The Montana Supreme Court administrator deleted the emailed results from a poll of judges seeking opinions on a law now being challenged in the Supreme Court, according to documents provided to the Montana State News Bureau.
The law Republican Gov. Greg Gianforte signed in March expanding his appointment power over judicial vacancies immediately spawned a lawsuit challenging the law's constitutionality. The lawsuit, in turn, has ignited an inquiry from the legislative and executive branches over a poll administered in January. The poll was conducted by an email sent out by the state Supreme Court administrator. It solicited approve-or-oppose opinions from District Court judges and Supreme Court justices regarding Senate Bill 140 on behalf of the Montana Judges Association.
According to an order issued by the Supreme Court on Wednesday, 37 judges responded to the poll — most by email and handful by phone — with 34 opposed and three in favor of the bill that eliminated the Judicial Nomination Commission that previously selected nominees to forward to the governor for appointment.
The Montana Attorney General's Office raised the issue when it included in court filings 18 of the judges' responses, although its unclear where the office obtained them. About the same time the Republican attorney general revealed the email poll and asked to stay the case until the Supreme Court administrator turned over more documentation, the House speaker and Senate president, both Republicans, issued a request to the Supreme Court administrator for the remainder of the results. The Supreme Court denied the attorney general's request to delay the case, saying the six justices on the high court had not issued an opinion, and would hear the remainder of the case with a six-justice bench.
After the Supreme Court included the final 34-3 tally of the judges poll on SB 140 in court filings, Senate staff emailed Supreme Court Administrator Beth McLaughlin on Wednesday, asking for a complete breakdown of the vote.
An email sent Wednesday from McLaughlin to Senate staff, provided Friday to the Montana State News Bureau, states McLaughlin did not retain records of the poll results.
State government records retention rules require routine records such as emails be kept for three years. McLaughlin notes in her email judicial branch policy does not require retention of "ministerial-type" emails. The Montana Supreme Court email policy states nothing about records retention, although it does make clear that all messages are property of the state of Montana and will be subject to public scrutiny.
"I provided the information that I have in my possession for SB140," McLaughlin wrote in a follow-up email to Senate staff Thursday. "I did not retain the e-mails or any paper notes other than what I have produced. As this occurred more than two months ago, I have no recollection of who called me with a vote. … They were ministerial in nature to me, collected as an administrative courtesy to the judges, and I did not keep them.
"I have copied the President and Speaker so I can be clear that I have no nefarious intent; instead I have to acquiescence to sloppiness."
McLaughlin, reached by phone Friday, declined to comment for this story.
The Senate GOP said Friday it was looking into public records retention issues in the judicial branch.
“Members of the Legislature are concerned about the judicial branch’s processes on records retention, public records and other items," Kyle Schmauch, spokesperson for Senate Republicans, said in an emailed statement Friday. "The Legislature plans to keep looking into these potential issues.”
The GOP-led Legislature has made several efforts to revise the judicial branch this session, including legislation to revise judicial process and allowing the governor, a Republican for the first time in 16 years, to directly select his picks for judges. Other bills have attempted to create new configurations of the Judicial Standards Commission and another would have made Supreme Court and District Court elections partisan; both died on a House floor vote.
A records request from McLaughlin's office received late Friday showed judges were polled at the association's request for all three of those bills in January, February and March. One email included in the request from McLaughlin included an entire breakdown of the 22 judges' responses when they each opposed Rep. Matt Regier's bill to tilt judicial elections into partisan races.
On Friday, Senate Majority Leader Cary Smith and House Majority Leader Sue Vinton, two Republicans from Billings, introduced resolutions in the judiciary committees of their respective chambers to intervene as parties in the Supreme Court case challenging SB 140 as unconstitutional. Both said the Legislature was an "indispensable" party to the case because it had drafted, debated and voted in the law.
"They're calling into question our ability to pass law," Smith told the Senate Judiciary Committee on Friday. "They're also calling into question the ability of the governor to approve law."
The fiscal note attached to the resolutions estimates a $10,000 cost for hiring an outside attorney to request the Legislature be party to the lawsuit. Bruce Spencer, a Helena attorney representing the State Bar of Montana, said in Friday's hearing that estimate was enough for a motion to join the lawsuit, but the actual cost of litigating the case through its conclusion would top $100,000.
No Democrat voted for SB 140, and lawmakers in the minority said Friday the taxpayers should not be saddled with the expense when the attorney general's office is already defending the case as the governor's counsel. Rep. Danny Tenenbaum, a Democrat and public defender from Missoula, said the Legislature does not intervene on each case in which the constitutionality of state law is challenged.
"If that was the principle we are sticking to, then the Legislature would have to intervene all the time," Tenenbaum said. "People challenge the constitutionality of our laws all the time, I have done it myself. … The Legislature didn't intervene in either case."
Both committees approved the resolutions on party-line votes, sending them to the House and Senate for a full vote.
This week the Montana Supreme Court said it would move forward with the case against SB 140 with only six justices. Silver Bow County District Court Judge Kurt Krueger recused himself last week when the Attorney General's Office filed the judges poll in court documents, revealing Krueger had answered that he was "adamantly" opposed to the poll.
Chief Justice Mike McGrath recused himself from the case not long after it was filed because he had met with Gianforte and Lt. Gov. Kristen Juras, and urged them not to pursue the matter, he told the Montana State News Bureau in a phone interview Friday.
"I introduced myself and my concern that I expressed about this bill, how it could have a major impact on judicial branch policy and how we select judges and what the impact would be," McGrath said.
McGrath said Friday his meeting with the state's top executive officials was early in the process and he did not anticipate at that time the matter would come before the court, although he told them he would recuse himself if it did.
"I just thought it might be worthwhile to talk to him about how I thought this might have an impact on branch policy," McGrath said.
McGrath declined to comment on McLaughlin deleting emails containing judges' responses to the poll on SB 140.
Since 2005, the state Legislature has heard a State of the Judiciary Address from the chief justice of the Montana Supreme Court, but no such event has taken place in this session.
"Normally that comes as an invitation from leadership," McGrath said Friday.
"None came this year."
Update: This article has been corrected to reflect all the emails from the judges poll were deleted. It has also been updated to include more information on the Supreme Court email policy.