A District Court judge on Tuesday temporarily blocked a legislative subpoena for a Supreme Court justice's communications, writing in an order that the Legislature appears to have exceeded its investigative authority.
Lewis and Clark County District Court Judge Mike McMahon wrote in the Tuesday order he would have to be "blind" to not see that the Legislature's recent subpoena for Supreme Court Justice Jim Rice's records is not a legislative effort but instead a clash over records of political interests. In April, Rice challenged the legislative subpoena for his personal and professional communications, and at a hearing on May 10 he argued lawmakers had violated the separation of powers in a campaign to undermine the judicial branch.
McMahon wrote the Legislature has not presented a valid legislative purpose toward its subpoenas, and added that lawmakers were trying to usurp the duty of the Montana Judicial Standards Commission, a board whose authority to investigate allegations of misconduct in the judiciary is enshrined in the constitution.
"Here, the Legislature is not above the law," McMahon wrote. "At this juncture, it appears the Legislature's subpoena to Justice Rice exceeds its legislative investigatory authority."
The Tuesday order does not resolve the case, but halts the subpoena until the case concludes.
House Majority Leader Sue Vinton, a Billings Republican on the legislative committee GOP lawmakers formed last month to investigate the judicial branch, said McMahon's order points to the need for new legislation.
“We expect the justices and their employee to produce public records through one process or another during the course of our investigation. The judicial branch of government does not get to hide public records that every person in the executive or legislative branches would have to produce," Vinton said in a statement. "Sunlight is the best disinfectant. Judge McMahon’s ruling today crystallizes the need for new legislation to bring more transparency and accountability to the judicial branch of government.”
Legislative Republicans in recent months have opened an investigation into the judicial branch, claiming misuse of state resources and failure to retain records as set out in state policy. The investigation launched when GOP lawmakers, digging into allegations of judicial impartiality, found the Supreme Court administrator had deleted an internal judges poll on pending legislation.
The Supreme Court, and Rice's legal challenge against the legislative subpoena for his communications, has asserted the polls were not predetermining judicial opinions on pending legislation, but only providing the judiciary's lobbying efforts on bills that would affect the judiciary's functions. Chief Justice Mike McGrath has also contended there was no misuse of state resources when the polls were conducted on government email accounts because the polls were directly related to the judiciary's work.
The Department of Justice, on behalf of the Legislature, has publicly spurned the Supreme Court's orders putting the brakes on subpoenas earlier in this saga. McMahon, in his order on Tuesday, noted the "caustic" statements against the courts by Attorney General Austin Knudsen, a Republican, and his deputy Kris Hansen. One public statement alleged a "pattern of corruption" in the Supreme Court and another statement to the Montana State News Bureau in April equated the justices to bank robbers.
A spokesperson for the Attorney General said Tuesday the order was "exactly what we expected from a judge ruling on an investigation into judicial misconduct."
The spokesperson also issued something of an ultimatum to the judicial branch.
"The remaining question is what Justice Rice and his colleagues have to hide and why won’t they engage in good faith negotiation with the Legislature to produce public records," the spokesperson said. "The judicial branch has two legitimate options: negotiate with the legislature or produce their public records.”
At a hearing a week earlier, McMahon called the subpoena suspect. Attorneys for the Montana Department of Justice said during the hearing they would be willing to negotiate with Rice and the other justices for the records sought in their investigation. In his order on Tuesday, McMahon wrote the Attorney General's past "caustic" statements showed no evidence the Legislature would negotiate with Rice in good faith.
Asked for a response to McMahon's mention of the Attorney General's tone in public statements, the DOJ spokesperson said it's not the judge's job to interpret the tone of the parties.
"From the beginning, the Supreme Court has refused every one of the Legislature's repeated attempts to negotiate for the release of public records," the spokesperson said.
McMahon's order cites U.S. Supreme Court case law stating legislative investigations must have a legislative purpose to be valid. Said another way, the investigation cannot be used for law enforcement, exposure for the sake of exposure or to publicly punish those under investigation.
The Legislature's subpoena for the records of Rice, the other justices and Supreme Court Administrator Beth McLaughlin states its authority is related to investigating whether employees or members of the judicial branch deleted public records and whether the Montana Judicial Standards Commission is capable of addressing the question of polling judges on pending legislation.
Meanwhile, another case on the same issue is still sitting at the state Supreme Court, where McLaughlin has also challenged the Legislature's subpoena power over an employee of the judiciary. Last week, the Supreme Court denied Attorney General Austin Knudsen's request that the justices all disqualify themselves from hearing a case filed by their own court administrator. The unanimous decision written by Justice Laurie McKinnon stated the Legislature had sought to "manufacture" a conflict of interest when lawmakers subpoenaed the justices for information that could be extracted through the subpoena for McLaughlin's emails, 5,000 of which had already been turned over by the state Department of Administration.