The newest twist in the fight between the Legislature and the judiciary

HELENA — In the ongoing and increasingly tense conflict between separate branches of Montana’s government, the state Supreme Court Wednesday refused to recuse all sitting justices from a case concerning the scope of the Legislature’s subpoena powers, after the Republican-held body sought a sweeping records request in April for judicial branch communications. 

While the order does not conclude the case stemming from a legislative subpoena issued to Court Administrator Beth McLaughlin, the often sharply worded ruling sheds some light on how the court is evaluating the unprecedented steps taken by the Legislature and its counsel, actions it said sought to “manufacture a conflict” between separate branches of government.

The opinion, written by Justice Laurie McKinnon on behalf of the unanimous court, rejected the motion requesting that all justices remove themselves from the case involving the Legislature’s subpoena powers. The attorney general’s office argued in late April that it was “bewilderingly obvious” the court could not be impartial in the matter concerning its court administrator and subsequent legislative subpoenas for the justices’ own emails. 

“[U]nder any realistic appraisal of human nature, it is entirely unreasonable for the justices to declare their freedom from personal bias and prejudice when ruling on the proper scope of subpoenas the Legislature issued to them,” the attorney general’s motion states.

The justices, who appeared April 19 before the separate investigative committee created by the Legislature, had previously explained it would have been improper to abide by those subpoenas given the preexisting case before the court. One justice, Jim Rice, took his subpoena to District Court for resolution, where it was temporarily stayed. That case is ongoing.

Though McKinnon’s ruling Wednesday pertained to whether the justices would continue to arbitrate the case, her opinion broadly emphasized the court’s independence from the Legislature’s efforts to dictate recusals and weigh in on conflicts of interest. It also scrutinized the Legislature and the attorney general pledging to defy a court order, investigating alleged misconduct within the judiciary and issuing individual subpoenas to all seven Supreme Court justices. 

“[C]onspicuously absent from the Legislature’s motion is any specific allegation or assertion of actual bias on the part of a justice,” McKinnon wrote. “The Legislature has not alleged that a member of this court has an actual bias, prejudice, or is otherwise unable to adjudicate these proceedings fairly and impartially.” She added that if all of the justices were compromised mainly by the fact that they are part of the judicial branch, no judges in Montana would be qualified to adjudicate the case. 

“The Legislature’s blanket request to disqualify all members of this court appears directed to disrupt the normal process of a tribunal whose function is to adjudicate the underlying dispute consistent with the law, the Constitution, and due process,” the opinion states.

The Legislature first sought judicial branch communications due to a lawsuit over Senate Bill 140, which gives the governor direct appointment power for temporary court vacancies. Chief Justice Mike McGrath recused himself from that case after asking Gov. Gianforte, on behalf of the judicial branch, to not support the bill. McGrath’s replacement, District Judge Kurt Krueger, was later discovered to have also opposed the bill in a poll for the Montana Judges Association coordinated by McLaughlin. Citing the court’s lack of email retention policy and the need to regularly delete emails to accommodate limited server space, McLaughlin has conceded she did not retain comprehensive records of that poll. The Supreme Court justices, as McKinnon reiterated Wednesday, have said they did not participate in the MJA survey. 

The attorney general’s office has not yet indicated its next move in the conflict. In a statement Wednesday, Sen. Greg Hertz, R-Polson, who chairs the Legislature’s Select Committee on Judicial Accountability and Transparency, criticized the court as “twisting itself in knots” in Wednesday’s ruling.

“The court claims it doesn’t have a conflict of interest and the justices don’t need to disqualify themselves while at the same time saying every judge has a conflict of interest in the case and that ‘where all judges are disqualified, none are disqualified,’” Hertz said, repeating accusations that the judicial branch improperly used state resources in polling judges and wrongly pre-judged legislation that could be litigated. “[T]he Montana Supreme Court can’t keep its story straight and continues to sink itself into a deeper and deeper conflict of interest.”

Observers of the unprecedented inter-branch feud said that, at its core, the court’s most recent ruling indicates its unwillingness to allow another branch of government to intervene in its proceedings.

“If we follow this where it leads, if you ask where does this stop, that’s where the court makes these important points,” said Anthony Johnstone, constitutional law professor at the University of Montana. “Just as the court couldn’t require the Montana Legislature to set aside its duties because of its conflicts of interest, the Legislature will not succeed in asking the court to set aside its duties because of alleged conflicts of interest, broadly defined.” 

“The branches don’t have to agree with each other,” Johnstone said. “But we need each of them acting independently if they’re going to preserve the rule of law.”

This story was updated May 15 to correct Anthony Johnstone’s quote in the final paragraph. Johnstone said “…if they’re going to preserve the rule of law,” not “if they’re going to preserve the law,” as was originally transcribed.