Legislature asks state Supreme Court to reconsider subpoena decision

HELENA — The Montana Legislature has contested a recent state Supreme Court decision about legislative subpoena powers, filing an 11th-hour brief Wednesday afternoon that asks the court to reconsider its July ruling in McLaughlin v. Legislature.

The move extends a legal battle that has already produced hours of arguments and sheaves of court filings, pushing the governmental branches into a political spotlight that began this spring with Republican accusations of judicial misconduct. The court's July ruling brought a level of apparent closure to the dispute, with the justices unanimously deciding the Legislature lacked a "valid legislative purpose" for issuing broad subpoenas meant to investigate the judiciary.

In the lengthy Wednesday filing that exceeds the typical word limit for such a petition, filed on the day of the court's deadline for response, lawyers from the Montana Attorney General's Office raised numerous concerns with the court's opinion. Among them, counsel for the defendants said the order violates the separation of powers and "belittles the Legislature's authority unnecessarily."

"This investigation probes areas the Legislature already regulates (or rightfully could); it doesn't invade the judiciary's exclusive province (deciding cases)," the filing said. "Simply ignoring why we're here doesn't change why we're here — questionable judicial conduct."

Randy Cox, the attorney representing court administrator and plaintiff Beth McLaughlin, declined to comment on the Legislature's filing.

Because the court's own records were at the heart of the subpoenas issued to McLaughlin and, later, the seven Supreme Court justices individually, the Legislature spent much of its petition repeatedly stressing that the court should pursue "negotiation" about the documents with the co-equal legislative branch, citing the federal court case Trump v. Mazars USA LLP.

"Failure to engage in negotiation allows a rivalrous branch to discount the 'significant' legislative interests in inquiring into 'every affair of government' and 'simply walk away from the bargaining table and compel compliance in court,'" counsel for the Legislature wrote, citing the U.S. Supreme Court's decision in the Trump case, in which Congress sought recordings belonging to then-President Donald Trump.

The Montana Supreme Court has repeatedly rejected that line of argument, saying the Legislature failed to negotiate with McLaughlin at the outset when Republican lawmakers subpoenaed the state Department of Administration, which manages all state email servers, for records belonging to the judicial branch. After thousands of pages of documents were released to lawmakers, and shared with members of the media, McLaughlin in April filed an emergency petition with the Supreme Court to temporarily block the Legislature's subpoena until the court could resolve the matter.

Four months later, the Legislature's petition for rehearing punctures any sense of finality the court sought in issuing its July ruling. In its Wednesday filing and other recent documents submitted to the court, counsel for the Legislature indicate that the branch is not finished sparring with the judiciary.

In its request to file a 4,000-word "overlength" petition, the Legislature said the court's July order was extensive and wide-ranging, justifying a longer petition "to fully inform the court for rehearing."

Attorney General Austin Knudsen also wrote that a longer petition is necessary "to adequately prepare the record and address the opinion should the Legislature seek judicial relief after this court issues its decision."

The court, in granting the request, reminded counsel of the limited circumstances in which the court accepts a petition for rehearing, as spelled out in state law.

"Whether the court overlooked a material fact or a question presented by counsel, or the decision conflicts with a statute or controlling decision not addressed by the court are the only grounds available for the court to consider rehearing a case," the court wrote in its Tuesday response.

The Legislature's Wednesday filing presents arguments as to why the court should reconsider the case, relying heavily on a recent opinion from the Office of Legal Counsel within the federal Department of Justice. Such opinions are typically considered binding only for federal executive branch agencies.

Regardless of how the court responds to the Legislature's petition, the filing presented an opportunity for Republicans to reiterate an argument they've emphasized throughout the duration of the case: that the Legislature has broad authority to investigate matters of government, and that the judicial branch is not protected from scrutiny by a coequal branch. Counsel for the Legislature even suggested that the Legislature "may impeach and remove judicial officers without regard" for the Judicial Standards Commission, the constitutionally established venue for investigating judicial misconduct.

In closing, the Legislature's petition seems to appeal for a conciliatory resolution regarding the court records that were the subject of the original subpoenas.

"When one branch of government throws the balance so violently out of kilter as the court does here, our institutions — including the court — are on the brink," the Legislature's lawyers wrote. "The Legislature seeks public records. The court holds them. Their disclosure does not have to be rife with animosity."