Legislature and AG ask U.S. Supreme Court to take separation of powers case

HELENA — Montana’s Republican legislative leadership on Monday requested that the U.S. Supreme Court take up the months-long case on lawmakers’ subpoena powers and the legal actions of sitting Montana Supreme Court justices, advancing a fraught political drama that has embroiled much of state government since spring.

The filing, submitted by Montana Attorney General Austin Knudsen, asks the nation’s highest court to consider the case under the premise that the Legislature’s right to due process, as outlined in the Fourteenth Amendment, has been infringed by recent Montana Supreme Court decisions. 

The petition accuses the state court of acting in its own self-interest when it halted the Legislature’s subpoenas for judicial branch documents and when the justices declined to recuse themselves from the case brought by their colleague, court administrator Beth McLaughlin.

Those decisions “made a mockery of [the U.S. Supreme] Court’s well-settled proscription that ‘no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome,’” the filing said. “In fact, the Montana Supreme Court did both.”

The Montana court ruled in July that the Legislature’s subpoenas seeking judicial records from McLaughlin and the state Department of Administration were “impermissibly overbroad” and exceeded the scope of the Legislature’s authority in regard to subpoena powers. The court in September declined the Legislature’s motion to reconsider the case, saying its original 36-page ruling was “clear and speaks for itself.”

While the Legislature’s request to the U.S. Supreme Court focuses on specific legal decisions made by the state court, the Montana Supreme Court is not a party to the case originally brought by McLaughlin in April. The court is therefore not expected to file a response to the Legislature’s Monday filing.

Randy Cox, the attorney representing McLaughlin, responded to the Legislature on Tuesday.

“As we have made clear all along, we respect the court system, the courts and the rule of law,” Cox said. “We respect court orders and look forward to the U.S. Supreme Court’s resolution of the first issue — whether it will even take up the Legislature’s petition.” 

University of Montana constitutional law professor Anthony Johnstone said Tuesday that the U.S. Supreme Court is highly selective in deciding which cases to consider out of the thousands of requests it receives every year. 

In the past, Johnstone said, the court “has been skeptical of federalizing judicial rules of conduct through the Fourteenth Amendment’s Due Process Clause. It is also traditionally sensitive to state separation of powers concerns, which do not generally implicate federal constitutional law,” Johnstone said. 

“So it is only in the most egregious instances of financial conflict of interest, including campaign expenditures, and criminal contempt proceedings, that the Supreme Court has identified federal due process concerns in judicial disqualification,” Johnstone continued. “The question presented in this case is whether the Montana Supreme Court’s decision in McLaughlin rises to that level.”

The Legislature’s Republican and Democratic leadership is divided on the direction of the case, with Republicans touting their motivation to interrogate possible shortcomings in the state’s judicial system. 

“It’s essential to all Montanans that we have independent, impartial courts that conduct fair hearings, follow due process, and abide by strong ethical and procedural standards. Our democratic republic depends on that,” said Sen. Greg Hertz, chair of the Legislature’s Special Select Committee on Judicial Accountability and Transparency, which was formed during the legislative session. 

Democrats on Tuesday released their own response to the announcement of the Legislature’s petition, accusing their colleagues of working to undermine the independence of the state’s judicial branch.

“Montanans expect their elected representatives to respect constitutional separation of powers, not attack the checks and balances that ensure our government is accountable to Montanans,” wrote House Minority Leader Kim Abbott and Senate Minority Leader Jill Cohenour. 

The Legislature’s case can only proceed with the support of four of the U.S. Supreme Court’s nine justices.