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Clash in the Capitol: Republican email probe tests separation of powers

From the Complete coverage of Montana's ongoing legislative, judicial conflict series

Former Republican lawmaker Dave Lewis closely tracks what happens under the dome of the Montana Capitol through the 90 days lawmakers fill the building in odd-numbered years, and he's distressed by what's unfolded since the start of the month.

The Legislature, steered by a Republican majority, and the Supreme Court are in an escalating fight. At the end of last week, a newly formed committee led by GOP lawmakers said it would disregard a Supreme Court order and keep seeking emails from the judicial branch they claim show possible misconduct. One branch of government in Montana rejecting the power of another would be unprecedented, except this was the second time it'd happened in less than a week.

"You've tugged on Superman’s cloak and it's not a smart move," said Lewis, who spent two terms in the House and five sessions in the Senate and is lobbying on marijuana legislation this year. "I understand they are frustrated, but you don't take on the Supreme Court lightly."

The genesis of the battle is Senate Bill 140, a bill advocated for by the third branch of government — the executive. Republican Gov. Greg Gianforte signed the legislation in March, eliminating the Judicial Nomination Commission and giving himself direct power to appoint judges when vacancies occur.

Montana State Capitol

The Montana State Capitol in Helena, Mont.

The GOP has long wanted more power to shape the judiciary in Montana, and Gianforte's election last fall gave the party both an increased majority in the Legislature and the executive's desk for the first time in 16 years. The party won up and down the ballot in November by large margins, and points to that self-branded mandate when advocating for priority polices like changing the courts.

Though he was sued less than 24 hours after the ink dried on the bill, Gianforte has stayed quiet in the ensuing constitutional conundrum.

As part of that lawsuit, filed directly with the Supreme Court, the newly elected Republican Attorney General Austin Knudsen disclosed an internal poll it obtained in which judges responded in opposition or support of pending legislation. The Montana Judges Association used the polling to determine the judiciary's input on bills before legislative committees. Republicans have alleged the poll is proof of bias to laws the courts are now ruling on and coordination by the judiciary to meddle in the legislative process. One judge appointed to hear the SB 140 case ended up stepping aside after his own poll response showing opposition to the bill surfaced.

Further prodding by Republican leadership in the Legislature found the Supreme Court Administrator Beth McLaughlin deleted the emailed poll results, raising new questions by the GOP about access to state public records.

The events in the week after lawmakers learned of the deleted emails were extraordinary. Republican leadership subpoenaed the state Department of Administration, who retained McLaughlin's emails. The new head of the department, appointed by Gianforte, rushed to comply, turning over 2,500 pages of documents in less than a day. Director Misty Ann Giles was working through the weekend to produce more when the Supreme Court quashed the subpoena, stopping her progress.

Montana Supreme Court

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. 

Republican lawmakers said they'd defy that court order and issued eight more subpoenas, attempting to haul McLaughlin in before the newly formed Special Joint Select Committee on Judicial Transparency and Accountability and demanding the seven justices' internal communications, some of which are by law confidential, according to the chief justice's Friday's order. Republicans say they'll keep investigating.

Anthony Johnstone, a constitutional law professor at the University of Montana, said the dispute shows a test of how "far the Legislature can reach into the judiciary to do the legislature's job and whether the judiciary can stop the Legislature from doing that in order to do its job."

"In the ordinary workings of government you often see conflicts, but the principle of separation of powers that is embedded in our Constitution is there to keep each branch within its lane," Johnstone said. "The Legislature needs the emails to do their job and the judiciary needs to protect the emails to do their jobs. That's what it boils down to and that's a different kind of conflict than we’ve usually seen."

New landscape

Beneath the clash in the state Capitol are years of pent-up frustration by Republicans. The party has dominated the Legislature for years and attempted to revise the judiciary before, but watched without power as priority bills died by a Democratic governor's veto pen or were struck down by the courts.

Now that the governor's office is Republican real estate, the last piece of the puzzle is the judiciary. Though opponents to many bills this session have vowed litigation if passed, it's fitting the first to hit the courts is over a bill granting Gianforte expanded power to appoint judges.

Senate Majority Leader Cary Smith, R-Billings, said Thursday much of the proposed legislation is intended to give the governor a chance to appoint more conservative judges, who would hear subsequent challenges to the Legislature's work in coming years.

Senate majority leader Sen. Cary Smith, R-Billings,

Senate majority leader Sen. Cary Smith, R-Billings, speaks at a joint house and Senate majority leadership press conference on Jan. 4, 2021, in the state Capitol.

"This gives the governor a chance to have the other side of the equation represented better and we think we have an opportunity to change the status we have with the courts and have more conservative, more people that are appointed that would be more in line with what a lot of us think we need to do to make changes in the court," Smith told a committee hearing one of the bills to reshape the judiciary.

The governor, albeit a defendant in the litigation over SB 140, has been silent on the sidelines of the legislative and judiciary dispute so far. In the trove of emails released by the state Department of Administration, Gianforte's senior adviser and director of strategic communications, Travis Hall, wrote to other senior staff and the lieutenant governor that they don't plan to weigh in on a request for comment from the Montana State News Bureau, unless instructed otherwise. Two other requests for an interview for this story were not returned.

Lee Banville, a political analyst and professor at the University of Montana's School of Journalism, said the power struggle playing out is a departure from the script in Gianforte's bid for governor, which largely featured talk about economic development and tax cuts.

“When you compare what’s being talked about in Helena right now with what Greg Gianforte ran on, they’re very different,” Banville said. “In a lot of these big public fights, he’s not there. He’s not the person lobbing the missiles from the Legislature to the judiciary, but it’s never a question of his advocacy. It’s clear he’s going to sign these bills. That’s his action here.”

The governor's office has worked with lawmakers this session to pass measures through the legislative process. Lt. Gov. Kristen Juras, de facto lobbyist for Gianforte, was stern in her testimony urging lawmakers on Gianforte's behalf to pass SB 140, calling the perception of impartiality by the Judicial Nomination Commission a "fiction."

Not a new effort

Jeff Essmann, a Billings Republican and former Republican Senate president, said the legal challenge to SB 140 is contentious enough on its own to raise ire. The Montana Constitution grants the governor power to select judges in "a manner provided by law." Now that the Legislature has provided a new manner in law to select judges, opponents have gone beyond the "simple reading" analysis held by Republicans and raised questions about the intent by lawmakers when they installed the commission in 1973.

Jeff Essmann

Rep. Jeff Essmann is a former GOP lawmaker from Billings.

"So, predictably, when you've got a Legislature that's finally able to move some priorities and you have people saying you can't pass certain legislation, there's just a fierce reaction," Essmann said in a phone interview Friday, adding the conflict that's arisen from this case is unprecedented in his memory.

In 2013, emails leaked to and reported on by the Great Falls Tribune show Essmann was one of the GOP leaders involved in shaping policy before that session, including discussions on "changing the face of the Montana Supreme Court" to be less of a roadblock to conservative efforts.

While the GOP has increased its majorities in the Legislature over the last decade, its still been neutered by a Democratic governor. But now, even with both of those branches held by the same party, the Legislature is still seeking to reel in the executive branch's power, Essmann pointed out.

That includes bills limiting the governor's ability to spend federal money between sessions or enact administrative rules. Lawmakers overrode Gianforte's first veto on a bill that gives the Legislature a new way to revoke those rules.

"If the Legislature would not react, protecting its prerogative as delegated by the Constitution, it would never shed its lap-dog status again," Essmann said. "And so, the Montana Legislature needs to be, and this session finally has been, more assertive in restoring its proper role as an independent branch of government."

Where does this go? 

Democrats, deep in the minority, said the unfolding situation appears to be headed toward a constitutional crisis and Republicans are "drunk with their power."

“Since the very beginning of the session, the governor and the Republicans have been doing everything in their power to delegitimize and take over Montana's independent system,” Senate Minority Leader Jill Cohenour, a Democrat from Helena, said. “I’m concerned about this latest attack and I’m concerned because it's not really about defending our legislative work in the courts, but it's an effort to basically do everything possible to drag the courts through the mud and make it look political.”

Democrats have been successful in voting with moderate Republicans to kill attempts to affiliate the judiciary with partisanship. Conservatives argue the voters should be more aware of who they are electing to the bench when proposing bills that would tilt judicial campaigns into political affairs. But Democrats have said the judiciary has endured a "session-long" attack by Republicans to cripple the court's authority in the public eye.

Sen. Diane Sands, D-Missoula

Sen. Diane Sands, D-Missoula, has been named to the select committee investigating the judiciary. Sands disputes the need for such inquiry. 

As the Select Committee on Judicial Transparency and Accountability held its first meeting Friday, Democrats questioned its validity and called it a "witch hunt."

"It's extraordinary, in many ways, and very disturbing, in many ways," said Sen. Diane Sands, a Missoula Democrat appointed to the committee. "All session we've been hearing bills that really, in many ways, go after the court and our judicial system. It really impugns the character and the commitment of the members of our court to act as an independent branch of government, in conjunction with their oath of office, to uphold the Constitution."

House Majority Leader Sue Vinton, a Billings Republican, disputed Sands and defended the committee.

"I am ... shocked by the accusations and the allegations that are contained in those remarks. I consider the privilege of serving on this committee as being one of finding transparency, looking for truth, looking for the facts, and I intend to participate in this committee with those ideas at the forefront," Vinton said.

House Majority Leader, Rep. Sue Vinton, R-Billings

House Majority Leader Rep. Sue Vinton, R-Billings, defended the committee studying the judicial branch. 

The committee will meet Monday at 9 a.m. The Supreme Court quashed the subpoena for McLaughlin, the court's administrator, to appear and testify at that time, but committee chair Sen. Greg Hertz, R-Polson, said Friday he expects full compliance with the subpoenas. It's unclear what happens next. 

Adding another layer, legislators have been told to not come into the building for committee meetings Monday because of a confirmed COVID-19 case for lobbyist as a contact tracer works to identify close contacts. The session is also nearing its termination, previously expected by the end of this month.

Banville said refusing to acknowledge the court's authority presents a danger that could having lasting power.

“When the highest court in a state rules, even if they’re wrong, you have to abide by it and appeal it,” Banville said. “Simply saying we don’t acknowledge it is, I feel like ‘troubling’ isn’t quite serious-enough a word.”

“If we started ignoring the law, that’s anarchy and what we’re seeing is the Legislature saying the organization that’s in charge of telling us what the law is has answered a question and we don't agree so we’re going to ignore it,” Banville said.

Some hope the weekend will give a much-needed pause.

"I think some people need to take a deep breath and take a step back," former lawmaker Lewis said Friday.


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