The Montana Attorney General’s Office reiterated its argument in a legal filing Wednesday that the U.S. Supreme Court should take up the legal question of whether Montana Supreme Court justices violated the state Legislature’s due process rights when they declined to recuse themselves from a case concerning lawmakers’ ability to subpoena judicial documents.

In a brief drawing from sources including Winston Churchill and the Magna Carta, attorneys from the AG’s office contended that the Legislature amounted to a person in the context of 14th amendment litigation, and that “every litigant” has the right to “a fair proceeding and a fair tribunal.”

The Department of Justice represents the Montana Legislature in its ongoing battle with the judiciary over the authority of the three branches of government. The filing starts by noting due process originated to “restrain arbitrary power,” and then it quotes Churchill on the Magna Carta: “Here is a law which is above the King and which even he must not break.”

In this case, the Montana Supreme Court unanimously decided subpoenas the Republican-led Legislature issued to justices and to defendant and court administrator Beth McLaughlin for thousands of emails were overly broad and improper — but the Attorney General’s Office argues the justices deciding their own fate makes a “mockery” of due process.

Wednesday’s filing is a response to a brief from McLaughlin’s attorneys arguing that the Supreme Court should not take up the case.

“The Montana Legislature was haled — against its will — into a state court proceeding where the judges doubled as interested parties,” said the reply brief. “To no one’s surprise, the judges vindicated their own interests and obliterated the Legislature’s.”

The case may never be taken up by the U.S. Supreme Court; a University of Montana law professor earlier estimated it takes up just 5 percent of the petitions it receives.

But the filing by the Attorney General’s Office argues the issues raised are “exceptionally important questions,” and the highest federal court should address whether the Legislature has due process rights given a “circuit split” on the matter.

“This unresolved question will only grow in importance due to the explosion of litigation involving state legislatures,” said the reply brief. “In fact, this Court recently confirmed that legislative bodies pursuing legislative subpoenas have rights independent of the other branches of government.”

The reply also references another Montana case heard by the U.S. Supreme Court that marked a significant win for school choice and religious freedom advocates in 2020, Espinoza v. Montana Department of Revenue. In that 5-4 decision, the court ruled a ban on state aid to religious schools didn’t comply with the U.S. Constitution’s protection of the free exercise of religion.

In the brief filed this week, the Attorney General’s Office said McLaughlin’s argument that Montana courts can “evade” the 14th Amendment “so long as they confine their decisions to state-law grounds” was shown to be incorrect in the Espinoza case, which it cited: “Because the elimination of the (scholarship) program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as … resting on adequate and independent state law grounds.”

Generally, the AG’s Office continued its argument the justices should be disqualified from being deciders in the case, and their “disqualifying interests couldn’t be clearer.” Solicitor General David Dewhirst is listed as counsel of record for the Attorney General’s Office.

“The Legislature subpoenaed Respondent’s records to learn the extent of improper judicial communications she possessed but then deleted or failed to retain,” the brief said. “And the Montana Supreme Court — specifically the Chief Justice — appoints and directs Respondent’s duties. So by deciding whether to conceal Respondent’s records, the Justices were really deciding whether to conceal their own.”

The chief justice earlier argued the communications weren’t improper at all but related to ordinary polling a judges association conducts about proposed legislation that affects judiciary function. All members of the supreme court have denied responding to the poll. When lawmakers requested polling results from McLaughlin, she said she had deleted them, spurring a subpoena from the Legislature for thousands of judicial documents from the Department of Administration, which retains some agency files. McLaughlin sued to stop the subpoenas, arguing the court should not cough up all the documents because some could contain private information, such as details about juvenile cases.

Lawmakers also subpoenaed the justices on the Montana Supreme Court, but the court said they were improper.

The Attorney General’s Office argues the justices overstepped when they “thwarted a legislative probe,” accepted jurisdiction improperly, and then quashed their own subpoenas: “Far beyond probable bias, this demonstrated ‘actual bias.’” 

In September, the court denied a petition from the Legislature and Attorney General to rehear the case. Lawyers for Attorney General Austin Knudsen asked the U.S. Supreme Court to take up the subpoena case in December. Since, Republican Gov. Greg Gianforte has filed an amicus brief calling on the U.S. Supreme Court to provide clarity because the lack of it has “allowed the Montana judiciary to lose sight of its obligations” by prejudging proposed legislation and violating due process.

Randy Cox, lead attorney for Beth McLaughlin, had told the U.S. Supreme Court in his earlier brief that the case poses no questions the nation’s highest court needs to decide. He said “the Legislature’s Petition is heavy on rhetoric but light on factual and legal support.”

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