HELENA — Montana’s Republican-controlled Legislature has withdrawn its subpoenas for the emails of Supreme Court justices and the court administrator that included state judges’ opinions about a bill to allow the governor to directly fill judicial vacancies between elections.
The law to eliminate the Judicial Nomination Commission — which the Montana Supreme Court recently upheld as constitutional — is an element of a longer-term effort by Republican lawmakers to remake what it considers an activist judiciary and to appoint more conservative judges.
Gov. Greg Gianforte, a Republican, has said he would use the new law to “appoint judges who will interpret laws, not make them from the bench, and who are committed to the fair, consistent, and objective application of the law.”
The Legislature on Tuesday withdrew the subpoenas seeking the emails and asked the court to dismiss legal challenges to the subpoenas.
Republican lawmakers sought the emails after learning judges had widely opposed the proposal to allow the governor to fill judicial vacancies and that one judge who opposed the legislation was appointed to hear legal challenge against the law. Chief Justice Mike McGrath recused himself because he had asked Gianforte to oppose the bill. The replacement judge was recused, as well.
Randy Cox, the attorney for Court Administrator Beth McLaughlin, told the Montana State News Bureau that he will ask the court to make a ruling on Legislative subpoena authority, citing a need to have it settled. Lawmakers received thousands of McLaughlin’s emails through a subpoena to the Department of Administration, an executive branch agency that includes the state’s information technology services.
The justices temporarily quashed their legislative subpoenas pending a hearing while Justice Jim Rice asked a state judge to block a subpoena seeking his information.
District Judge Michael McMahon of Helena granted Rice a preliminary injunction last month after finding the Legislature had overstepped its authority in subpoenaing documents from the judicial branch. McMahon said that authority belonged with the Montana Judicial Standards Commission, which enforces the Montana Code of Judicial Conduct.
McMahon’s ruling said that while the Legislature has the authority to subpoena people to testify, it does not appear to have the authority to subpoena documents.
Rice’s subpoena “does not represent a run-of-the-mill legislative effort but rather a clash between separate government branches over records of intense Legislative political interest,” McMahon wrote.
Republican Sen. Greg Hertz of Polson is chairman of the Legislature’s Special Select Committee on Judicial Accountability and Transparency. He said Tuesday the committee still expects the judicial branch to release public records.
Rep. Kim Abbott of Helena, one of two Democrats on a six-member select committee, said in an email the committee “was always an overreach that threatened the separation of powers and checks and balances” and that she hoped the withdrawal of the subpoenas “puts an end to expending resources on partisan attacks against a co-equal and independent branch of government.”
Earlier Tuesday, the Montana Supreme Court met to discuss a recent motion by lawmakers asking the justices to recuse themselves from hearing arguments over whether they should turn over their own emails to the Legislature.
The justices denied the first recusal request in a ruling in which Justice Laurie McKinnon wrote that lawmakers were trying to “manufacture a conflict” to avoid receiving a final ruling by the Judicial Branch over the Legislature’s subpoena power.
Lorrie Cole, a judicial assistant to McGrath, said the Supreme Court had no comment on the withdrawal of the subpoenas.
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