HELENA — In a protracted opinion that was months in the making, the Montana Supreme Court on Wednesday ruled against the Republican-led Legislature’s campaign to subpoena documents and communications from the judicial branch earlier this year, saying the subpoenas “exceed the scope of legislative authority” and were “impermissibly overbroad.”
The 36-page ruling, penned by Justice Beth Baker, explained the legal missteps of the Legislature’s subpoena efforts and ordered lawmakers to return the thousands of judicial documents it obtained via subpoena through the Department of Administration. Though the Legislature in June withdrew its outstanding subpoenas, the court’s order also prohibited further DOA compliance with the Legislature’s effort.
The court’s highly anticipated decision brings closure to a key aspect of the inter-branch brawl that has rocked Montana politics since April, when McLaughlin asked the Supreme Court to block the Legislature’s subpoena of her records and communications. The often rancorous dispute, unparalleled in recent memory, spiralled out of lawmakers’ allegations that Montana judges acted improperly by expressing opinions on pending legislation. Republican lawmakers also took issue with Court Administrator Beth McLaughlin’s role in coordinating polls of district court judges on behalf of the Montana Judges Association, which represents the judicial branch during the legislative session, and McLaughlin’s failure to retain comprehensive email records of those polls.
The Legislature has aggressively fought McLaughlin’s lawsuit over the last several months, employing legal tactics and communications that critics have described as shocking and disrespectful to the judiciary. Through Attorney General Austin Knudsen’s office, lawmakers have repeatedly pushed for all of the Supreme Court justices to recuse themselves from the case, and sought to have the case dismissed entirely.
The motion to dismiss was most recently submitted after the Legislature announced it was withdrawing outstanding subpoenas against McLaughlin and individual justices, saying the withdrawal made the case moot. McLaughlin and her attorney disagreed, arguing that the dispute remained relevant to the public interest and required resolution. The Supreme Court in June said it would issue a ruling in the case.
In a statement through her attorney, McLaughlin said she is glad to have the case resolved.
“[Beth McLaughlin] takes her job very seriously. Part of that job is to respond to information requests and provide information to the Legislature,” said Randy Cox in an emailed statement. “But she has that obligation only when the request for information follows proper legal procedure. That did not happen here, and the Montana Supreme Court explained why.”
Republican Sen. Greg Hertz, who chairs the Legislature’s Select Committee on Judicial Accountability and Transparency, blasted the ruling as “poisoned” by the court’s “massive conflict of interest,” saying it represented “judicial activism at its worst.”
“This ruling is exactly what you’d expect to get from people acting as judges in their own case, protecting their own interests,” Hertz said in part of a longer statement. “Today, the Montana Supreme Court declared itself above reproach, and, potentially, above the law. The Legislature and our attorneys will continue to review this astounding ruling in more detail. We have even more work to do than we thought to ensure that Montana’s Judicial Branch is subject to the same transparency and accountability that governs the Executive and Legislative branches.”
LEGISLATURE’S POWERS ‘BROAD,’ BUT NOT UNLIMITED
The court’s order recognized the Legislature’s authority to issue subpoenas, but found that it must operate within established law and case precedent in addition to following protocols to protect privacy rights.
Montana law authorizes the Legislature to issue subpoenas that “require the attendance of any witness” and states that witnesses “cannot refuse to testify to any fact or to produce any paper,” the court wrote, noting that the law does not expressly authorize legislators to subpoena documents.
The court also referenced a recent federal court case, Trump v. Mazars, to clarify the extent of the Legislature’s subpoena powers. There, the United State Supreme Court found that congressional investigations must have a “valid legislative purpose” and that Congress, because it does not have the same constitutional power granted to the judiciary, cannot pursue inquiries that are “exclusively the concern of the Judiciary.”
Based on that precedent, Montana’s Supreme Court found that the Legislature’s stated reasons for issuing the subpoenas, including investigation of the judiciary’s email retention policy, did not pass muster, calling them “problematic” and “troubling.”
“Investigating potential violation of unspecified state law or policy is not a valid legislative purpose to justify the subpoenas,” the court wrote. The Legislature’s stated purpose, the decision said, also “fails to show that compelling production of thousands of unredacted Judicial Branch messages, rather than undertaking other forms of inquiry, will advance its consideration of legislation on the matter of a judicial records retention policy.”
Similarly, the court rejected the Legislature’s argument that it subpoenaed McLaughlin to investigate whether she improperly engaged in lobbying using state time and resources.
“As the liaison between the Judicial Branch and the Legislature, the Court Administrator acts within her job duties when she coordinates contacts between district court judges and legislators or conducts a poll to allow district judges, through the Montana Judges Association, to provide the Legislature with relevant information regarding how proposed legislation will affect Judicial Branch functions,” the decision read.
Finally, the court rejected the argument that the subpoenas were necessary to investigate possible bias among judges. That investigative authority, the ruling explained, falls to the Judicial Standards Commission, as laid out by the Montana Constitution.
“To maintain the independence of the judiciary, the Constitution commits the oversight of judges to the judicial branch of government,” the decision said.
In addition to failing to establish a legitimate purpose, the court said, lawmakers’ subpoenas were overly broad, risking the disclosure of personnel issues, medical information and other protected communication. When the Legislature sought and received the documents from the Department of Administration rather than from the judicial branch, the court pointed out, DOA “failed to consider the significant confidentiality and privacy interests” at stake in releasing McLaughlin’s emails to lawmakers.
“These basic safeguards guarantee minimum standards of due process and should have been understood and respected by both the legislative and executive branch officials involved,” the court wrote.
CONCURRING OPINIONS AND CRITIQUE
In two separate concurring opinions, Justices Laurie McKinnon and Dirk Sandefur supported the court’s final ruling, but offered their own legal observations and disagreements.
McKinnon, generally considered a member of the court’s more conservative wing, issued an extensive historical analysis of how the separation of powers is defined in constitutional law and defended the judiciary’s authority to investigate and manage its own operations.
“The constitutional doctrine of separation of powers provides that, while vested with the power to make laws, the Legislature cannot also execute and adjudicate them,” McKinnon wrote, referencing case law dating back to eighteenth century England.
“Never has a legislative branch of government presumed, until today, that its investigative authority to summon witnesses and documents was unrestrained, plenary, and unreviewable by the judicial branch for violations of fundamental rights and privileges,” she wrote.
Referencing the framers of the U.S. Constitution’s intent to create an independent judiciary, McKinnon also said that branches of government have been designed to collaborate and work reciprocally.
“When one branch fails to afford proper deference to the authority and expertise of a coequal branch, the goal of securing a ‘workable government’ becomes elusive,” McKinnon said.
Justice Sandefur, in his concurring opinion, aggressively rejected the Legislature’s stated reasons for issuing the subpoenas in the first place, as well as the steps lawmakers took to defend them, calling the inter-branch dispute a “recklessly ginned-up ‘crisis’” with a “far more sinister motive.”
“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,” Sandefur wrote, framing the Republican-led effort as a threat to “the continued survival and vitality of our constitutional democracy.”
“Though undeniable, the fleeting mandate and accompanying delirium of unitary control of the two political branches of government is no warrant or excuse for reckless disregard of the sacred oath and duty of all elected officials to ‘support, protect, and defend the constitution’ of this State,” Sandefur concluded.
Hours after the court’s opinion was released, a spokesman for Attorney General Knudsen reiterated criticism of the judiciary that has been trumpeted by Republican officials for several months.
“As required by the Montana Code of Judicial Conduct and requested by the legislature, the justices should have recused themselves because of their undeniable conflict of interest,” Kyler Nerison wrote in an emailed statement. “Yet, in a surprise to no one, they once again issued a self-serving ruling to protect their own employee and hide their own public records. The Montana Supreme Court’s unethical behavior in this case is embarrassing for the state and shameful.”
Cox, McLaughlin’s attorney, fired back against Republican depictions of the court as self-interested in an emailed statement.
“The Legislature did not lose its legal arguments because the Court is predisposed against it or is engaged in some sort of nefarious self-protection. The Legislature lost every legal issue because its legal positions were, simply, wrong,” Cox wrote. “Courts are not partisan institutions. And courts sometimes have the obligation to tell other branches they have overstepped their bounds, as the Legislature did here. As distatestful as that task may be, separation of powers is a critical and long-established fundamental rule of law in this country for which all Montanans should be grateful.”
A spokesman for Senate Republicans said Wednesday that the Legislature and its counsel would continue reviewing the decision in the coming days. The Legislature’s Special Committee on Judicial Accountability, which is funded to operate throughout the interim, has not yet scheduled its next public meeting.
A trio of 2021 election administration laws were declared unconstitutional last week. Judge Michael Moses’ order has a lot to say about where the laws came from, and why he found them illegal.
In a Wednesday appearance billed as the first in a series of events announcing policy priorities for next year’s legislative session, Gov. Greg Gianforte said he wants to raise the exemption threshold for Montana’s business equipment tax.
This fall, 20 school districts across the state are exploring a new approach to standardized testing. The Office of Public Instruction-led pilot, backed by $3 million in federal funding, seeks to replace Montana’s year-end exams with incremental tests throughout the school year.