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Supreme Court: Legislature overstepped authority with subpoenas
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Supreme Court: Legislature overstepped authority with subpoenas

From the Complete coverage of Montana's ongoing legislative, judicial conflict series
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The Montana Supreme Court on Wednesday ruled the state Legislature overstepped its authority when it subpoenaed records from the judicial branch without a legislative purpose.

The unanimous ruling caps a months-long legal dispute between the Republican-led legislative and executive branches and the judicial branch.

Justice Beth Baker authored Wednesday's opinion, writing the Legislature was attempting to act as a law enforcement agency, a function of the executive branch, in its investigation and use of "overbroad" subpoenas.

Republicans in recent months have spoken openly about reworking a judicial branch they see as occupied by left-leaning, "activist" judges. In Wednesday's opinion, justices shot back at the GOP's approach.

"The constitutional doctrine of separation of powers does not tolerate the control, interference, or intimidation of one branch of government by another," Justice Laurie McKinnon wrote in a concurring opinion. McKinnon called the case a "blemish upon Montana's history(.)"

Montana Supreme Court justices

Montana Supreme Court Justice Laurie McKinnon asks a question during arguments in the Jon Krakauer records request hearing at the Strand Union Building at Montana State University in Bozeman in April 2016.

The court's opinion also ordered the state Legislature to return any materials produced through the subpoenas in question. A spokesperson for Republican lawmakers did not respond Wednesday to an emailed question as to whether they had done so. 

Republicans, for the first time in 16 years, took control of both the legislative and executive branches after last year's election. Prior to Wednesday's ruling, the high court had said in orders that lawmakers had manufactured a crisis with the subpoenas to disrupt the non-partisan judicial process. Justice Dirk Sandefur called the dispute a "ginned-up 'crisis'," in another concurring opinion Wednesday. 

"Contrary to the irresponsible rhetoric that has and will likely continue to spew forth from those intoxicated with their long-sought unitary control over the political branches of government, this case is not about judicial disregard of the public’s right to know, noncompliance with applicable public records retention laws, judicial bias, or judicial 'lobbying,'" Sandefur wrote.

"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."

Lawmakers abandoned the subpoenas in June, hoping to settle the dispute for the records they sought out of court after the justices ruled they would not disqualify themselves from presiding over the case. The Supreme Court subsequently ruled withdrawing the subpoenas did not render the challenge to the Legislature's ability to subpoena judicial records moot.

Anthony Johnstone, a constitutional law professor at the University of Montana, said in a phone interview Wednesday the ruling applies the same separation of powers principles recently seen play out at the federal level. 

"This is the first time (the state Supreme Court has) discussed legislative subpoenas," Johnstone said. There's not a long history in Montana of issuing legislative subpoenas. Even at the federal level, it's uncommon for these things to get to the point of a final decision by the Supreme Court."

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.

Cox, McLaughlin's attorney, said in an emailed statement Wednesday that McLaughlin was pleased with the ruling.

"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," Cox said.

Wednesday's opinion states the Legislature "unquestionably" may seek data from the court administrator, but investigating potential violations of state law "is not a valid legislative purpose to justify subpoenas."

This type of investigation would be under the authority of the executive branch, not the legislative, the court wrote. 

"Those are the same (separation of powers) principles that the Legislature would rely upon to defend itself against an encroachment of judicial power," Johnstone said.

Lawmakers argued the subpoenas' legislative purpose was to determine whether legislation should be enacted regarding public records retention, employee use of government time and resources to lobby, and whether judges had created conflicts of interests in the event that the laws on which they had been polled are challenged in court before them.

The Supreme Court wrote Wednesday the judicial branch's records policy is available online. The opinion states lobbying complaints should be taken up with the Montana Commissioner of Political Practices, an executive branch office, and added that McLaughlin's polling the judges so to inform the Legislature on how bills would affect the judicial branch does not qualify as lobbying. 

And if responding to these polls on legislation in a support-or-oppose fashion is evidence of judicial bias, the justices wrote, that matter is for the Judicial Standards Commission, a body enshrined in the state constitution, to decide, not the Legislature to investigate. To the question of whether the judiciary's opposition to pending legislation was proof of bias, the justices pointed to Senate Bill 140, a law recently passed to abolish the Judicial Nomination Commission. The judiciary's lobbying arm opposed during the legislative session, although the Supreme Court upheld the law as constitutional when the challenge came before them. 

The Legislature, represented by the Republican Attorney General's Office, had argued during the course of the case that the Supreme Court should not be able to rule on the matter of their own subpoenas. Sen. Greg Hertz, chair of the Select Committee on Judicial Transparency and Accountability, the legislative body investigating the judiciary, added on to that argument Wednesday.

Sen. Greg Hertz, R-Polson

Sen. Greg Hertz, R-Polson, speaks on the Senate floor in the state Capitol.

"This ruling is exactly what you'd expect to get from people acting as judges in their own case, protecting their own interests," Hertz said in an emailed statement. "Not only did the Montana Supreme Court rule in their own favor on the subpoena question, they have gone way beyond that and ruled in their own favor on a wide variety of other issues that weren't before the Court. This ruling is poisoned by a massive conflict of interest and it's judicial activism at its worst."

Kyler Nerison, a spokesman for the Attorney General's Office, called the Supreme Court's conduct over the course of the case "unethical," "embarrassing for the state" and "shameful."

“As required by the Montana Code of Judicial Conduct and requested by the legislature, the justices should have recused themselves because of their undeniable conflict of interest," he said. "Yet, in a surprise to no one, they once again issued a self-serving ruling to protect their own employee and hide their own public records."

But the Supreme Court's Wednesday opinion states the court administrator is no insulated from turning over information to the legislative branch. "Far from it," they wrote.

Indeed, the Legislature's options include a the Legislative Auditor, who was directed in legislation in April to conduct a review of the Judicial Standards Commission to determine if it has the power to address the accountability issues raised by lawmakers. 

In his concurring opinion, Sandefur wrote the "survival and vitality" of the state's democracy depends on all three branches of government respecting each other's function without interference.

"This simple, self-evident principle is more important than ever when, as now, a single political faction overwhelmingly controls the two partisan branches of state government, rendering it quite expedient to irresponsibly attack and attempt to undermine the only non-partisan branch in an effort to attain unitary, unfettered — in effect, authoritarian — power, unconstrained by constitutional limits," Sandefur wrote.

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