The 2021 Legislature and the governor did away with the Judicial Nomination Commission in favor of the governor selection and Senate confirmation of judicial vacancies. That ticked off some lawyers, so they sued to have the new law overturned. The litigation set off a cascade of activities in the Montana government’s legislative, executive and judicial branches.
First, the Legislature sent a subpoena to the governor-appointed director of the Department of Administration on a Friday, ordering her to gather judicial branch emails and deliver them to the Legislature within 48 hours. State staff worked over the weekend and through the night in response to the subpoena. My guess is this new efficiency does not apply for all Montanans and is only reserved for a chosen few — the legislators working on the governor’s behalf to uncover the assumed nefarious intent of our statewide judiciary.
In response to the subpoena, the judicial staff whose emails were subpoenaed objected to the breadth of the subpoena and asked the Supreme Court to halt the dissemination of the emails until a review for confidential or privileged information could occur. I don’t know why confidential or privileged information would be solicited or sent on public email, but ensuring private information isn’t disseminated seems like a rational and responsible thing to do. The attorney general — acting on behalf of the Legislature — disagreed. So, the Montana Supreme Court put a halt to the subpoena wars until it could determine if the scope of the requests fit the purposes for which the records are sought. Seems like a perfectly rational way to bring order to chaos.
The Supreme Court did not tell the Legislature it can’t have the records. It simply said: “your subpoena power isn’t unfettered. You have to follow an orderly process just like everyone else.” Asking for the records was the right thing to do, but every records request must be vetted for confidential and privileged information. With issues as important as a fair and impartial judiciary, more than a haphazard response is required. It is concerning that some emails requested explicitly by the Legislature were deleted by judicial staff and explained as “sloppiness.” Judicial staff stated the emails were deleted two months before the subpoena, but that response doesn’t inspire confidence. Deleted emails raise red flags; “sloppiness” isn’t an excuse that rings true to most Montanans. As a wise judge once told me, “those who have nothing to hide, hide nothing.”
Let’s hope in the process of litigating this issue that the integrity of each branch of government remains intact. Montanans deserve to know what happens behind the curtain of government. A calm, rational investigation erring on the side of transparency will help Montanans make good decisions about all branches of government in the next election.
Tammi Fisher is an attorney, former mayor of Kalispell and host of Montana Values Podcast.
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