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Legislature defends subpoena, SupCo justice takes the witness stand

Legislature defends subpoena, SupCo justice takes the witness stand

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Montana Supreme Court Justice Jim Rice

Montana Supreme Court Justice Jim Rice, right, takes the witness stand Monday as Judge Mike McMahon watches in the Lewis and Clark County Courthouse.

A District Court judge Monday grilled a state attorney representing the Legislature on Republican lawmakers' chosen methods of pursuing their concerns with the judicial branch.

Montana Supreme Court Justice Jim Rice was the only justice last month to file a court challenge against a legislative subpoena seeking his communications regarding any polling conducted on pending legislation. The other six justices put a halt to the subpoenas for their own communications, telling the legislative committee formed by Republican lawmakers that they did not participate in any such polling conducted by the Montana Judges Association. Republican lawmakers remained skeptical after the Supreme Court administrator conceded she deleted the results of one of the email polls.

Lewis and Clark County District Court Judge Mike McMahon did not issue a ruling in Monday's hearing, but said his eventual order will either void, modify or legally bolster the Legislature's subpoena for judicial branch records. He repeatedly prodded the attorney representing the Legislature, Department of Justice General Counsel Derek Oestreicher, to defend the committee's use of legislative subpoenas to pry the judicial branch for information. McMahon pointed out the Judicial Standards Commission is authorized by the state Constitution to investigate the judiciary.

Derek Oestereicher, chief legal counsel for the Montana Department of Justice

Derek Oestreicher, chief legal counsel for the Montana Department of Justice asks a question of Supreme Court Justice Jim Rice in Lewis and Clark District Court on Monday.

Oestreicher argued accommodations for negotiation between the two branches over the subpoenaed materials had not yet reached an impasse, or even gotten underway, so Rice's legal challenge of the subpoena was not ready for the judge's review.

"What accommodations has the Legislature given to Justice Rice before it issued the subpoena?" McMahon said. "At no time, would you agree, that the Legislature gave Justice Rice any advance notice of what it was going to do? It simply put pen to paper, issued a suspect subpoena and said you have certain amount of days to produce these documents and appear."

Rice has alleged an overreach by lawmakers exceeding their power to issue subpoenas without a legislative purpose, and argued the communications the Legislature seeks would violate confidential deliberations by judges and private conversations with his family. Committee chair Sen. Greg Hertz, a Polson Republican, maintained Monday the committee is only pursuing public records. 

"The subpoenas were the Legislature’s formal request to the justices to produce public records," Hertz said in an email to the Montana State News Bureau. "The Legislature anticipated the justices would negotiate the details of compliance with their subpoenas if there were any issues, instead of trying to completely quash the release of public information from the judicial branch."

Rice, a former Republican lawmaker, said from the witness stand Monday the subpoena's language calling for his personal phone records was "chilling." Rice also said he believes the subpoenas and a public statement from the Montana Attorney General's Office refusing to recognize the Supreme Court's order quashing an earlier subpoena, among other criticisms, were part of a "campaign to discredit and undermine the integrity of the court."

Rice said certain communications between the justices include correspondence about U.S. Supreme Court decisions or legislation that impacts the justices' work, materials that are confidential so not to allow plaintiffs to engineer a litigation strategy.

"I don't have anything to hide and I don't think anything I've done in the Supreme Court would be a disgrace," he said. "I think this series of action I've been talking about to undermine the court, to attack the court, are simply continuing."

Curt Drake who is representing Justice Jim Rice

Curt Drake, who is representing Justice Jim Rice, asks question of the Supreme Court justice in Lewis and Clark District Court on Monday.

Democratic lawmakers have accused the committee of manufacturing an email scandal to discredit the court ahead of several anticipated legal battles over conservative legislation passed in recent months and signed into law by a new Republican governor. 

Oestreicher said the committee is willing to negotiate with Rice in regards to which documents would be disclosed, but said the judicial branch should not rule on the matter when it is the party under investigation.

"It's an extraordinary circumstance that calls for a different way for resolving a dispute than through a judicial adjudication," he said. "The judicial branch shouldn't sit and resolve a dispute involving the judicial branch."

Oestreicher argued the Legislature has the authority to investigate the matter, but McMahon stated the Legislature's only obligation when it believes a judge or justice has violated the Judicial Code of Conduct is to file a complaint with the Judicial Standards Commission. That commission is made up of two District Court judges elected by their peers, one attorney appointed by the Supreme Court and two citizens appointed by the governor. On Monday, Gov. Greg Gianforte signed House Bill 380, which requires all of those members be confirmed by the Senate. Lawmakers passed several bills this session criticized by Democrats of being a "power grab" on the judiciary by the Republican-controlled legislative and executive branches.

One of those bills, Senate Bill 140, eliminated the Judicial Nomination Commission, which forwarded a short list of candidates to the governor for appointment to vacancies in District Court or the Supreme Court. The Senate, after the bill passed, rejected one of the judges, former Democratic lawmaker Michele Levine, appointed last year by then-Gov. Steve Bullock, a Democrat. After the Senate rejected Levine's appointment, Gianforte said he would begin the process to appoint a new judge to the vacancy in Cascade County District Court. 

Former state officials challenged SB 140 in court the day after Gianforte signed the bill into law. On Monday, attorneys for the plaintiffs said in a court filing they intend to seek an injunction blocking Gianforte from making that appointment until the case challenging the constitutionality of SB 140 is resolved.

McMahon, meanwhile, said he at the end of Monday's hearing he would sign an order on Rice's subpoena "as soon as possible."

Montana State News Bureau
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