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Montana Supreme Court says COPP can't issue subpoena for records

Montana Supreme Court says COPP can't issue subpoena for records

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In an order issued last week, the Montana Supreme Court upheld a district court's ruling that the state Commissioner of Political Practices does not have the power to subpoena for records in its investigatory work.

The order stems from July 2018, when the Montana Democratic Party filed a complaint with the commissioner. The complaint claimed the Montana Republican Party failed to comply with campaign finance reporting and disclosure requirements for elections in 2016, 2017 and 2018.

When Commissioner Jeff Mangan investigated, he first informally requested the state GOP produce relevant documents. The party refused, only providing public campaign finance reports it had already filed in 2016.

Nearly a year after the complaint, the commissioner issued a subpoena for the GOP to produce documents related to its campaign practices and expenditures from 2016 to 2018. When the GOP didn't respond, the commissioner went to district court to compel the party to respond. District Court Judge Michael McMahon sided with the GOP.

In its order, the Supreme Court wrote that by its "plain language," the part of state code the commissioner cited as providing subpoena authority for the documents allows the commissioner to "subpoena witnesses" and "require the production" of relevant documents.

Because those two provisions are found in the same subsection of state code, but "subpoena" only appears before "witnesses" and "require the production" before "relevant records," the court said it is right to assume the Legislature had a different meaning for each type of request.

"If the Legislature had intended to provide COPP with authority to subpoena documents, it could have expressly used the term 'subpoena' in connection with documents," wrote Justice James Shea. "It did not."

In filings, the COPP argued a subpoena was the "only means with real teeth" it can use to "require the production" of documents. The Supreme Court held the commissioner could invoke the jurisdiction of a district court to compel production of documents relevant to an ongoing investigation if necessary.

The court also agreed with an argument from the Montana Republican Party that the commissioner would be both the subpoenaing party and issue of the subpoena, raising due-process concerns.

The underlying complaint filed by the Montana Democratic Party has not been resolved.

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