HELENA — In a legal brief filed with the U.S. Supreme Court Monday, Gov. Greg Gianforte joined the ranks of Republican state officials criticizing Montana judges for conduct during last year’s legislative session and for ruling against subpoenas from the Republican-led Legislature seeking the court’s records. 

The governor’s amicus filing, written by general counsel Anita Milanovich, is a high-profile signal of Gianforte’s support for the Legislature in its months-long conflict with the judiciary. The brief supports the Legislature’s pending request for the U.S. Supreme Court to consider the case after a legal back-and-forth embroiled lawmakers and the judiciary for much of last year.

Republicans first sought wide-ranging documents from the judicial branch during the spring legislative session after leaked emails showed some judges had criticized bills intended to reshape the judiciary. Lawmakers also took issue with polling of district court judges by the Montana Judges Association meant to gauge support for bills that would affect the judicial branch.

The governor’s filing argues that those actions undermine public confidence in the judiciary and characterizes them as “prejudging” legislation.

“By engaging in discourse about proposed legislation, the Montana judiciary has created an untenable situation: nearly every sitting judge in the state that rules on the lawfulness of legislation can now be viewed with suspicion,” the brief says.

The U.S. Supreme Court, which accepts only a small fraction of requests to consider cases, has not yet responded to the Legislature’s request. 

The Legislature’s appeal to the nation’s highest court continues to put a spotlight on an issue that courts have already attempted to settle at the state level. In a unanimous 36-page opinion, the Montana Supreme Court in July found that lawmakers’ record-seeking in response to the leaked emails and polling was invalid, describing the subpoenas as “sweepingly overbroad” and beyond the scope of legitimate legislative interest. Later last year, the court denied the Legislature’s motion to rehear the case.

In December, Montana Attorney General Austin Knudsen asked the U.S. Supreme Court take up the case, arguing that the state court had infringed on the Legislature’s right to due process by halting its subpoenas. The request also accused the Montana Supreme Court of “judicial self-dealing” for adjudicating the case after individual justices had been subpoenaed. (The state court in May denied the Legislature’s motion for recusal of all seven justices, saying the Legislature had sought to “manufacture a conflict” by issuing subpoenas to the whole bench.)


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

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…

Asked to comment on the governor’s motivation for filing the brief, Gianforte Press Secretary Brooke Stroyke directed the reporter to the brief. 

The filing primarily takes issue with the polling of district court judges about whether they supported pending legislation that would affect the judiciary — polling the judicial branch has often used to provide feedback to lawmakers about the court system. The governor’s brief is also critical of judges expressing opinions about bills in internal emails. Montana Supreme Court Justice Mike McGrath has said such conduct is not inherently in conflict with the code of judicial ethics

The governor’s brief accuses the state judiciary of “violating fundamental due process protections” and eroding public confidence in the judiciary’s impartiality and independence by weighing in on pending legislation and later adjudicating the Legislature’s subpoenas. 

While the heart of debate now presented to the U.S. Supreme Court has to do with judicial conduct, the defendant in the root case remains state court administrator Beth McLaughlin, who originally filed the state lawsuit to block the Legislature’s subpoenas seeking court records. An attorney representing McLaughlin, Randy Cox, declined to comment on the governor’s filing. 

The high court in December granted Cox’s request for a deadline extension until Feb. 9 to file a reply to the Legislature’s petition.

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Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.