The Montana Supreme Court on Tuesday said it would hear out the remainder of a legal challenge to the Legislature's subpoena power.
Last week the GOP-led legislative committee that subpoenaed the judiciary abandoned that effort and said they wanted to handle the matter out of court, but the Supreme Court said it was skeptical the Legislature would not deploy such subpoenas again.
Earlier this year Supreme Court Administrator Beth McLaughlin, who challenged the Legislature's subpoena power after her emails were subject to two separate subpoenas, asked the court to deny the Legislature's request to dismiss the case. McLaughlin also asked the high court to bar lawmakers from using such methods of harvesting emails again in the future.
The unanimous Supreme Court order Tuesday said the matter was not moot, as the Legislature suggested it was.
The court's order said lawmakers had made no clear effort to return, destroy or account for the roughly 5,000 judicial emails they received from the Department of Administration without judicial oversight or procedures to protect private information.
"The Legislature's decision to act first, and deal with the legal ramifications later, does not allow it to declare the issue moot when it determines that it has achieved what it wishes," the justices wrote.
The justices also wrote the scope of the legislative subpoena power, when directed toward another branch of government, is both an issue of public interest and a test of the separation of powers. Indeed, Sen. Greg Hertz, a Polson Republican who chairs the Select Committee on Judicial Transparency and Accountability, said last week his committee intends to continue its pursuit of judicial documents.
The court's order states: "while conflicts between the political branches and members of the judicial branch have been exceedingly rare — perhaps a prerequisite to the long-term survival of functioning democracy — it appears in this case that the issue is likely to reoccur."
Hertz said in an emailed statement Tuesday the order meant the Supreme Court would be ruling on a non-existent subpoena.
"We withdrew the subpoenas so we could move forward and negotiate this matter with a co-equal branch of government; however, the court has decided to make another unprecedented move by ruling on a nonexistent subpoena," Hertz said. "The court continues to deepen its massive conflict of interest in this case by once again abandoning normal procedure. All the Legislature has asked for from the court is access to public records from public officials. This extraordinary behavior from the Supreme Court again raises the question: What are they trying to hide?"
A spokesperson for Hertz confirmed the lawmakers had not filed a typical public records request for the records sought nor a complaint with the Montana Commissioner of Political Practices over their concerns about judges' lobbying efforts, but added the Legislature is still in "fact-finding mode."
The GOP-led legislative committee sought McLaughlin's emails as part of an ongoing dispute about internal email polling of judges on pending judiciary-related legislation. McLaughlin deleted some of the email polls, and lawmakers pushed to determine how wide the scope of the polls were, even after the Supreme Court justices told the committee they had not participated in the polling.
During the dispute, lawmakers subpoenaed the Department of Administration, an arm of the executive branch that houses government email servers, for McLaughlin's emails. McLaughlin's attorney tried several routes to claw back the 5,000-some emails, concerned they could expose employee issues, youth court cases, judicial discussions and more, but petitioned the Supreme Court when he got no reply, according to emails contained in court filings. The Supreme Court quashed that subpoena, and the Montana Attorney General's Office, representing the Legislature, said it would defy the court order, accusing the court of impeding on its investigation. Lawmakers then issued subpoenas directly to McLaughlin and all seven justices for their internal communications.
"The history of this litigation has given us reason to be skeptical of the representations by the Legislature and its counsel in this matter," the order states, referencing the Montana Attorney General's Office as the Legislature's counsel. "… Here, the Legislature has failed to to bear its 'heavy burden' of persuading this court that it will not simply reissue the same subpoena to McLaughlin should it be dissatisfied with the results of its efforts to obtain the sought-after materials without litigation."
A spokesperson for the Attorney General's Office said in an email Tuesday the ruling "defied common sense."
"It’s striking that the Supreme Court is escalating the situation while the Legislature continues to seek negotiation for the release of public records," the spokesperson said. "There is no reality in which the Supreme Court justices can reasonably claim to be impartial and unbiased judges in a case involving their own employee and communications — it simply defies common sense."
Justice Jim Rice was the only justice to challenge the subpoena for his records in District Court. After hearing arguments on the matter, Lewis and Clark County District Court Judge Mike McMahon temporarily halted the subpoena, stating in his order he saw the subpoena as a political ploy, not an instrument for legitimate political purposes. Committee lawmakers in this case, too, sought to dismiss Rice's District Court challenge after withdrawing their subpoenas for the justice's records. McMahon has not issued an order on that motion; Rice's attorney did not return a call Tuesday asking if he would oppose lawmakers' motion to dismiss.