HELENA — In an escalating political battle between Republican leadership at the Montana Legislature and the state’s judiciary, the Montana Supreme Court Sunday quashed a subpoena lawmakers had used to obtain a cache of internal e-mails from the judiciary.
In an unusual weekend order, the high court blocked any further release of the e-mails until it could rule on whether the legislative subpoena, issued late last week, is proper.
“The actions commanded by the legislative subpoena are … with a substantial potential of the infliction of great harm if permitted to be executed as stated,” wrote Supreme Court Justice Jim Rice in the 6-0 order.
The subpoena, issued by Thursday by Senate Judiciary Committee chairman Sen. Keith Regier of Kalispell, is the latest twist in Republican efforts alleging that some Montana judges are improperly taking sides on political issues – including a new law that gives Republican Gov. Greg Gianforte more power to appoint judges.
The subpoena also is related to a lawsuit currently before the Montana Supreme Court, challenging the constitutionality of the new law giving Gianforte the wider power to appoint judges.
Republican lawmakers, who support the law, have been asking to see internal judicial documents, in an attempt to show whether members of the Supreme Court have expressed opinions about it. Gianforte signed the law just four weeks ago.
Kyle Schmauch, a spokesman for the Republican Senate majority, said Sunday the subpoena was issued after lawmakers learned that some internal judicial emails had been deleted by Supreme Court Administrator Beth McLaughlin after they had requested them.
The subpoena was issued to the director of the state Department of Administration, which oversees the state email and information technology system. It asked for all e-mails sent by McLaughlin between Jan. 4 and April 8.
Director Misty Ann Giles, an appointee of Gov. Gianforte, produced some of those emails as early as Friday afternoon.
“Judicial ethics exist to ensure judges are hearing cases in a fair and impartial manner,” Schmauch said Sunday evening. “These e-mails show a concerning pattern of judicial officers pre-judging matters before they’re heard in court.”
McLaughlin filed an emergency motion with the court Sunday to quash the subpoena and block Giles from further complying. Her motion said her e-mails contain “privileged, confidential and highly sensitive information,” such as communications about specific cases before the high court or other courts and security risks to individual judges.
McLaughlin filed her motion as part of the court case on the new law giving Gianforte expanded power to appoint judges.
In its Sunday order quashing the subpoena, the Supreme Court said it’s not sure that McLaughlin’s motion even belongs as part of the case. But it said that question and other issues can’t be resolved without further arguments, so it set a schedule for court filings over the next three weeks, while quashing the subpoena until further rulings.
Several of the judicial e-mails obtained by GOP leadership, and released on Sunday, revealed judges and staffers discussing bills before the Legislature, and, on some occasions, their opinions about those bills or amendments to those bills.