeding, but it denied the Legislature’s request to disqualify each of the justices and separately declared the subpoenas improper, holding that the body was seeking to act as a law enforcement body rather than a legislative one, among other concerns. Some of the justices, for instance, accused lawmakers and the attorney general’s office of ginning up a false conflict of interest by issuing subpoenas to the judges as part of a political maneuver to assert control over the judiciary.

“Beyond the smoke-screen of the catchy but demonstrably false allegations leveled against the judiciary is an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch to conduct independent judicial review of legislative enactments for compliance with the supreme law of this state — the Montana Constitution,” wrote Justice Dirk Sandefur in a concurrence to the court’s ruling on the illegality of the subpoenas.

In the petition filed this week, the AG’s Office restates the core argument it’s made throughout this process — that it’s being denied access to a fair tribunal — but also pointed to recent rulings on due process that it says indicate some broader significance. For instance, the filing references Caperton v. A.T. Massey Coal Co., a case from West Virginia in which the U.S. Supreme Court held that the 14th Amendment requires judicial recusal in cases where “extreme facts” create a “probability of bias.”

Generally, however, the Supreme Court has only identified such concerns in the most extreme cases of conflict of interest, often related to campaign expenditures — as was the case in Caperton — said Johnstone, the law professor.

“And in the past, the Court, particularly its conservative justices, has been skeptical of federalizing judicial rules of conduct through the Fourteenth Amendment’s Due Process Clause,” he said. “It is also traditionally sensitive to state separation of powers concerns, which do not generally implicate federal constitutional law.”

The Legislature has also formed a special committee to investigate judicial lobbying practices and ostensibly to pursue legislation related to judicial bias, transparency and document retention. In a statement Tuesday, Sen. Greg Hertz, R-Polson, the committee’s chair, said the Legislature is committed to resolving these issues regardless of the high court’s decision.

“I hope we can have productive conversations with the judicial branch moving forward and enact reforms to ensure this type of situation never happens again,” Hertz said in a statement.

He told the Daily Montanan that the committee was keeping its options open, including a possible complaint to the Judicial Standards Commission — which the court itself has put forth as the proper venue for redress.

The legislative efforts in this matter have been led exclusively by Republicans. The Democratic minority has attacked the GOP’s push as an effort to undermine judicial independence and consolidate political control.

“Montanans expect their elected representatives to respect constitutional separation of powers, not attack the checks and balances that ensure our government is accountable to Montanans,” House and Senate Minority Leaders Kim Abbott, D-Helena, and Jill Cohenour, D-East Helena, said Tuesday in a statement.

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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.