Montana justices say lawmakers overstepped in seeking emails

HELENA (AP) — The Montana Supreme Court ruled Wednesday that legislative leaders overstepped their authority in issuing a subpoena for months of emails belonging to the court's administrator, saying the request was not related to a valid legislative interest.

The email issue was raised while the court was considering a legal challenge to a new law that eliminated the Judicial Nomination Commission and allowed the governor to fill judicial vacancies between elections. The law is an element of a longer-term effort by Republican lawmakers to remake what they consider an activist judiciary and to appoint or elect more conservative judges.

Lawmakers had asked Court Administrator Beth McLaughlin for emails involving a poll of state judges over pending legislation, arguing their opinions could affect their impartiality if they were asked to hear legal challenges to new laws. McLaughlin said she had deleted the emails.

Lawmakers then issued a subpoena to the Department of Administration, which includes the state's internet technology division, for nearly all of McLaughlin's emails, including deleted emails.

The director of the Department of Administration "failed to consider the significant confidentiality and privacy interests implicated when she began her blanket release of the entirety of McLaughlin's emails," did not notify McLaughlin of the subpoena or give her a chance to review the materials or challenge their release in court, the order states.

Republican lawmakers argued they needed the emails for a Select Committee that was investigating whether the judicial branch was following its email retention policies and if members were using government time and resources to lobby the legislature on behalf of the Montana Judges Association.

The unanimous court found that the Judicial Standards Commission, not the Legislature, is responsible for investigating allegations of judicial misconduct, such as following email retention and equipment use policies, or expressing opinions about legal matters.

Justices also noted the U.S. Supreme Court has upheld the right for judicial candidates to state their views on disputed legal and political issues, saying that does not affect their ability to make an impartial decision based on law.

Montana's rules of judicial conduct encourage judges to share their "special expertise" with the Legislature on matters concerning the law, the legal system and court administration, the opinion notes.

The justices ordered the emails returned to McLaughlin and said the subpoenas are not valid and cannot be reissued. McLaughlin's attorney, Randy Cox, did not immediately return a phone message seeking comment.

Republican lawmakers had also subpoenaed emails from the justices themselves and asked them to appear before the Select Committee, leading justices to argue the Legislature was trying to create a conflict of interest in an effort to prevent the Supreme Court from ruling on the subpoenas.

"This ruling is exactly what you'd expect to get from people acting as judges in their own case, protecting their own interests," Republican Sen. Greg Hertz said in a statement Wednesday. "Not only did the Montana Supreme Court rule in their own favor on the subpoena question, they have gone way beyond that and ruled in their own favor on a wide variety of other issues that weren't before the court. This ruling is poisoned by a massive conflict of interest and it's judicial activism at its worst."

Less than two weeks after the court upheld the constitutionality of the law eliminating the Judicial Nomination Commission, the Legislature withdrew the subpoenas and asked the Supreme Court to dismiss McLaughlin's challenge.

Hertz, chair of the Select Committee, said at the time he still expected McLaughlin to work with lawmakers to provide emails about the poll.

Lawmakers could have started by negotiating with the Judicial Branch for emails and "might have averted interbranch confrontation," if they had done so, the court said.

In a concurring opinion, Justice Dirk Sandefur wrote that the effort to obtain the court administrator's emails — under the stated reason of investigating whether the Legislature needed to pass a law to set email retention policies for the Judicial Branch — was "an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of the Judicial Branch to hear constitutional challenges to new laws."

Hertz said the Legislature and its attorney will continue to review the ruling.

"We have even more work to do than we thought to ensure that Montana's judicial branch is subject to the same transparency and accountability that governs the executive and legislative branches," he said.

The ruling stated that if the Legislature has such concerns, it should file a complaint with the Judicial Standards Commission.