HELENA — In a unanimous ruling, the Montana Supreme Court Wednesday soundly rejected the attempt by legislative Republicans to subpoena internal court emails and documents, saying it clearly exceeds legislative authority.
The decision declared the subpoenas invalid, said they could not be reissued and ordered any emails initially obtained to be returned to the court.
And, in a separate concurring opinion, Justice Dirk Sandefur blasted Republican lawmakers for creating a “recklessly ginned up `crisis’” that he called a “calculated and coordinated partisan campaign” to undermine the nonpartisan judiciary’s role in reviewing the constitutionality of enacted laws.
He said our democracy and its guarantees of personal freedoms and protections depend on the “distinct functions” of all three co-equal branches of government.
“This simple, self-evident principle is more important than ever when, as now, a single political faction overwhelmingly controls the two partisan branches of state government, rendering it quite expedient to irresponsibly attack and attempt to undermine the only non-partisan branch in an effort to attain unitary, unfettered—in effect, authoritarian— power, unconstrained by constitutional limits,” he wrote.
Wednesday’s order is the latest development in a running battle waged by leading Republican officeholders this year against the state Supreme Court and judiciary.
Beginning in early April, GOP lawmakers – with the help of Republican Attorney General Austin Knudsen and Republican Gov. Greg Gianforte’s administration – have sought to obtain emails and documents from the high court, alleging the judiciary is biased against GOP-passed laws that may come before the courts.
Republicans also have created a special legislative committee to investigate the judiciary and the state GOP has sent mailers criticizing the Supreme Court as unethical.
GOP leaders didn’t back off from their criticisms Wednesday, condemning the high court’s order in harsh terms.
State Sen. Greg Hertz, R-Polson and chair of committee investigating the judiciary, said the ruling is “exactly what you’d expect to get from people acting as judges in their own case, protecting their own interests.”
“They have gone way beyond (the subpoena question) and ruled in their own favor on a wide variety of other issues that weren’t before the court,” he said in a statement. “This ruling is poisoned by a massive conflict of interest and it’s judicial activism at its worst.”
A spokesman for Republican Attorney General Austin Knudsen, whose office represented the Legislature in the case, said the Supreme Court justices should have recused themselves from the case because of “an undeniable conflict of interest.”
“The Montana Supreme Court’s unethical behavior in this case is embarrassing for the state and shameful,” said Kyler Nerison.
The first subpoena was issued April 8 by the GOP chair of the Senate Judiciary Committee and executed by the Gianforte administration, obtaining more than 5,000 emails from the court – some of which were distributed to the media.
Six days later, Republican leaders subpoenaed all seven Supreme Court justices, their top administrator and additional documents.
The court blocked those subpoenas while it determined their legality. Republicans withdrew the subpoenas two weeks ago in an attempt to dismiss the case and avoid a ruling, but the court rejected the dismissal request and said it would rule – which it did Wednesday.
Justice Beth Baker wrote the opinion for the majority, saying the subpoenas do not serve a “legislative purpose” and therefore are invalid.
If legislators believe that justices or judges have acted unethically or shown undue bias, they can file a complaint with the Judicial Standards Commission, which is the constitutionally created body to investigate judicial misconduct, the justices said.
Baker also rejected the Legislature’s argument that it was properly investigating whether Court Administrator Beth McLaughlin used government time and resources to lobby the Legislature.
McLaughlin had polled the state’s district judges on their position on a bill, to determine if the Montana Judges Association should take a position on it. The association voted to oppose the measure, which gave Gianforte more power to fill judicial vacancies.
Baker said elected officials, including judges, are not lobbying when they are acting in their official capacity, and that McLaughlin had no personal contact with any legislator. She had conveyed the poll results to the Judges Association’s lobbyist, Baker noted.
Justice Laurie McKinnon also wrote a special concurrence, in which she said the subpoenas must be quashed because they attempt to interfere with and malign a “co-equal and independent branch of government.”
“If members of the judiciary operated under the constant threat of having their work-related communications and judicial communications brought before the Legislature, the judicial branch would be at serious risk of losing its identity as an independent branch of government,” she said.
Any questions of judicial bias or other misconduct by judges or judicial branch employees can be taken to the Judicial Standards Commissions or other bodies, and have no connection to any legislative purpose, she added.
But the strongest condemnation of GOP lawmakers came from Sandefur, in a blistering three-page special concurrence.
He said their complaints about public records, judicial bias or lobbying by the judiciary are a façade meant to obscure their real goal: to undermine the independence of the only branch of government they don’t control.
The case is about protecting the rule of law, regardless of anyone’s political party, and the authority of the judiciary to interpret the “meaning and scope” of constitutional rights, limitations and the duties and powers of each branch of government, Sandefur said.
“The fleeting mandate and accompanying delirium of unitary control of the two political branches of government is no warrant or excuse for reckless disregard of the sacred oath and duty of all elected officials to `support, protect and defend the constitution’ of this state,” he wrote.
