AG to U.S. Supreme Court: Montana courts’ ‘self-dealing’ unprecedented in U.S. history

Gianforte urges court to clarify its position on judges commenting on current events

By: - January 11, 2022 12:36 pm

Workers shovel snow away from the U.S. Supreme Court building on Jan. 7, 2022 (Photo by Ariana Figueroa of States Newsroom)

Claiming that “judicial self-dealing on this scale might be unprecedented in the nation’s history,” the Montana Attorney General’s office has filed an appeal to the United States Supreme Court seeking a review of a state Supreme Court decision that declared subpoenas by the Legislature void, and ruled emails obtained through the executive branch were improper.

The appeal to the nation’s highest is part of an ongoing dispute that pits the Legislature and the governor, represented by the state attorney general Austin Knudsen, against the judiciary. It began when the Legislature wanted access to judges’ emails regarding a judges association poll on a controversial measure that ultimately replaced a judicial nominating committee with the governor appointing judges.

Gianforte has also filed an amicus curiae, a “friend of the court,” brief with the Supreme Court in support of Knudsen’s appeal.

The dispute boiled over when the Montana Legislature issued a subpoena to Department of Administration to obtain email records from the state’s court administrator, Beth McLaughlin. The DOA, which is part of the administrative branch, manages the state’s email system. McLaughlin then filed an emergency motion at the Montana Supreme Court to stop the emails from being produced, citing concerns about court and personnel confidentiality. That set off a series of motions, subpoenas and court decisions that culminated in the high court ruling the subpoenas amounted to legislative overreach and ordered the emails to be returned.

The brief filed by Knudsen’s office paints the Legislature as the victim of judicial abuse and claims it was dragged into court when it had originally wanted to negotiate the release of the records. However, the Legislature originally did not send the subpoena to McLaughlin, instead issuing it to Misty Ann Giles, the DOA director, and sending the order to her, demanding thousands of emails to be turned over on a Saturday, with less than 48 hours’ notice. That prompted McLaughlin’s emergency appeal and set off a series of legal challenges, which have now arrived in Washington, D.C.

Knudsen argues that because the emails potentially implicated the justices on the Montana Supreme Court for pre-judging legislation being debated in the Legislature, they should have recused themselves because of the appearance of bias. Moreover, the brief raises the question whether any judge in Montana could have adjudicated the case. The Attorney General’s Office also argued that the decision violated the lawmakers’ due process rights because they could not get a fair trail, and it claims that the sitting justices ruled in their favor to avoid any more embarrassing email leaks.

“The Montana Supreme Court trounced nearly every principle of due process this court has ever enunciated,” the Attorney General’s brief said. “But due process rules ensure that no part is left to the gentle mercies of a judge he’s fighting against – particularly when the dispute arises from the judge’s alleged misconduct.”

McLaughlin, who is represented by Missoula attorney Randy Cox, declined comment on Knudsen or Gianforte’s court filings, but said a response brief will be filed with the U.S. Supreme Court by Feb. 9.

Gianforte’s filing

On Tuesday, Gianforte’s office also filed an amicus brief with the Supreme Court in support of Knudsen. Through his attorney, Anita Milanovich, Gianforte characterizes his interest in the case as ensuring the distinct roles of each branch of government.

Furthermore, he asks the Supreme Court to harmonize or clarify various federal court rulings about when and how judges can comment on political or current events.

“Lack of clarity in federal law has allowed the Montana judiciary to lose sight of its obligations by engaging in prejudgment of proposed legislation, violating fundamental due process protections,” Milanovich wrote.

Citing rulings from the U.S. Ninth Circuit of Appeals, it “concluded that judicial candidates could be constitutionally prohibited from a variety of political speech to preserve public confidence in the judiciary.”

That question is central to whether the Montana Judges Association’s longstanding practice of polling judges on pending legislation during the legislative sessions is illegal, amounting to pre-judging issues that could come before the court.

“Any district court decision involving new legislation may cause a litigant to wonder if the outcome was independently arrived at,” the brief said.

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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.