Unanimous Supreme Court Rules Pair Of Legislative Subpoenas Are Improper

By Arren Kimbel-Sannit, Daily Montanan

July 18, 2021

The Montana Supreme Court on Wednesday ruled that a series of legislative subpoenas seeking judicial emails in the heat of an inter-branch conflict in April were overbroad and issued without proper legislative purpose, permanently quashing the document requests and ordering lawmakers to return any subpoenaed material they’ve already received.

In a unanimous opinion, the court said that a pair of subpoenas issued by the Senate Judiciary Committee and Republican legislative leadership in the waning weeks of the session are “far broader than necessary,” seek information that the Legislature could get elsewhere, don’t serve a valid legislative purpose and jeopardize the constitutional rights of other parties.

The court’s opinion was supplemented by two blistering concurrences from Justices Laurie McKinnon and Dirk Sandefur, who reiterated assertions that some justices have made in previous filings that the Legislature’s investigation into allegations of judicial bias and impropriety is politically motivated and a threat to the separation of powers.

“Beyond the smoke-screen of the catchy but demonstrably false allegations leveled against the judiciary is an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch to conduct independent judicial review of legislative enactments for compliance with the supreme law of this state — the Montana Constitution,” Sandefur wrote.

The court’s ruling Wednesday signals a new stage in a saga that began months ago with the passage, signing and subsequent litigation of Senate Bill 140, legislation that overhauls the process for filling judicial vacancies, giving more control to Republican Gov. Greg Gianforte to pick candidates he sees fit without the interference of other bodies. Previously, a Judicial Nominating Commission guided the process. Filings in that case from Attorney General Austin Knudsen demonstrated the Montana Judges Association’s practice of polling its member judges on certain pieces of legislation that affect court administration, leading some Republicans to accuse the court of “pre-judging” legislative matters that might come before the bench.

Lawmakers asked Court Administrator Beth McLaughlin for more information on the polls, but she said she had deleted some of the emails, citing a practice of her office. The Legislature then issued a subpoena to the Department of Administration for all emails and attachments sent to or from McLaughlin over a four month period. McLaughlin said she discovered the subpoena the next day, and soon sued to stop it, along with a separate subpoena of similar scope sent to her directly shortly after, arguing that the thousands of pages of documents could contain sensitive information with no opportunity to review the request. Though the Legislature withdrew the subpoenas and asked the high court to dismiss the case two weeks ago, not long after receiving a favorable ruling in the SB140 case, the justices decided that they would still pursue a ruling, which they handed down Wednesday.

Legislative Republicans have presented the subpoenas and a related investigative select committee as a way of ensuring judicial compliance with public records retention laws and canons of judicial ethics possibly en route to drafting legislation altering ethics standards. Sen. Greg Hertz, R-Polson, who led that select committee, blasted the court’s ruling in a statement Wednesday, accusing the justices of “acting as judges in their own case” and protecting their own interests.

“The Legislature and our attorneys will continue to review this astounding ruling in more detail. We have even more work to do than we thought to ensure that Montana’s Judicial Branch is subject to the same transparency and accountability that governs the Executive and Legislative branches,” Hertz wrote.

A spokesman for the legislative majority had no further details on what the Legislature’s next steps were and what more work there was to do by press time.

Randy Cox, McLaughlin’s attorney, said he hopes the Legislature follows the court’s order and that “there is nothing to be gained from continuing a process that undermines the public’s respect for any branch of government.

“No government institution should be allowed to circumvent orderly legal process to secretly grab potentially private, personal or privileged information of its citizens without the opportunity for due process of law,” he said. “Here, the Montana Supreme Court did nothing more than apply plainly-established legal principles regarding due process and government power to the Legislature’s subpoenas.”

Knudsen, who has acted as the Legislature’s counsel in the proceedings, had a similarly fiery statement, saying through a spokesman that the Justices suffered from an “undeniable conflict of interest” in ruling on the legality of a subpoena for judicial documents.

Indeed, that was one of the first issues that the High Court discussed in its ruling Wednesday, with Justice Beth Baker writing that the court has an “unflagging responsibility to decide cases and controversies, even those that involve the authority of a coordinate branch of government or the courts’ own functions,” citing previous cases at the state and federal level where the court has adjudicated matters related to its own operations and also determined the allowable scope of a legislative subpoena.

These cases include Trump v. Mazars USA LLP, a 2020 U.S. Supreme Court case in then-President Donald Trump sued to stop a subpoena from Congress seeking Trump’s tax returns from the accountancy firm that did his books. Trump argued the subpoena didn’t serve a valid legislative purpose, but lower courts ruled with the congressional committee issuing the subpoena.

The Supreme Court, however, held that the previous rulings did not take into account the separations of powers implications of the subpoena, and set up a multi-prong test to prove the legality of such subpoenas: whether the information is available elsewhere, whether the subpoena is “no broader than reasonably necessary” to achieve the legislative intent, whether there in fact is a proven legislative intent and whether there’d be an overdue burden on the recipient — in this case, the President.

Montana’s high court relied on that and other rulings in its order Wednesday, saying in sum that the Legislature didn’t prove a valid legislative purpose. For one, lawmakers said they sought to investigate violations of public records retention policies and law.

“Addressing alleged violations of existing law is an enforcement matter entrusted to the executive, not to the legislative branch of government; it is therefore not a valid legislative purpose,” the order reads.

Additionally, the court said that an investigation into the deletion of emails is based “on an unsubstantiated premise that Judicial Branch members are required to retain all e-mails and fails to show that compelling production of thousands of unredacted Judicial Branch messages, rather than undertaking other forms of inquiry, will advance its consideration of legislation on the matter of a judicial records retention policy.”

Anthony Johnstone, a professor at the University of Montana Alexander Blewett III School of Law, said the court “recognized the Legislature seemed to be more interested in calling out the judiciary rather than making legislation.

“The primary thrust is to recognize the place of the legislature in legislating rather than enforcing or adjudicating the law, and recognizing the place of the judiciary in adjudication rather than legislating the law,” he said. “That’s a standard separation of powers analysis.”

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