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Legislature asks Montana Supreme Court to withdraw opinion

The Montana State Capitol

The Montana State Capitol in Helena.

Led by Republican lawmakers, the Montana Legislature is asking the state Supreme Court to withdraw its opinion and order in a case decided last month where justices unanimously said the Legislature exceeded its authority by subpoenaing judicial records.

In a court filing Wednesday, Kristin Hansen, the lieutenant general in the state Department of Justice, asks the state’s high court to “enter the field of negotiation and accommodation for the good of Montana.”

In a unanimous July ruling that spurred Justice Laurie McKinnon to write in a concurring opinion calling the case a "blemish upon Montana's history,” the court slapped down the Legislature, which under direction from GOP lawmakers obtained emails from the court’s administrator and judges through a subpoena to the state Department of Administration.

The court ordered the Legislature to immediately return any of the emails it obtained through the subpoenas, or copies of those documents, to the court administrator.

In Wednesday’s filing, Hansen makes several arguments against returning the documents, saying that doing so would be impossible and the court’s order violates established laws, rules and constitutional principles.

“The immunity afforded by Montana’s speech or debate clause operates when the Legislature holds documents that justifiably embarrass members of the Montana judiciary,” the filing reads.

The Special Joint Select Committee on Judicial Accountability and Transparency, led by GOP lawmakers, published a report in May that “discusses and quotes from those emails extensively,” the filing states. Democrats on the committee have spoken against its focus and that report's conclusions.

Rep. Sue Vinton, the Republican vice chair of the select committee, said in an emailed statement Wednesday she disputed the court's order.

"The Montana Supreme Court issued flatly unconstitutional orders that violate legislative branch authority, attorney-client privilege, and First Amendment rights of free speech and freedom of the press," Vinton said. She also cited a recent federal opinion from the U.S. Department of Justice she said recognized Congress's authority to conduct investigations.

"The Montana Supreme Court made numerous factual, legal and unconstitutional errors in its ruling and the court needs to reconsider this matter. The Legislature continues to propose negotiation with our sister branch of government," Vinton said.

Hansen's filing argues the court’s order would improperly prevent the Legislature from discussing the emails with its lawyers. The filing also points out copies of the emails were obtained by journalists and cited in published reports.

“The court knows this dispute has garnered considerable public interest, and the compliance measures summarized above would necessitate unprecedented, in America, government interference with First Amendment speech and press freedoms,” the filing reads.

The court’s July order stopped the Legislature and its counsel from “disseminating, publishing, re-producing, or disclosing in any manner, internally or otherwise, any documents produced pursuant to the subject subpoenas” and to "immediately return any materials produced pursuant to the subject subpoenas, or any copies or reproductions thereof" to the court administrator. The order did not mention media reports or press coverage.

The emails are in possession of the Legislature's attorneys with the Department of Justice, said Kyle Schmauch, a spokesperson for the GOP Senate majority.

The case in question dates back several months and marks an explosion of long-simmering ire held by Republicans in the state Legislature against a judiciary they deem too liberal. 

During this year’s legislative session, lawmakers learned about the emailed results of an internal poll of judges about pending legislation that would alter the judiciary’s operations.

After the state Supreme Court administrator said she’d deleted some of the emails containing the polling results, lawmakers sought the records through a subpoena to the state Department of Administration, which had retained them. DOA Director Misty Ann Giles began to fulfil the subpoena, turning over 2,500 emails in a day.

Then the state Supreme Court stepped in, quashing the subpoena. Lawmakers objected, saying they'd defy the order. 

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.

GOP lawmakers have questioned the court’s involvement in the case that focuses on emails sent by judges and the court’s administrator. Emails leaked to the Great Falls Tribune in 2013 showed back then Republican leaders discussed "changing the face of the Montana Supreme Court" to be less of a roadblock to conservative efforts.

Republicans in recent months have spoken openly about reworking a judicial branch they see as occupied by left-leaning, "activist" judges.

In Wednesday's filing, Hansen also argues the court's order “contains multiple advisory opinions,” which she says are outside the court’s power and “must be withdrawn.”

The court’s order in July was a strong rebuke of the Legislature's actions, which Justice Dirk Sandefur called a "ginned-up 'crisis'" in a concurring opinion.

"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 then.

The court also pointed out in its order the Judicial Standards Commission can review judicial conduct. Wednesday's filing argues that "doesn’t close the door to other, concurrent legislative oversight."

The Legislature’s response Wednesday was also strongly worded, calling the court’s order “deeply flawed” and setting a “dangerous precedent.”

The filing also “implores the court to disengage from pitched battle and re-engage as a necessary party to fruitful negotiation.”

Hansen also re-asserted the GOP’s claims that the court improperly curbed the Legislature's subpoena power.

"Out of respect for the separation of powers, the Legislature has consistently demanded this matter be resolved through negotiation, not adjudication,” the filing reads.

The court did not take immediate action on Wednesday's filing.

— Montana State News Bureau reporter Seaborn Larson contributed to this story.

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