Montana Supreme Court
The entrance to the Montana Supreme Court photographed Wednesday, Jan. 25. Credit: Samuel Wilson / Bozeman Daily Chronicle

The Montana Senate gave preliminary approval Thursday to a bill that aims to clarify the Legislature’s power to conduct investigations and obtain documents through subpoenas, advancing a measure drafted as a result of a protracted separation-of-powers fight between Republican lawmakers and the Montana Supreme Court. 

Senate Bill 490, sponsored by Sen. Greg Hertz, R-Polson, would clarify that the scope of the Legislature’s investigatory powers includes any subject under a broad umbrella of public policy areas. That, Hertz said, would remedy the issue the Montana Supreme Court identified when it ruled a raft of legislative subpoenas invalid in 2021 on the basis that they lacked legitimate legislative purpose.

The bill passed the Senate on second reading Thursday on a party-line 34-16 vote, with Democrats in opposition. It faces a final third reading vote before advancing to the House. 

The bill says the Legislature has the power to investigate:

  • Anything “regarding information in connection with the proper discharge of the legislature’s function to enact, amend, or repeal statutes, appropriate money, audit state and local government finances and programs”  
  • Anything “in which there is a legitimate use that the legislature can make of the information being sought” 
  • “The management of state institutions and public agencies”
  • Any matters “concerning the administration of existing laws, proposed laws, or potentially necessary laws”
  • and “matters concerning defects in any social, political, or economic system to remedy those defects” 

In other words: just about anything that the Legislature determines is useful to its work. 

“I think we all realize how important the checks and balances are in regard to the three branches of government,” Hertz told lawmakers on the Senate floor Thursday. 

That’s become a common refrain among Republican lawmakers since their inter-branch skirmish with the judicial system began during the 2021 Legislature. In that session, debate over legislation specifying how judicial vacancies are filled spiraled into a broader fight about the lobbying practices of the judiciary and the Montana Judges Association, as well as whether the judiciary’s rulings appropriately reflect the Legislature’s increasing conservatism. 

Lawmakers formed a special select committee that issued subpoenas to several Montana Supreme Court justices. Justices appeared before the committee but declined to release court records, contending that the Legislature’s subpoenas weren’t properly related to a legislative purpose and thus exceeded the branch’s authority.  

The select committee continued its work during the interim, recommending several pieces of proposed legislation for the 2023 session, including SB 490. 

Democrats have been vocal defenders of the court’s integrity during the fight. In debate Thursday, Sen. Jen Gross, D-Billings, rose in opposition to the bill, calling it “overly broad and far reaching.” 

The bill, in addition to defining the scope of legislative subpoena powers, also says legislative subpoenas are presumptively constitutional. It says that any committee — standing, interim, special, etc. — can issue subpoenas, along with legislative leadership.

It does offer some sideboards. Subpoenas are required to state their legislative purpose. A person subject to subpoena who believes the related records may contain confidential information can notify the issuer and submit a notice of denial with an explanation. Those served can also request more time to supply documents. 

The subpoena fight in 2021 was the most prominent flare-up in a saga that’s played out for years. Some Republicans expressed consternation at the court system — now the only branch of government in Montana that the GOP doesn’t dominate — long before the 2021 session. Those criticisms have intensified over the past two years as plaintiffs challenged the constitutionality of roughly two dozen laws passed by the Montana Legislature last session, resulting in several GOP policies being blocked by court orders. That dynamic also became explicit at times during the high-dollar 2022 Supreme Court race between incumbent Justice Ingrid Gustafson and Public Service Commission President and conservative attorney James Brown. Gustafson was the eventual victor despite Brown’s endorsement by the Montana GOP and prominent Republicans. 

Several other GOP-backed bills proposed this session also intersect with the conflict, trying to direct judges to recuse themselves if they’ve received campaign donations from attorneys in a given case, open up the proceedings of the judicial discipline process or change injunction standards. 

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Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.