NewsMontana Politics


MT Supco rejects GOP attempt to dismiss subpoena case

High court will decide legality of subpoenas
Montana Supreme Court
Posted at 4:29 PM, Jun 29, 2021
and last updated 2021-06-29 19:47:17-04

HELENA — A unanimous Montana Supreme Court Tuesday rejected legislative Republicans’ attempt to dismiss a case that could define lawmakers’ power to obtain internal court documents, saying it’s still a case of “great public interest.”

“The matter at hand is one of serious public interest, is likely to reoccur and is in need of a ruling to guide public officers in the performance of their duties,” Chief Justice Mike McGrath wrote for the court.

Just last week, Republicans withdrew subpoenas they had issued in April, that sought and obtained some internal court documents that they alleged might show judicial bias against GOP-passed laws before the court.

The Supreme Court had blocked the subpoenas and prevented release of further documents, while it decided their legality.

Republicans said the withdrawal made the issue moot and asked to dismiss the case – but the high court rejected that request Tuesday.

The court now will decide the scope of the Legislature’s subpoena power, which GOP lawmakers used in April to obtain thousands of emails from the court without its permission or review.

Republican state Sen. Greg Hertz of Polson, who's chairing a special committee created by GOP leadership to investigate the judiciary, said Tuesday's ruling by the court is "another unprecedented move by ruling on a non-existent subpoena."

"The court continues to deepen its massive conflict of interest in this case by once again abandoning normal procedure," he continued, in a statement. "All the Legislature has asked for from the court is access to public records from public officials."

GOP leaders and the state party have steadily escalated their political battle against the high court and the judiciary, appointing the special committee and sending out mailers criticizing the Supreme Court as unethical.

The battle began in the wake of a new law giving GOP Gov. Greg Gianforte more power to fill state judicial vacancies, enacted in February by Republican majorities. Some judges had opposed the effort, including McGrath.

Republicans alleged the high court, which was considering a challenge to the law, could be biased against the new law, and used the subpoenas to acquire court emails on the subject.

Yet earlier this month, the Supreme Court upheld the judicial-appointment law that began the controversy. In a special concurring opinion, Justice Jim Rice blasted both the Legislature and Republican Attorney General Austin Knudsen for their actions in the case, saying they had shown contempt for the court and threatened its legitimacy.

In asking to dismiss the case, Republicans said last week they still intended to investigate the judiciary, but that they’re willing to negotiate with high court over the release of some documents.

But In Tuesday’s order, the Supreme Court had few kind words for the Legislature or its counsel (the attorney general's office), saying “the history of this litigation has given us reason to be skeptical of the representations by the Legislature and its counsel.”

It noted that the Legislature obtained thousands of Supreme Court emails, without any procedural protections for privacy concerns, and rejected attempts by Supreme Court Administrator Beth McLaughlin’s attorney to resolve the dispute.

It also said the Legislature has not committed to not issuing additional subpoenas, if the Supreme Court were to drop the case and not rule on the subpoenas’ legality.

“The Legislature has failed to bear its `heavy burden’ of persuading this court that it will not simply reissue the same subpoena … should it be dissatisfied with the results of its efforts to obtain the sought-after materials without litigation,” McGrath wrote.

State District Court Judge Don Harris of Billings sat in for Rice on Tuesday’s order.