Montana high court will decide on legislative subpoena power

June 29, 2021 GMT

HELENA, Mont. (AP) — The Montana Supreme Court said Tuesday that it will decide whether lawmakers had the power to subpoena the emails of the court’s administrator.

The justices unanimously denied the Legislature’s request to dismiss a motion from court administrator Beth McLaughlin asking if lawmakers had the right to subpoena her emails. The Legislature argued last week that the issue was moot because they have withdrawn the subpoena.

“The scope of the legislative subpoena power when directed towards another branch of government is clearly an issue of great public interest,” Chief Justice Mike McGrath wrote in the 7-0 decision.

It appears the issue is likely to reoccur and a ruling will guide public officials in their duties in the future, the justices said.

“We withdrew the subpoenas so we could move forward and negotiate this matter with a coequal branch of government. However, the court has decided to make another unprecedented move by ruling on a nonexistent subpoena,” Republican Sen. Greg Hertz said in a statement. “The court continues to deepen its massive conflict of interest in this case by once again abandoning normal procedure.”


The Supreme Court has argued that the Legislature tried to create a conflict of interest by issuing subpoenas for justices’ emails.

The issue over the emails was raised while the court heard a legal challenge to a new law allowing the governor to fill judicial vacancies between elections.

Lawmakers sought emails from McLaughlin, the court administrator, to learn which judges had expressed opinions about the legislation to eliminate the Judicial Nomination Commission. Lawmakers said they were concerned judges who had expressed an opinion might be asked to hear legal challenges to new laws that affect the judiciary.

McLaughlin said she had deleted the emails.

The Legislature then issued a subpoena to the Department of Administration for her emails, including deleted ones, without notifying McLaughlin. The department, which oversees the state’s information technology unit, turned over thousands of McLaughlin’s emails before she learned about the subpoena and was able to get a Supreme Court order temporarily stopping it.

Less than two weeks after the court upheld the constitutionality of the law eliminating the Judicial Nomination Commission, the Legislature withdrew subpoenas it issued to McLaughlin and the justices and asked the court to dismiss her challenge.

“The Legislature’s decision to act first, and deal with the ramifications later, does not allow it to declare the issue moot when it determines that it has achieved what it wishes,” the chief justice wrote.

McLaughlin also argued lawmakers still have emails that were turned over to them by the Department of Administration.


“The Legislature has not made the Court aware of any effort to return, destroy, account for, or otherwise addressed the thousands of unredacted Judicial Branch emails that it previously obtained, without judicial oversight or procedural protections, through the DOA,” the ruling says.

On Tuesday, Sen. Hertz argued that the emails should be made public.

“All the Legislature has asked for from the Court is access to public records from public officials,” he said. “This extraordinary behavior from the Supreme Court again raises the question: What are they trying to hide?”

The Legislature has not persuaded the 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,” the order says.

McGrath has said it has long been the accepted practice that state and local elected officials and staffers talk to lawmakers to support or oppose legislation while acting in their official capacities.