U.S. Supreme Court won’t hear legislative subpoena case

The U.S. Supreme Court will not weigh in on the separation-of-powers conflict between the Montana Legislature and the state judiciary that boiled over during a subpoena fight late in the 2021 session, bringing a major political dispute close to its conclusion.

Attorneys for the Legislature filed a cert petition with the court in December arguing that the Montana Supreme Court violated the 14th Amendment when it unanimously invalidated a series of legislative subpoenas for judicial records. The court docket reflects that SCOTUS denied the Legislature’s petition on March 21, though the judges did not explain the decision in writing.

“The Montana Legislature has now been told, by every court at every level, that its actions were outside the law,” said attorney Randy Cox, who has represented Montana Court Administrator Beth McLaughlin in the proceedings, in a statement. “A state district court, the Montana Supreme Court and now the United States Supreme Court all agree that grabbing potentially private and privileged emails by subpoena rather than seeking them through a normal public records request process was improper.”

The subpoena dispute began months ago as a byproduct of separate litigation challenging a law passed in the 2021 session overhauling how the governor can fill vacancies on the judicial bench. Lawmakers learned that a lobby group for the judiciary had conducted polling among district court judges on that bill and others, but McLaughlin, who helped facilitate the polling, hadn’t retained complete records.

The justices have defended the polling as regular practice intended to better shape legislation that affects judiciary functions. None of the members of the state Supreme Court has said they participated in the polls.

But in a political environment already characterized by a degree of mistrust by legislative Republicans of the court system, the inconsistent record retention fed into claims of improper lobbying, deletion of public records and general judicial bias. Lawmakers issued a subpoena to the Department of Administration — not the court system itself — for thousands of pages of records from McLaughlin’s email. McLaughlin filed an emergency petition before the Supreme Court to halt the discovery, arguing that review was needed to ensure that private information possibly related to juvenile cases was not made public. Subpoenas issued to the judges themselves would soon follow.

“The risk here is that there’s private information,” said Cox. “You’re entitled to public information, but you can’t just gather everything with a bucket and throw it out there and hope for the best.”

The case would soon eclipse the original litigation over judicial appointments in its political significance, testing the power of the Legislature to subpoena judicial records. The state Supreme Court would eventually block the subpoenas, though not before the Legislature mounted a failed effort to force the justices to recuse themselves, as the case concerned their own documents.

“We are disappointed by the U.S. Supreme Court’s decision but not surprised given that the court only agrees to hear a tiny fraction of the petitions before them,” said Sen. Greg Hertz, R-Polson, the chair of a select committee investigating judicial practices. “We already withdrew the subpoena last year with the goal of spurring sincere conversations and negotiation between our two coequal branches of government. It now falls to the Legislature to ensure that problems within the judicial branch are fixed and that similar situations of deleting public records, lack of transparency, and pre-judging legislation don’t happen again.”

One key question going forward is what’s to happen with some 2,000 pages of documents that the subpoena shook loose from the Department of Administration before it was blocked. The Supreme Court ordered the documents returned in its July ruling against the subpoena, but the Legislature and its attorneys have avoided complying while they pursued other legal avenues.

Cox said he would communicate to the Department of Justice later this week that it should follow the court order and return the documents.

“I just want them to acknowledge there’s a court order and do the best they can to return things,” he said.

Kyle Schmauch, a spokesperson for legislative majority leadership, said the Legislature “has been in touch with its attorneys about the appropriate next steps regarding compliance with the court’s order.”

Even as this front in the broader conflict between the judiciary and Legislature closes, the saga is not over. In April, the Special Select Committee on Judicial Accountability and Transparency will meet for the first time in months to hold a series of discussions on records retention and judicial policy. McLaughlin and staffers from other state agencies will appear before the committee.

“Presumably, there will be a public records request to Beth, which is what we’ve been saying they should do all along,” Cox said.

And beyond the Legislature, it’s clear the judiciary conflict will play a large role in forthcoming elections to the Montana Supreme Court. Public Service Commission Chairman Jim Brown announced his candidacy for the seat currently held by Justice Ingrid Gustafson last week, pledging to “bring accountability back to the judicial branch” and “to bring consistency to the Court, to avoid the appearance of conflicts of interest, to avoid legislating from the bench, and to be an impartial judge.”

Brown received endorsements from several top Montana Republicans shortly after announcing.