State Supreme Court declines to ‘moot’ legislative subpoena case

HELENA — The Montana Supreme Court on Tuesday unanimously rejected the state Legislature’s request to throw out its case regarding legislative subpoena power. The order denying the motion to “moot” the litigation adds another twist to the months-long standoff over separation of powers between Montana’s branches of government.

The court’s opinion comes in response to an announcement from Republican lawmakers last week saying the Legislature would withdraw the wide-ranging subpoenas it had issued in April for records and communications of Supreme Court justices and Court Administrator Beth McLaughlin. 

The Legislature explained that decision as an effort to turn down the heat in the conflict with the judiciary — a clash that has been advanced by fiery communications from its counsel in the attorney general’s office, such as a refusal to abide by a court order and motions seeking the recusal of all Supreme Court justices from the case, McLaughlin v. Legislature. 

McLaughlin, through an attorney, opposed the Legislature’s motion to moot the case last week, arguing that the outcome of the dispute is highly relevant to the public interest and critical for future scenarios in which the Legislature might test its subpoena powers in unprecedented ways.

In its Tuesday order, the court agreed with the plaintiff’s arguments, stating that the Legislature’s withdrawal of the subpoenas could not undo the fact that lawmakers had successfully obtained McLaughlin’s emails after appealing to another state agency, the Department of Administration, which released a flood of communications without a procedural review by the judicial branch. 

“The Legislature has not made this Court aware of any effort to return, destroy, account for, or otherwise address the thousands of unredacted Judicial Branch emails that it previously obtained, without judicial oversight or procedural protections, through the DOA,” the court’s opinion said.

The ruling also referenced arguments made by McLaughlin’s attorney about the release of her records, saying, “it is ‘uncertain how that bell can be un-rung,’ once the information has been released.” 

In an emailed statement Tuesday afternoon, the chair of the Legislature’s Special Select Committee on Judicial Accountability and Transparency called the court’s order “extraordinary.”

“We withdrew the subpoenas so we could move forward and negotiate this matter with a coequal branch of government, however, the Court has decided to make another unprecedented move by ruling on a nonexistent subpoena,” said Sen. Greg Hertz, R-Polson. “The Court continues to deepen its massive conflict of interest in this case by once again abandoning normal procedure,” he said, suggesting that the court’s order is an attempt to “hide” public records.

The justices’ ruling specifically cited the Legislature’s early actions as justification for why the case continued to be relevant to the public’s interest. 

“The Legislature’s decision to act first, and deal with legal ramifications later, does not allow it to declare the issue moot when it determines that it has achieved what it wishes,” the court wrote, adding that “the issue has not ceased to exist as an actual controversy.”

The court also noted that the Legislature has not said it will stop issuing similar subpoenas in the future, adding that lawmakers had decided in April to re-issue a subpoena to McLaughlin and seek documents from all seven justices even after the court had quashed its original subpoena. 

“The Legislature has not committed itself to refraining from resuming the challenged conduct if its motion were granted,” the court wrote. “The gravity of the problem is once again magnified by the fact that the Legislature already has in its possession thousands of unredacted Judicial Branch emails.”

Responding to a request for comment, a spokesman for the attorney general’s office cast the court’s ruling as an effort to intensify a conflict with the Legislature. 

“It’s striking that the Supreme Court is escalating the situation while the legislature continues to seek negotiation for the release of public records,” Kyler Nerison said. “There is no reality in which the Supreme Court justices can reasonably claim to be unbiased judges in a case involving their own employee and communications — it simply defies common sense. Every Montanan can see the clear conflict of interest this ruling presents for the justices.”

Asked to react to the Tuesday ruling, attorney for McLaughlin Randy Cox declined to comment at length, saying he found the court’s opinion “quite clear.”

The court has previously said it intends to rule on the McLaughlin case without oral arguments from either side, instead adjudicating the case based on existing filings. The Tuesday order did not elaborate on a future timeline.