HELENA — The Legislature on Tuesday announced it will withdraw all outstanding subpoenas issued against members of the judiciary over the past three months, a major reversal in the rancorous dispute that centered on whether the Legislature acted properly in seeking extensive records from Supreme Court justices and the court administrator. By withdrawing its subpoenas, the Legislature said, pending litigation between the Legislature and court administrator Beth McLaughlin becomes moot.
In a statement issued Tuesday evening, the head of the legislative committee investigating alleged judicial misconduct framed the decision as an effort to de-escalate the conflict between the governmental branches, which intensified after the Legislature began issuing subpoenas in April.
Sen. Greg Hertz, R-Polson, said the Supreme Court justices should not have been in the position of adjudicating the case at all, given that McLaughlin is a judicial branch employee and the Legislature was seeking records from the justices themselves.
“Until now, the Supreme Court justices were preparing to act as the judges of their own case,” Hertz said in a written statement. “Withdrawing the subpoenas gives the Court the opportunity to stop digging this hole.”
The motion to dismiss McLaughlin v. Legislature was filed early Wednesday morning.
“To be clear, the Legislature’s justified interests in the underlying matters, and in pursuing negotiations, remain,” the filing read. “But to the extent the pending subpoenas may have contributed to a stalemate between the parties, the Legislature is pleased to take the first step and remove that obstacle.”
Reached by phone after the Legislature’s announcement, the attorney representing McLaughlin said his client intends to oppose the motion to dismiss, arguing that the case deserves a ruling, given the likelihood of similar circumstances arising again.
“Our position is that the whole issue of the appropriate bounds and limitations on legislative subpoenas is really critical for the next Legislature and the one after that and the one after that,” said Randy Cox, a partner at the Boone Karlberg law firm.
“Because of the importance of the issue and because of the disruption that [the Legislature’s] original subpoenas have caused, we will ask that the court not dismiss the case,” Cox said, “but rather, decide it on the basis of the thorough briefing that is already in front of them. And then all parties, including us, including the Legislature and including the attorney general, can understand, and appreciate, and respect and abide by that decision.”
The subpoenas for records from McLaughlin and the Supreme Court justices came after Republican lawmakers learned in March that district court judges and Chief Justice Mike McGrath had expressed opinions about bills that involved or affected the judiciary. Some of those opinions were expressed in email exchanges that arose from polls conducted on behalf of the Montana Judges Association, which represents the judicial branch during the legislative session and advocates for the professional interests of its members.
One of the bills judges were polled on was Senate Bill 140, which dissolved the independent commission that vetted applicants for temporary court vacancies. The bill was later challenged in court, prompting McGrath to recuse himself from the case after having voiced his opposition to Gov. Greg Gianforte. District Court Judge Kurt Krueger was selected as his replacement, but soon recused himself when emails showed he had opposed the bill in his response to the MJA poll.
Legislators quickly pursued full MJA poll and email communications from McLaughlin. She admitted that she had not retained comprehensive records of those communications, prompting lawmakers to issue a subpoena to the Department of Administration, which manages all state email servers. That subpoena generated the release of a cascade of judicial branch emails before the Supreme Court, in response to an emergency motion filed by McLaughlin, temporarily quashed the Legislature’s subpoena. The Legislature and the attorney general’s office then said they would not abide by the court’s order, defending the legislative subpoena as valid and enforceable.
In addition to its pursuit of McLaughin’s emails, the Legislature also issued subpoenas to all seven Supreme Court justices, seeking records and correspondence related to pending legislation. One member of the court, Justice Jim Rice, sought a review before a district court judge, who later blocked the subpoena on the grounds that it exceeded the Legislature’s constitutional authority. The remaining justices quashed their subpoenas, explaining they could not properly comply with the request with McLaughlin’s parallel case already before the court.
The Legislature, through the attorney general’s office, proceeded to file a motion in May for all Supreme Court Justices to recuse themselves — a move the Supreme Court rejected. In its explanation, the court said the Legislature’s decision to subpoena all justices was a “unilateral attempt to manufacture a conflict” and that the blanket recusal motion seemed intended to “disrupt the normal process of a tribunal.” The order prompted another barbed response from the attorney general’s office and further filings from the Legislature.
Before Wednesday, no filings had been introduced in McLaughlin’s case since early June. The court on Tuesday signalled it was prepared to consider the latest recusal motion from the Legislature after weeks of silence.
In its Tuesday evening release, the Legislature said it will continue to pursue public records from the judiciary through the Special Select Committee on Judicial Accountability and Transparency, which has received funding to operate through the interim.
“We’re still seeking documents and information that will provide more clarity on the issues identified in our committee’s Initial Report and inform legislative fixes to problems within our judicial system,” Hertz said, referencing the document drafted by Republican lawmakers toward the end of the session. “I look forward to working with committee members and the judicial branch as we continue this legislative investigation.”
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