The Montana Supreme Court on Sunday put the brakes on a legislative inquiry into the state court administrator’s emails, which recent revelations have shown to contain judges’ polls on pending legislation and were deleted from the administrator’s account.
A dispute over the separation of powers is developing out of a state Supreme Court case over the constitutionality of a new law signed last month expanding the governor’s appointment power over judicial vacancies.
On Monday the Senate Republicans, through counsel with the Montana Department of Justice, said they will defy the court's order quashing the subpoena, stating the dispute over judicial emails do not belong in the case challenging the constitutionality of a new law.
"The Legislature does not recognize this court's order as binding and will not abide it," Department of Justice Lieutenant General Kristin Hansen wrote in a letter issued to Supreme Court Justice Jim Rice. "The Legislature will not entertain the court's interference in the Legislature's investigation of the serious and troubling conduct of members of the judiciary."
In March Republican Gov. Greg Gianforte signed Senate Bill 140, eliminating the Judicial Nomination Commission and giving himself power to directly appoint judges after vacancies. A legal challenge brought straight to the Supreme Court followed the next day.
Then questions about judicial impartiality erupted after the Attorney General’s Office revealed an internal email poll in which many judges around the state had issued opinions on SB 140. Already the court's chief justice had recused himself because he previously spoke to Gianforte and the lieutenant governor about his concerns with the bill. The judge appointed to fill his spot stepped aside after emails showed he also opposed the new law.
On Friday, the Montana State News Bureau learned all of those emailed poll results were deleted.
On April 8, Senate Judiciary Committee Chair Keith Regier, a Republican from Kalispell, issued a subpoena to state Department of Administration Director Misty Ann Giles ordering her to produce all of Montana Supreme Court Administrator Beth McLaughlin’s emails, as well as any deleted emails that be recovered, since Jan. 4. Giles is a recent Gianforte appointee whose confirmation is still pending before the Legislature.
After a request through a private attorney to the Department of Administration to hold off from turning over the emails to the Senate failed, McLaughlin filed an emergency motion with the Supreme Court Sunday to quash the subpoena.
“It is our position that the legislative subpoenas for internal judicial documents are categorically invalid as in violation of the fundamental separation of powers principles, among other things,” McLaughlin’s attorney, Randy Cox, wrote to the Department of Administration on Saturday.
Senate Minority Leader Jill Cohenour on Monday raised issue with Giles, whose appointment has not yet been confirmed by the Senate, indiscriminately releasing the first batch of emails to Regier regardless of private and confidential information. In a letter to Gianforte and also sent to Giles, Cohenour requested all of the director's communications beginning April 8 with the same expeditious access that was granted for the Senate committee's subpoena.
"Montanans deserve to know what happened this weekend and why sensitive information was produced in response to a questionable subpoena and over the objection of the judicial branch," Cohenour wrote.
The Department of Administration already turned over part of the documents sought by the legislative subpoena on Friday, according to court records. The remaining records were to be delivered to Regier’s office at the Capitol on Monday. The Senate GOP, after a records request from the bureau, provided a letter from McLaughlin's attorney sent Sunday night intending to retrieve all the documents DOA provided Friday. Meanwhile, the Senate Republicans said in a press conference Monday that they had retained their own outside legal counsel on the matter.
The emails the Senate Judiciary Committee received Friday and obtained by the Montana State News Bureau on Sunday include judges’ polled opinions on pending legislation, largely having to do with the judicial branch, sometimes expressed in written comments.
That included discussing a bill to overhaul the Judicial Standards Commission with a supermajority of citizen members with the power to remove elected judges and rebrand the panel as “The Judicial Inquiry Commission.”
The Judicial Standards Commission’s make-up includes two sitting District Court judges, Lewis and Clark County District Court Judge Mike Menahan and Judge Randal Spaulding of the Musselshell County District Court. One attorney and two citizens appointed by former Democratic Gov. Steve Bullock are also on the commission.
“The more I see and hear, the more I believe the legislature should meet every ten years for ten days, each legislature can sponsor no more than 10 bills, and they should get $10 per day per diem,” Spaulding wrote on March 24, ending the note with a smiley face emoji.
House Bill 685 by Rep. Brad Tschida, R-Missoula, died on a 47-52 vote on second reading in the House on April 1.
Spaulding wrote in the email cache that HB 685 was "likely unconstitutional in its inception."
Chief Justice Mike McGrath said in an email the new title for the commission was “out of the book, ‘Where Democracies Go To Die.”
The GOP-led Legislature has this session introduced several attempts to alter the judicial branch, from removing the nomination panel between the Republican governor and applications for the bench to introducing new definitions for acts for which a judge can be impeached.
Democrats, deep in the minority this legislative session, have voted against all such proposals and likened the focus on the judicial branch to a power grab.
“I don't know why but the 67th Legislature is in my opinion very much overreaching into judiciary and attempting to destroy the independence of that branch,” Sen. Jen Gross, D-Billings, said on the Senate floor in March. “To me this is just the latest attempt and we’re clearly seeing a pattern now where a political party is basically taking power grabs and putting them into statute.”
The justices wrote in their Sunday order that because the Senate committee’s subpoena does not reference SB 140, or the Montana Supreme Court case, it would not “address the serious issues raised regarding the Legislature’s authority to issue such a subpoena” without further hearings.
The high court also concurred with McLaughlin’s attorney, who argued the subpoena was too broad, and turning over all her emails could divulge private health information, youth court proceedings and other confidential material.
The Supreme Court’s order on Sunday quashed the Senate committee’s subpoena, and gave McLaughlin one week to file another brief to argue why the dispute should be attached to the SB 140 lawsuit instead of a new, separate case. The Senate committee, which does not yet have legal representation in the case, will have two weeks to respond.
But on Monday Hansen, of the DOJ, said the Legislature will defy the Supreme Court's order, invoking the separation of powers for its own means. Through the subpoena, lawmakers intend to look into several potential violations of state law and policy: whether McLaughlin deleted public records and whether McLaughlin performed tasks for the Montana Judges Association during taxpayer-funded worktime. Additionally, lawmakers are considering whether the policies of the Judicial Standards Commission can efficiently address how judges are polled on pending legislation that could come before the court.
Hansen said the Legislature will address issues of redacting confidential information appropriately.
"All sensitive or protected information will be redacted in accordance with law," Hansen wrote to Justice Rice.
The Department of Administration did not return an email late Monday asking for comment on how the department will move forward with dueling directives from the state Supreme Court and the Legislature.
Last week both chambers in the Legislature got underway on passing resolutions to join the Supreme Court case to defend SB 140’s constitutionality. Both the GOP-led House and Senate committees that forwarded the resolutions to their full chambers passed the resolutions on party-line votes. The Senate passed its resolution on a party-line vote on Monday. The full House has not taken action yet on that chamber's resolution.
Sen. Diane Sands, a Missoula Democrat, spoke against the resolution on the Senate floor, arguing the Legislature was overreaching into the judicial branch's duty to interpret laws. Appropriating resources to further defend its bill in court, Sands said, was akin to "forcing the judicial branch to fall in line with a partisan agenda."
Senate Majority Leader Cary Smith, who sponsored the resolution, said the $10,000 appropriation was an estimated quote from an outside attorney to enter the case. Montana Attorney General Austin Knudsen is representing the governor in the proceedings and would likewise represent the Legislature, Smith said.
"Whether you agree with SB 140 or not, this is a matter of exerting the authority we have as a legislature and the right to pass bills," Smith told the Senate floor.