Republican legislative leadership Thursday issued a new round of subpoenas for all seven Montana Supreme Court justices and the court administrator in an ongoing inquiry into GOP claims of misconduct through the court's email system.
The Legislature, which is held by a Republican majority, has rapidly mobilized in the last week to investigate the judiciary for polling judges on pending legislation regarding the courts, while Democrats have denounced the GOP's actions as attempts to undermine the courts.
As multiple controversial bills have moved through this legislative session with GOP support, opponents have vowed to take to the courts to challenge what becomes law. That includes a broad range of bills — from revising the judicial process to allowing openly carried firearms on college campuses and restricting access to health care for transgender youth and limiting abortions.
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The nine subpoenas issued by lawmakers in the last week is a procedural outlier for the Legislature. The 2015 House Human Services Committee, then chaired by former Rep. Art Wittich, issued four legislative subpoenas over the course of that session, legislative legal services told the Montana State News Bureau this week. In 2007 the only legislative subpoena issued came from the Senate Natural Resources and Energy to the president of Northwestern Energy to provide information on shares of a Colstrip power plant unit.
Republican leadership in the state Legislature on Wednesday formed the Select Committee on Transparency and Accountability to consider potential legislation regarding what Senate President Mark Blasdel called “judicial recusal, retention of judicial emails and other documents, resources and other matters concerning the administration of the judicial branch."
In 2018, the Legislative Services Division's chief legal counsel issued a memo on the legislature's investigative authority. The memo stated the Legislature's ability to investigate is extended to any subject, but is simultaneously limited to purposes of enacting legislation. The Legislative Services Division, working as an instrument of the select committee formed to carry out the investigation, "may investigate and examine state government activities and may examine and inspect all records, books, and files of any department, agency, commission, board or institution of the state of Montana," the memo reads.
The subpoenas to the justices, dated Wednesday, seek any communications regarding pending legislation during the course of the 2021 session. Since one bill was signed into law, Senate Bill 140, and challenged in the Supreme Court, Republican lawmakers have been turning over court emails in search of opinions on pending legislation by any judges who may subsequently preside over a legal challenge to new laws.
In the legal challenge of SB 140, which expanded the governor's appointment power over judicial vacancies, the Montana Attorney General's Office revealed in the Supreme Court Administrator's emails a poll of judges in which 37 district court judges opposed or supported the measure.
An eighth subpoena for Supreme Court Administrator Beth McLaughlin requests she appear at 9 a.m. Monday at the state Capitol to produce her work computers, hard drives and telephones, along with any other state-issued work equipment that was used to conduct judges polls.
McLaughlin is requested to appear at the same time the newly formed Select Committee on Transparency and Accountability is set to meet Monday morning to begin working toward legislation regarding concerns of email retention and other use of state resources in the judiciary. McLaughlin's subpoena calls on her to testify at the appearance. Her attorney, Randy Cox of Helena, did not immediately return an email seeking comment on whether McLaughlin would oppose the subpoena. The committee is set to meet through the end of the session, which is likely in late April, and it is past the deadline for most legislation to get introduced and advance through the process.
Democratic lawmakers who have been appointed to the committee to investigate the judiciary, participating however reluctantly, said Thursday the subpoenas were another move in eliminating the checks and balances against branches of government held by the Republicans.
“Yesterday, Republicans advanced their attack on a co-equal, independent branch of government; today, they have escalated that attack," Sen. Diane Sands and House Minority Leader Kim Abbott said in a joint statement. "Democrats will defend our constitution against this brazen assault on the bedrock American principle of checks and balances, and hold our colleagues accountable for this severe overreach.”
McLaughlin last week opposed a subpoena issued to the state administration department director for her emails; that subpoena was temporarily quashed by the Supreme Court, although GOP leadership in the Legislature said they would not recognize the court's "interference" into its investigation.
The subpoenas are signed by House Speaker Wylie Galt and Senate President Mark Blasdel. The two Republican leaders issued a joint statement Thursday on the subpoenas.
“Recent revelations have raised serious concerns about the procedures and conduct of Montana’s judicial branch of government. Out of respect for the judiciary and all who come before our courts, the Legislature is committed to ensuring and reinforcing the integrity of Montana’s judicial branch. We have recently issued multiple legislative subpoenas in an effort to obtain clarity on where problems exist and inform what legislative reforms may be necessary to fix the situation. We must maintain the integrity of the judicial branch so it can perform its critical functions vested by the Montana State Constitution.”
Senate Majority Leader Cary Smith was very plain Thursday morning about the Republican strategy to "change the courts" rooted in legislation this year, particularly the bill being challenged now in the Supreme Court.
The House Judiciary Committee heard Smith's Senate Bill 402. The proposal hedges the Republicans' bet on the SB 140 lawsuit, and would reinstate the Judicial Nomination Commission abolished in SB 140 and give laypeople appointed by the governor a super-majority to determine which applicants are forwarded to the governor for appointment.
"The intent of the bill is to have another plan if Senate bill 140 is determined to be unconstitutional," Smith told the committee Thursday morning. "The intent of the bill is to give the governor a wider range of ability to make selections that he would prefer to have appointed to these judicial positions. In the past we've had, it's kind of stacked the other way, and we've ended up with quite a few judges that a lot of us would have considered to be too liberal.
"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."
On the third floor of the Capitol, the Senate on Thursday gave initial approval to House Bill 380, which deals with the Judicial Standards Commission, a five-member panel that handles complaints against judges. Sen. Keith Regier, the Kalispell Republican who sponsored SB 140 and carried HB 380 in the Senate, said during Thursday's hearing the commission has dismissed the large majority of complaints against judges. The bill proposes to make the five members — two judges selected by their peers, one attorney appointed by the Supreme Court and two citizens appointed by the governor — be approved by the Senate, which confirms judicial appointments.
Those who have defended the Judicial Standards Commission this session have argued the majority of complaints are from people who disagree with a judges ruling, a matter to be taken up on appeal rather than through the standards commission.
Sen. Ellie Boldman, D-Missoula, told the Senate the bill was only the next in a series of legislation to politicize the courts.
The bill passed on second reading along party lines, 31-19.
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