The Montana Supreme Court on Tuesday rejected a motion by the GOP-led Montana Legislature to reconsider its July decision, which found lawmakers overstepped their authority when they subpoenaed judicial branch records without a legislative purpose.
The Legislature, represented by the Republican state Attorney General's Office, had asked the high court to withdraw its opinion and order last month and dismiss the case. Lieutenant General Kristin Hansen painted the Supreme Court's ruling as a refusal to meet with lawmakers to negotiate the release of judicial emails. In their order on Tuesday, justices wrote their July ruling did not foreclose discussions between the branches and only examined the question of legislative subpoena power.
Lawmakers issued the subpoenas in April after learning about an internal email poll of judges during the session on pending legislation related to judicial functions. They say the communications are a predetermination on legislation the judges may rule on later. Beth McLaughlin, the Montana Supreme Court administrator, had deleted some of the email poll results from District Court judges; the Supreme Court justices told lawmakers they had not participated in the polling.
Still, legislators subsequently formed an investigative committee and subpoenaed the Department of Administration, an office in the executive branch, for McLaughlin's emails. The Supreme Court quashed that subpoena, and within days the committee subpoenaed communications from McLaughlin and all seven Supreme Court justices.
McLaughlin then petitioned the Supreme Court to quash the legislative subpoenas on a separation of powers argument, adding the Department of Administration had turned over several thousand emails to lawmakers containing potentially confidential third-party information. Justice Jim Rice likewise challenged his own subpoena in Lewis and Clark County District Court. Judge Mike McMahon ruled last month Rice's challenge is not moot, even after the Legislature abandoned all its subpoenas for judicial records.
The Legislature, through its counsel at the Attorney General's Office, has asked for negotiations of the records since May, when Rice, a former Republican lawmaker, took the stand in McMahon's court to denounce the subpoenas as a "campaign to discredit and undermine the integrity of the court."
McMahon had not issued a final ruling on the constitutionality of the legislative subpoena for Rice's records; the Legislature has until Sept. 17 to file its next brief on the matter.
Kyle Schmauch, a spokesperson for Republicans of the Select Committee on Judicial Accountability and Transparency, said Tuesday lawmakers will discuss steps following the court's ruling.
"The Legislature gave the court an opportunity to reconsider and clarify concerning parts of its order," Schmauch said. "The justices addressed a couple of those items and ignored others. Members of the Select Committee on Judicial Accountability and Transparency will be discussing next steps with each other, the Department of Justice and the Legislature's special counsel."
Last week Speaker of the House Wylie Galt and Senate President Mark Blasdel, both Republicans, appointed Abra Belke, chief of staff to the Senate Majority, as special counsel. Belke's work will include duties outside of the select committee and will serve at the pleasure of the speaker and president.
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