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Court administrator urges U.S. Supreme Court to toss Legislature's appeal – Daily Montanan

['Darrell Ehrlick', 'More From Author', '- February']

Date: 2022-02-09 00:00:00

Attorneys for Montana Courts Administrator Beth McLaughlin on Wednesday concluded their argument that an appeal from the Montana Legislature’s of an earlier ruling on lawmakers’ subpoena power doesn’t rise to the level of the U.S. Supreme Court with a pithy evaluation rooted in baseball lore.

“The air is shattered by the force of its blow,” the brief concludes, summarizing its opinion of the Montana Attorney General’s appeal and borrowing a line from the poem, “Casey at the Bat.”

Randy Cox, lead attorney for Beth McLaughlin, told the U.S. Supreme Court in a brief this week that despite allegations by the Attorney General and the Legislature, a case stemming from a legislative subpoena for thousands of judicial emails poses no questions the nation’s highest court needs to decide. In other words, McLaughlin’s attorneys said, “the Legislature’s Petition is heavy on rhetoric but light on factual and legal support.”

The 39-page brief argues that the Legislature, a coequal branch of government, cannot frame its case as a federal constitutional issue because the due process clause applies to individuals, and that the state’s Supreme Court was never acting as its own judge because it never adjudicated a series of subpoenas issued to the each justice on the court.

Instead, Cox argued that the Montana Supreme Court was examining the issue of whether subpoenas for McLaughlin’s email were legitimate, ultimately ruling that they were overly broad and did not have a legislative purpose. Because the justices were never called upon to officiate a controversy dealing with themselves, there is no judicial controversy.

The Attorney General’s Office, which opted to represent the Legislature throughout the court battles, has asserted that the Supreme Court has violated its rights by sitting in judgment of the judiciary, something it cannot do. Moreover, Montana Attorney General Austin Knudsen has argued the concept of separation of powers prevents the state’s Supreme Court from limiting its powers of subpoena.

Meanwhile, Montana Gov. Greg Gianforte has filed his own amicus brief in support of Knudsen, urging the U.S. Supreme Court to take up the issue in order to draw a clearer line between how the powers of the judiciary and legislature are separated.

“Lack of clarity in federal law has allowed the Montana judiciary to lose sight of its obligations by engaging in prejudgment of proposed legislation, violating fundamental due process protections,” Gianforte’s brief stated.

The genesis of the case which could now be in the hands of the U.S. Supreme Court was whether the Montana Legislature had the power to obtain thousands of judicial emails. The Legislature had required the production of them within a 48-hour window, with the bulk to be delivered on the weekend by Misty Ann Giles, the Department of Administration director and a political appointee of Gov. Greg Gianforte. The DOA handles email servers for the entire state of Montana, including the judicial branch.

That prompted McLaughlin to make an emergency appeal to the Montana Supreme Court, because she was concerned about confidentiality issues in the email, including personnel matters and youth court information. However, the lawmakers said some of her emails may have proven judicial bias and judges pre-determining laws that were being debated because she often sent out polls at the behest of the Montana Judges Association.

In the brief, Cox said that the subpoena controversy was created in order to neutralize the court’s power by making them a part of the case, only to retreat when it was clear the effort would fail.

“The Legislature’s unilateral attempt to manufacture a conflict by issuing subpoenas to the entire Montana Supreme Court must be seen for what it is,” the brief said. “Much of the same information the Legislature subpoenaed from the justices after this case was filed is being requested in the subpoena issued to McLaughlin…The Legislature’s blanket request to disqualify all members of this court appears directed to disrupt the normal process of a tribunal whose function is to adjudicate the underlying dispute consistent with the law, the constitution and due process.”

Cox portrayed the attorney general’s argument as trying to pound the controversy into a constitutional framework in last-ditch attempt to win the case.

“Political subdivisions of a state may not wield the Fourteenth Amendment as a cudgel to settle political scores in federal court,” the brief said.

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