Opposition Brief — The Montana State Legislature, et al., Petitioners v. Beth McLaughlin
Supreme Court briefFeb 9, 2022
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix 1
Intervenor Beth McLaughlin’s
Emergency Motion to Quash and
Enjoin Legislative Subpoena Duces
Tecum in the Supreme Court of the
State of Montana
(April 11, 2021) . . . . . . . . . . . . . . . 1a
Appendix 2
Intervenor Beth McLaughlin’s
Emergency Supplementation of
Emergency Motion to Quash and
Enjoin Legislative Subpoena Duces
Tecum in the Supreme Court of the
State of Montana
(April 11, 2021) . . . . . . . . . . . . . . 31a
Appendix 3
Montana
State Legislature
Subpoena to Director Misty Ann
Giles
(April 13, 2021) . . . . . . . . . . . . . . 41a
Appendix 4
Emergency Motion to Quash
Revised Legislative Subpoena in
the Supreme Court of the State of
Montana
(April 15, 2021) . . . . . . . . . . . . . . 43a
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Appendix 5
Petition for Declaratory and
Injunctive Relief; and Emergency
Request to Quash or Enjoin
Legislative Subpoena Pending
Proceedings in the Montana First
Judicial District Court, Lewis and
Clark County
(April 19, 2021) . . . . . . . . . . . . . . 69a
Appendix 6
Declaration of Jim Rice in
Montana First Judicial District
Court, Lewis and Clark County
(April 19, 2021) . . . . . . . . . . . . . . 99a
Appendix 7
Order in Montana First Judicial
District Court, Lewis and Clark
County
(April 19, 2021) . . . . . . . . . . . . . 102a
Appendix 8
The Minority Report on Judicial
Transparency and Accountability
of the Special Joint Select
Committee on Judicial
Transparency and Accountability
to the 67th Montana Legislature
(April 2021) . . . . . . . . . . . . . . . . 104a
Appendix 9
Petitioner’s Notice of Additional
Legislative Subpoena in the
Supreme Court of the State of
Montana
(April 26, 2021) . . . . . . . . . . . . . 110a
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Appendix 10
Petitioner’s
Response to
Respondent’s Motion to Dismiss in
the Supreme Court of the State of
Montana
(April 28, 2021) . . . . . . . . . . . . . 116a
Appendix 11
Petitioner’s
Response to
Respondent’s Motion to Disqualify
Justices in the Supreme Court of
the State of Montana
(May 10, 2021) . . . . . . . . . . . . . . 137a
Appendix 12
Preliminary Injunction Order in
Montana First Judicial District
Court, Lewis and Clark County
(May 18, 2021) . . . . . . . . . . . . . . 145a
Appendix 13
Petitioner’s
Response to
Respondent’s Petition for
Rehearing in the Supreme Court of
the State of Montana
(June 4, 2021) . . . . . . . . . . . . . . 171a
Appendix 14
Petitioner’s
Response to
Respondent’s Motion to Dismiss as
Moot in the Supreme Court of the
State of Montana
(June 24, 2021) . . . . . . . . . . . . . 175a
Appendix 15
Petitioner’s Response to the
Montana State Legislature’s
Petition for Rehearing in the
Supreme Court of the State of
Montana
(September 2, 2021). . . . . . . . . . 201a
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Appendix 16
Declaratory Judgment Petition
Order in Montana First Judicial
District Court, Lewis and Clark
County
(October 6, 2021) . . . . . . . . . . . . 211a
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APPENDIX 1
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0125
[Filed: April 11, 2021]
__________________________________________
DOROTHY BRADLEY, BOB BROWN,
)
MAE NAN ELLINGSON, VERNON
)
FINLEY, and MONTANA LEAGUE OF
)
WOMEN VOTERS,
)
)
Petitioners,
)
)
v.
)
)
GREG GIANFORTE, Governor of the
)
State of Montana,
)
)
Respondent.
)
__________________________________________)
INTERVENOR BETH McLAUGHLIN’S
EMERGENCY MOTION TO QUASH AND
ENJOIN LEGISLATIVE SUBPOENA DUCES
TECUM
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P.O. Box 9199
2a
Missoula, MT 59807-9199
Tel: (406)543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
Counsel for Beth McLaughlin
MOTION
This emergency motion seeks an immediate ruling
from the Court to quash and enjoin a Subpoena issued
by the Montana State Legislature calling for the
production of emails and documents sent to or received
by the Court Administrator of the Montana Supreme
Court that likely contain private medical information,
personnel matters including employee disciplinary
issues, discussions with judges about ongoing
litigation, information regarding Youth Court cases,
judicial work product, ADA requests for disability
accommodations, confidential matters before the
Judicial Standards Commission, and information that
could subject the State of Montana to liability were
protected information exposed. Court Administrator
Beth McLaughlin (“McLaughlin”) is informed and
believes the Department of Administration is actively
working over the weekend to produce this privileged,
confidential, and highly sensitive information, as
commanded by the Subpoena. This, in turn, would
deprive McLaughlin and those persons affected by the
Subpoena of any opportunity to seek relief and avoid
severe irreparable harm. Thus, McLaughlin
respectfully requests the Court issue an Order on this
motion over this weekend, or as soon as reasonably
possible. McLaughlin understands this may require the
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Court to confer outside its normal schedule, but
respectfully submits that such relief is warranted by
the extenuating circumstances and extreme
time-sensitivity of this matter.
Pursuant to Mont. R. App. P. 14(2), (4), Mont. Code
Ann. §§ 3-2-205, 26-2-401, and this Court’s inherent
authority to control original proceedings, McLaughlin1
moves the Court to issue an immediate order:
(1) quashing an April 7, 2021 Subpoena served upon
the Montana Department of Administration by the
Montana State Legislature, and (2) enjoining the
Montana Department of Administration and its
Director from complying with, producing, or otherwise
disclosing the documents and information requested in
the Subpoena. The Subpoena, attached hereto as
Exhibit A, demands the production of “[a]ll emails and
attachments” and “[a]ny and all recoverable deleted
emails sent and received by Court Administrator Beth
McLaughlin between January 4, 2021 and April 8,
2021.” (Ex. A (emphasis added); Declaration of Beth
McLaughlin, Exhibit B, ¶¶ 4, 5.) Failure to grant the
requested relief will result in severe irreparable harm
to individual privacy rights and potentially give rise to
a constitutional crisis.
This motion is supported by the following brief and
proposed order (attached as Exhibit C). Counsel for the
Montana Legislature and for the Department of
Administration have been contacted with respect to
1
As one with an asserted interest who has voluntarily appeared in
this proceeding, McLaughlin qualifies as an Intervenor under
Mont. R. App. 2(1)(f).
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this motion, and have not responded. The letter to
counsel is attached as Exhibit D. Counsel for
Petitioners has been contacted and does not object.2
BACKGROUND
This emergency request arises from discovery
efforts to obtain information for use in this original
proceeding. Specifically, the Montana State Legislature
previously issued a request to McLaughlin for
information on a poll of members of the Montana
Judges Association (“MJA”) pertaining to SB 140. (Ex.
B, ¶ 3.) Unsatisfied with her response, Respondent
asked the Court to stay these proceedings pending
release of further information relating to the MJA poll.
On April 7, 2021, this Court denied the motion. The
Order stated, in pertinent part: (1) Judge Krueger, who
had participated in the poll, had voluntarily recused
himself from this case; (2) “no member of this Court
participated in the aforementioned poll”; and (3) “the
six undersigned members of this Court will consider
the case on the Petition and the responses
submitted. . . .” (April 7, 2021 Order at 1, 2.)
The very next day, April 8, 2021, the Montana State
Legislature issued a Subpoena to Director Misty Ann
Giles of the Montana Department of Administration,
2
McLaughlin also seeks leave to file an overlength brief. The
applicable word limit of 1,500 words, pursuant to Mont. R. App.
16(3), is insufficient under the circumstances of this case. Given
the emergency nature of McLaughlin’s motion, she had no
opportunity to seek the Court’s leave in advance.
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not to the judicial branch, requiring her to appear the
next day and produce:
(1)
All emails and attachments sent and
received by Court Administrator Beth
McLaughlin between January 4, 2021 and
April 8, 2021 delivered as hard copies and
.pst digital files.
(2)
Any and all recoverable deleted e-mails
sent or received by Court Administrator
Beth McLaughlin between January 4,
2021 and April 8, 2021 delivered as hard
copies and .pst digital files.
(3)
This request excludes any emails and
attachments related to decisions made by
the justices in disposition of final opinion.
(Ex. A.) Although the Subpoena demanded the
production of all emails and attachments on Friday,
April 9, 2021, a one-day turnaround, Director Giles
reached an agreement whereby the documents would
be compiled this weekend and produced, presumably,
on Monday or perhaps sooner during the weekend. (Ex.
B, ¶ 6.) McLaughlin is informed and believes that
Director Giles intends to comply with the Legislature’s
Subpoena. (Ex. B, ¶ 6.)3
In her capacity as Court Administrator, McLaughlin
receives a wide variety of emails and attachments that
3
The Subpoena seeks records of the judicial branch but only
provide a “courtesy copy” to McLaughlin the afternoon of April 9,
2021. McLaughlin has yet to receive any response to her request
to delay the matter while she sought legal advice.
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implicate the rights and privileges of other parties. (Ex.
B.) These emails and attachments include, but are not
limited to:
• Information pertaining to medical information
both for employees and elected officials.
• Discussions of potential employee disciplinary
issues including requests from employees and
judges to discuss pending discipline.
• Discussions with judges about case processing
and ongoing litigation in pending or potential
cases.
• Information related to complaints pending
before the Judicial Standards Commission.
• Information or documentation of Youth Court
Case information in my role as supervisor of the
Youth Court bureau chief.
• Information about potential on-going security
risks to individual judges including
communications with law enforcement.
• Copied on exchanges between judges in which
advice about case law and potential decisions
were being sought from other judges.
• Copied on exchanges between judges in which
information was exchanged about judicial work
product.
• Requests from members of the public for
disability ac c o m m o d at i ons including
documentation of the disability.
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• Other unknown items that could expose the
state and Judicial Branch to liability if protected
information is exposed.
(Ex. B, ¶ 7.)
The Subpoena is broad enough to include the
privileged and confidential documents identified above.
It deliberately seeks all McLaughlin emails, no matter
the subject, with one limited and vague exception. As
such, severe and irreparable harm will occur if the
Subpoena is not immediately quashed and enforcement
enjoined.
ANALYSIS
This Court is authorized under Mont. R. App. 14(2)
and (4) to decide requests for injunctive relief in
original proceedings. It likewise has broad power in the
administration of discovery. Asencio v. Halligan, 395
Mont. 522, 437 P.3d 113 (2019). That broad power rests
with this Court where, as here, the matter is the
subject of an original proceeding. Mont. R. App. P. 14.
The broad discretion to control proceedings includes
the power to protect against subpoenas that seek
irrelevant, improper, illegal, or impertinent
information. Mont. Code Ann. § 26-2-401. If a subpoena
seeks “confidential” information, courts generally may
“quash or modify” a subpoena “protect a person subject
to or affected by a subpoena.” Mont. R. Civ. P.
45(d)(3)(B). Most importantly, a court “must” modify or
quash a subpoena that “requires disclosure of
privileged or other protected matter, if no exception or
waiver applies.” Mont. R. Civ. P. 45(d)(3)(A) (emphasis
added). The Court also has authority to “preserve the
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status quo” by issuing immediate injunctive relief ex
parte. See generally Mont. Code Ann. § 3-2-205; Boyer
v. Karagacin, 178 Mont. 26, 32, 582 P.2d 1173, 1177
(1978) (“It is well settled that the purpose of a
temporary restraining order is to preserve the status
quo until a hearing can be held to determine whether
an injunction pendente lite should be granted.”).4
Moreover, a person subject to a subpoena has
certain rights under Montana law which this Court has
the authority to protect and enforce. Mont. Code Ann.
§§ 26-2-101, 26-2-401. Importantly, “[i]t is the right of
a witness to be protected from irrelevant, improper”
questions and “to be examined only as to matters legal
and pertinent to the issue.” Mont. Code Ann. § 26-2-401
(emphasis added.) See also Mont. R. Civ. P. 45(d)(3)(A)
and (B).
Here, the Subpoena’s breadth raises numerous
issues and compliance would inflict irreparable harm.
Given the Court’s recent ruling, any additional
information that might exist regarding the MJA poll is
irrelevant and thus improper under Mont. Code Ann.
§ 26-2-401. Yet, the Legislature made no attempt to
limit the Subpoena’s scope to even that topic, perhaps
recognizing that doing so would be regarded as an
end-around the Court. Instead, the Subpoena demands
the production of “all emails and attachments,” existing
4
Although the Montana Rules of Appellate Procedure do not
contain specific rules regarding subpoenas (like Mont. R. Civ. P.
45), the procedure and protections of Rule 45 are at the very least
instructive. After all, the importance of consistency in the handling
of—and protections against—subpoenas is self-evident.
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or deleted, “sent and received by Court Administrator
Beth McLaughlin” during a three-month time period.
(Ex. A (emphasis added).) The only exception, to the
extent it can be meaningfully understood and
implemented, is narrow, and applies to “decisions made
by the justices in disposition of final opinion.” (Ex. A.)
1. The Subpoena Violates Separation of
Powers and Exceeds Any Proper Scope.
The Legislature’s power to issues subpoenas is
finite. As recently discussed by the United States
Supreme Court in Trump v. Mazars USA, LLP,
subpoena power is “justified solely as an adjunct to the
legislative process,” and is therefore subject to several
limitations. 140 S. Ct. 2019, 2031-32 (2020). Foremost
among those is that “the subpoena must serve a valid
legislative purpose.” Id., quoting Quinn v. United
States, 349 U. S. 155, 161, 75 S. Ct. 668, 99 L. Ed. 964
(1955). It must “concern a subject on which legislation
could be had.” Id. See also State ex rel. Joint Comm. on
Gov’t & Fin. v. Bonar, 230 S.E.2d 629, 629 (W. Va.
1976) (legislature must show: “(1) that a proper
legislative purpose exists; (2) that the subpoenaed
documents are relevant and material to the
accomplishment of such purpose”).
Based on the cornerstone constitutional principle of
separation of powers into three coordinate branches,
see Morrison v. Olson, 487 U.S. 654, 693-94 (1988), the
legislative subpoena power is most limited when
directed toward the judicial or executive branches.
Sullivan v. McDonald, 2006 Conn. Super. LEXIS 2073,
at *20 (Super. Ct. June 30, 2006) (“a subpoena power
from one governmental branch to another is very
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limited…”). In Sullivan, the Court considered an
analogous legislative subpoena that demanded
testimony from a judicial officer. The Court deemed the
subpoena a dangerous legislative foray into the
independent judiciary:
For the foregoing reasons, the court grants
the plaintiff’s motion to quash the subpoena and
issues a temporary injunction preventing the
defendants from compelling the attendance of
Justice Sullivan at this hearing in the future.
The failure to rule in this manner would allow
unbridled power in any legislative committee to
compel the attendance of sitting judicial officers.
Such a ruling would cast a chilling effect upon
the independence of the judiciary
Id., * 20.
Here, the Legislature attempts to use its limited
subpoena power to obtain judicial communications—
not for a legislative purpose or a “subject upon which
legislation could be had,” Trump, 140 S. Ct. at 2031-32,
but for a litigation purpose. Indeed, the Legislature
asks for judicial records from the executive branch. The
purpose originally offered by the Legislature for the
MJA poll information was that it might shed light on
how certain justices presiding over this case viewed SB
140. But the Court has already issued an Order stating
none of the six justices who will continue presiding over
this case participated in the poll. There is, therefore, no
arguable “legitimate legislative purpose” for continuing
to seek the MJA poll information. See id. The Subpoena
should be quashed on this basis alone.
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Even if there was a legitimate legislative purpose to
seek the MJA poll information, there is no conceivable
justification for demanding all of McLaughlin’s emails
and attachments on any and all topics or for seeking
them from the executive branch. Needless to say, one
branch of government must have some basis to require
another branch to produce its communications. Here,
there is none.
2. Judicial Deliberations and Communications
Are Not the Publicly Available Information of
a “Public Body.”
If the Legislature’s argument is that the judicial
emails are open to the public under the rubric of the
right to know, that argument is wrong. The
constitutional history and the discussion of the term
“public body,” this Court has previously noted that
while the judiciary is a branch of the government, and
thus a “governmental body,” it is not a “public body”
subject to the open deliberation requirements set forth
in article II, section 9. See Order, In re Selection of a
Fifth Member to the Montana Districting
Apportionment Commission, August 3, 1999 (Leaphart,
J., specially concurring) (arguing that framers did not
intend to include the judiciary within the term “public
body” and that confidentiality of judicial deliberations
was essential to operation of independent judiciary).5
See also, e.g., Mont. Code Ann. § 2-3-203(5) (“The
5
The Order was cited and discussed in Goldstein v. Commission on
Practice of the Supreme Court, 2000 MT 8, ¶ 48, 97, n. 3, 297 Mont.
493, 995 P.2d 923.
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supreme court may close a meeting that involves
judicial deliberations in an adversarial proceeding.”).
3. J u d i c i a l
Deliberations
and
Communications Are Protected by the
Judicial Privilege.
The privilege that safeguards judicial
communications is well-established across the country.
“[T]he need to protect judicial deliberations has been
implicit in our view of the nature of the judicial
enterprise since the founding.” In re Enf’t of a
Subpoena, 972 N.E.2d 1022, 1032 (Mass. 2012). Indeed,
one court observed the only reason there is not more
authority on the subject is “undoubtedly because its
existence and validity has been so universally
recognized.” Kosiorek v. Smigelski, 54 A.3d 564, 578
n.19 (Conn. App. Ct. 2012) (internal quotations and
citations omitted). See also United States v. Daoud, 755
F.3d 479, 483 (7th Cir. 2014) (“And of course judicial
deliberations, though critical to the outcome of a case,
are secret.”).
As a federal district court recently explained in
granting a motion to quash a similar subpoena, the
bedrock principles underlying this judicial privilege are
compelling:
The privilege generally serves three
underlying purposes: (1) ensuring the finality of
legal judgments; (2) protecting the integrity and
quality of decision-making “that benefits from
the free and honest development of a judge’s own
thinking ... in resolving cases before them”; and
(3) protecting independence and impartiality
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and permitting judges to decide cases without
fear or favor.
Taylor v. Grisham, 2020 U.S. Dist. LEXIS 207243, at
*6 (D.N.M. Nov. 4, 2020) (citing Cain v. City of New
Orleans, U.S. Dist. LEXIS 169819, (E.D. La. Dec. 8,
2016)).
The D.C. Circuit similarly explained:
. . . [P]rivilege against public disclosure or
disclosure to other co-equal branches of
Government arises from the common sense
common law principle that not all public
business scan be transacted completely in the
open, that public officials are entitled to the
private advice of their subordinates and to
confer among themselves freely and frankly,
without the fear of disclosure, otherwise the
advice received and the exchange of views may
not be as frank and honest as the public good
requires.
See also Soucie v. David, 448 F.2d 1067, 1080-81 (D.C.
1971).
For all of these reasons, “other courts, State and
Federal . . . when faced with attempts by third parties
to extract from judges their deliberative though
processes, have uniformly recognized a judicial
deliberative privilege.” In re Enf’t of a Subpoena, 972
N.E.2d at 1032 (listing numerous authorities
recognizing judicial deliberative immunity). Here, of
course, this Subpoena attempts to extract information
by going to the computers of the executive branch,
without even asking the judicial branch.
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Consistent with these principles, courts in other
jurisdictions have repeatedly rejected attempts to
invade the judicial decision-making process through
subpoenas or other means. See, e.g., In re Certain
Complaints Under Investigation by an Investigating
Comm., 783 F.2d 1488, 1517-1520 (11th Cir. 1986)
(confidentiality protects judge’s independent reasoning
from improper outside influences); United States v.
Nixon, 418 U.S. 683, 705, 41 L. Ed. 2d 1039, 94 S. Ct.
3090 (1974) (“those who expect public dissemination of
their remarks may well temper candor with a concern
for appearances and for their own interests to the
detriment of the decision making process.”);
Commonwealth v. Vartan, 733 A.2d 1258, 1264 (Pa.
1999) (protection of judicial communications benefits
the public, not the individual judges and staff); Thomas
v. Page, 837 N.E.2d 483, 490-91 (Ill. App. 2005) (“Our
analysis leads us to conclude that there exists a judicial
deliberation privilege protecting confidential
communications between judges and between judges
and the court’s staff made in the course of the
performance of their judicial duties and relating to
official court business.”).
Although there is little direct Montana authority on
the deliberative privilege, there is no authority
suggesting Montana would be an outlier and take a
different approach than other jurisdictions. To the
contrary, Montana law already provides very similar
protections. See, e.g., Mont. Code Ann. § 2-6-1002
(“Confidential information” includes information
related to judicial deliberations in adversarial
proceedings); Mont. Code Ann. § 2-3-203(5) (“The
supreme court may close a meeting that involves
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judicial deliberations in an adversarial proceeding.”);
Order, In re Selection of a Fifth Member to the Montana
Districting Apportionment Commission, August 3, 1999
(Leaphart, J., specially concurring) (explaining that
confidentiality of judicial deliberations is essential to
the operation of independent judiciary).
The judicial privilege and its underlying policies
weigh heavily in favor of quashing/enjoining the
Subpoena in this case. As McLaughlin’s Declaration
makes clear, the Subpoena will reach a variety of
communications that relate to the judicial deliberative
process. (Ex. B, ¶ 7 (“[d]iscussions with judges about
case processing and ongoing litigation in pending or
potential cases”; “[c]opied on exchanges between judges
in which advice about case law and potential decisions
were being sought from other judges”; “[c]opied on
exchanges between judges in which information was
exchanged about judicial work product”).) To force the
extensive disclosure of such communications rings a
bell that cannot be un-rung. Separate and apart from
the disclosures specific to this case, the Subpoena
would send an unmistakable message to Montana’s
judiciary: “Your communications are not protected.”
This has precisely the chilling effect on judges and
their staffs that the judicial privilege is designed to
prevent.
The Subpoena’s exception for communications
“related to decisions made by the justices in disposition
of final opinion” does nothing to mitigate the violation
of judicial privilege. The exception is incredibly narrow
and applies only to justices’ decisions in “disposition of
final opinion.” (Ex. A (emphasis added).) Whether this
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exception protects communications in the all-important
deliberative process that precedes a “disposition of final
opinion” is anyone’s guess.
4. The Subpoena Violates Multiple Other
Rights and Privileges.
Apart from the judicial privilege, the biggest issue
is that the Subpoena reaches all of McLaughlin’s
emails no matter who or what is in the email. This is
an egregious disregard of a host of other privileges and
rights are implicated by the Subpoena. First and
foremost is the fundamental right to privacy of third
parties, protected under Article II, Section 10’s
mandate that “[t]he right of individual privacy is
essential to the well-being of a free society and shall
not be infringed without the showing of a compelling
state interest.” Mont. Const. Art. II, § 10; see also
Missoulian v. Board of Regents, 207 Mont. 513, 522,
675 P.2d 962, 967 (1984).
Similarly, the Subpoena encompasses confidential
personnel information (Ex. B, ¶ 7 (“[d]iscussions of
potential employee disciplinary issues including
requests from employees and judges to discuss pending
discipline”)), despite well-settled law that public
employees have a specific right to privacy in
non-disclosure of employment personnel records,
including those regarding internal disciplinary matters
and other personally sensitive information. City of
Bozeman v. McCarthy, 2019 MT 209, ¶ 17, 397 Mont.
134, 447 P.3d 1048; see also State ex rel. Great Falls
Tribune Co. v. Eight Judicial Dist. Court, 238 Mont.
310, 319, 777 P.2d 345, 350 (1989) (individual’s right of
privacy with respect to employment evaluations is
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“paramount” when compared with the public’s right to
know).
The Subpoena requires production of medical
information the State is precluded from disclosing
under state and federal law. (Ex. B, ¶ 7 (“[i]nformation
pertaining to medical information both for employees
and elected officials”; “[r]equests from members of the
public for disability accommodations including
documentation of the disability”).) Not only does Article
II, § 10 protect private health care information and
medical records, the Montana statute specifically
provides that “health care information is personal and
sensitive information that if improperly used or
released may do significant harm to a patient’s interest
in privacy and health care or other interests[.]” Mont.
Code Ann. § 50-16-502. As this Court has explained, “If
the right of informational privacy is to have any
meaning it must, at a minimum, encompass the
sanctity of one’s medical records.” State v. Nelson, 238
Mont. 231, 242, 941 P.2d 441, 448 (1997). This is
consistent with federal health care privacy laws
precluding the disclosure of health care information
except under limited and carefully specified
circumstances. See Health Insurance Portability and
Accountability Act of 1996, 45 C.F.R. 164.102, et seq.
The demanded information is confidential, and its
disclosure will likely subject the State to liability.
Medical information is completely irrelevant to this
proceeding, or indeed any legitimate legislative
purpose.
The Subpoena also encompasses information
matters before the Judicial Standards Commission.
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(Ex. B, ¶ 7 (“[i]nformation related to complaints
pending before the Judicial Standards Commission
pertaining to medical information both for employees
and elected officials”).) Rule 7, Rules of the Judicial
Standards Commission provides, “All paper filed
herewith and all proceedings before the Commission
shall be confidential[.]” See also Mont. Code Ann.
§ 3-1-1105; Harris v. Smartt, 2002 MT 239, ¶ 40, 311
Mont. 507, 57 P.3d 58.
The requested information would also encompass
“information about potential on-going security risks to
individual judges including communications with law
enforcement.” (Ex. B, ¶ 7.) Security information
“necessary to maintain the security and integrity of
secure facilities or information systems owned by or
serving the state” constitutes “confidential information”
prohibited from disclosure. Mont. Code Ann.
§ 2-6-1002.
CONCLUSION
For the reasons stated, McLaughlin requests the
Court grant her Motion to Quash and Enjoin
Legislative Subpoena Duces Tecum. A proposed Order
is attached hereto for the Court’s consideration.
Dated this 10th day of April 2021.
BOONE KARLBERG P.C.
\s\ Randy J. Cox
Randy J. Cox
[*** Certificates omitted for printing purposes ***]
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EXHIBIT A
MONTANA STATE LEGISLATURE
SUBPOENA
WITNESS: Director Misty Ann Giles
MT Dept. of Administration
125 N. Roberts St.
Helena, Montana 59620
THE MONTANA STATE LEGISLATURE, to
Director Misty Ann Giles.
You are hereby required to appear at the Montana
State Capitol Building, room 303A, in the City of
Helena, Montana, on the 9th day of April, 2021, at 3:00
PM, to produce the following documents:
(1)
All emails and attachments sent and received
by Court Administrator Beth McLaughlin
between January 4, 2021 and April 8,
2021delivered as hard copies and .pst digital
files.
(2)
Any and all recoverable deleted e-mails sent
or received by Court Administrator Beth
McLaughlin between January 4, 2021 and
April 8, 2021 delivered as hard copies and
.pst digital files.
(3)
This request excludes any emails and
attachments related to decisions made by the
justices in disposition of final opinion.
For failure to appear and produce the information
requested in this subpoena, you may be liable to
20a
punishment for contempt pursuant to section 5-5-103,
MCA.
Pursuant to section 5-5-105, MCA, a person sworn and
examined before either house of the legislature or any
committee of the legislature may not be held to answer
criminally or be subjected to any penalty or forfeiture
for any fact or act relating to the required testimony. A
statement made or paper produced by the witness is
not contempt evidence in any criminal proceeding
against the witness. A witness cannot refuse to testify
to any fact or produce any paper concerning which the
witness is examined for the reason that the witness’s
testimony or the production of the paper tends to
disgrace the witness or render the witness infamous.
Section 5-5-105, MCA, does not exempt a witness from
prosecution and punishment for perjury committed by
the witness during the examination.
DATED in Helena, Montana, this 8th day of April,
2021.
By:
Sen. Keith Regier, Chairman of the Judiciary
Standing Committee of the Montana Senate.
21a
EXHIBIT B
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0125
[Filed: April 11, 2021]
__________________________________________
DOROTHY BRADLEY, BOB BROWN,
)
MAE NAN ELLINGSON, VERNON
)
FINLEY, and MONTANA LEAGUE OF
)
WOMEN VOTERS
)
)
Petitioners,
)
)
v.
)
)
GREG GIANFORTE, Governor of the
)
State of Montana,
)
)
Respondent.
)
__________________________________________)
DECLARATION OF BETH McLAUGHLIN
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P.O. Box 9199
Missoula, MT 59807-9199
Tel: (406)543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
22a
Counsel for Beth McLaughlin
1.
The statements made herein are based on my
personal knowledge, and I am competent to testify
regarding the same.
2.
I am the Court Administrator for the
Montana Supreme Court.
3.
I was asked by the Montana Legislature to
provide information on a poll of the Montana Judges
Association (“MJA”) pertaining to SB 140. I complied
with the request to the best of my abilities.
4.
Subsequently, the Montana Department of
Administration was served with a Subpoena from the
Montana State Legislature, demanding production of
“all emails and attachments sent and received by Court
Administrator Beth McLaughlin between January 4,
2021 and April 8, 2021.” The Subpoena also requests
my deleted emails during the same time period. The
only exception is for “emails and attachments related
to decisions made by the justices in disposition of final
opinion.” I was given a “courtesy copy” of the subpoena
late afternoon April 9, 2021.
5.
A true and correct copy of the Subpoena has
been provided to the Court with the motion filed on my
behalf.
6.
Although the Subpoena demanded the
Department of Administration produce all of my emails
and attachments on Friday, April 9, 2021, I was
informed that Director Giles reached an agreement
whereby documents would be compiled this weekend
and produced, presumably, Monday or later this
23a
weekend. I am informed and believe that Director Giles
intends to comply with the Legislature’s Subpoena.
7.
In my capacity as Court Administrator, I
receive a wide variety of emails and attachments that
implicate the rights and privileges of other parties.
These emails and attachments include, but are not
limited to:
# Information pertaining to medical information
both for employees and elected officials.
# Discussions of potential employee disciplinary
issues including requests from employees and
judges to discuss pending discipline.
# Discussions with judges about case processing
and ongoing litigation in pending or potential
cases.
# Information related to complaints pending
before the Judicial Standards Commission.
# Information or documentation of Youth Court
Case case information in my role as supervisor
of the Youth Court bureau chief.
# Information about potential on-going security
risks to individual judges including
communications with law enforcement.
# Copied on exchanges between judges in which
advice about case law and potential decisions
were being sought from other judges.
24a
# Copied on exchanges between judges in which
information was exchanged about judicial work
product.
# Requests from members of the public for
disability accommod at i ons inc l uding
documentation of the disability.
# Other unknown items that could expose the
state and Judicial Branch to liability if protected
information is exposed.
8.
If the emails and attachments are produced
as requested in the Subpoena, the privileged,
confidential, private, sensitive and protected
information set forth above will be disclosed.
9.
Severe or irreparable harm will occur if the
Subpoena is not quashed or temporarily restrained—
namely, the improper and illegal disclosure of
privileged, private, sensitive and protected information
and documents.
10.
In accordance with Montana law, Mont. Code
Ann. § 1-6-105, I declare under penalty of perjury and
under the laws of the state of Montana that the
foregoing is true and correct.
DATED this 10 day of April, 2021.
Signed in Helena (city), Montana.
By: /s/ Beth McLaughlin
Beth McLaughlin
25a
EXHIBIT C
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0125
[Filed: April 11, 2021]
__________________________________________
DOROTHY BRADLEY, BOB BROWN,
)
MAE NAN ELLINGSON, VERNON
)
FINLEY, and MONTANA LEAGUE OF
)
WOMEN VOTERS
)
)
Petitioners,
)
)
v.
)
)
GREG GIANFORTE, Governor of the
)
State of Montana,
)
)
Respondent.
)
__________________________________________)
PROPOSED ORDER
Having reviewed Intervenor’s Beth McLaughlin’s
Emergency Motion for Temporary Restraining Order
and to Quash Legislative Subpoena Duces Tecum, and
for good cause shown, the Motion is GRANTED. The
Subpoena issued by the Montana State Legislature to
Director Misty Ann Griles of the Montana Department
of Administration dated April 8, 2021 (“the Subpoena”)
is QUASHED. The Montana Department of
Administration and its Director are ENJOINED and
RESTRAINED from complying with, producing, or
26a
otherwise disclosing the documents and information set
forth in the Subpoena. This Order and its restrictions
shall remain in FULL FORCE AND EFFECT absent
further order from this Court.
The Clerk is directed to give notice of this Order to
all counsel of record.
Dated this __ day of April, 2021.
_______________________
27a
EXHIBIT D
BOONE KARLBERG P.C. ATTORNEYS AT LAW
T. BOONE (1910-1984)
KARL R. KARLBERG (1923-1988)
JAMES J. BENN (1944-1992)
THOMAS H. BOONE, of Counsel
WILLIAM L. CROWLEY
RANDY J. COX
ROBERT J. SULLIVAN
DEAN A. STENSLAND
CYNTHIA K. THIEL
ROSS D. TILLMAN
JAMES A. BOWDITCH
MATTHEW B. HAYHURST
SCOTT M. STEARNS
NATASHA PRINZING JONES
THOMAS J. LEONARD
JULIE R. SIRRS
TRACEY NEIGHBOR JOHNSON
CHRISTOPHER L. DECKER
ZACHARY A. FRANZ
TYLER M. STOCKTON
EVAN B. COREN
ALISON R. POTTS
WILLIAM T. CASEY
REBECCA L. STURSBERG
April 10, 2021
Misty Ann Giles, Director
Montana Department of Administration
c/o Michael Manion, Legal Counsel
Email delivery: MManion@mt.gov
Todd Everts, Esq.
Legislature Legal Services Division
Email delivery: teverts@mt.gov
Re:
Legislative Subpoena dated April 8, 2021
Dear Director Giles, Mr. Manion, Mr. Everts:
I write this letter in my capacity as legal counsel for
Beth McLaughlin, the Montana Supreme Court
Administrator. This letter pertains to the Legislative
Subpoena served April 8 on the Department of
28a
Administration. We write to request that the
Department temporarily but immediately stay action
on that subpoena for reasons noted below. If the
Department of Administration, instead, chooses to
proceed, we respectfully ask that you advise us of your
intentions so we may file an emergency motion with
the Montana Supreme Court.
The Legislature, by its subpoena, seeks
communications that reside within the Judicial Branch
of Montana government. It is our position that
legislative subpoenas for internal judicial documents
are categorically invalid as in violation of fundamental
separation of powers principles, among other things.
Regardless, it is our intention to propose a means of
resolving the issues raised by the subpoena in an
orderly way.
The most troublesome aspect of the Legislative
Subpoena is its breadth. Legislative subpoenas must be
specific and narrowly drawn. Yet, this subpoena seeks
“all emails and attachments” sent or received by Court
Administrator Beth McLaughlin between January 4,
2021 and April 8, 2021.
The Legislature’s subpoena relates to the petition
pending before the Supreme Court regarding SB 140
and its elimination of the Judicial Nomination
Commission. Yet there is no such limitation in the
subpoena. The subpoena asks for every email with one
minor exception relating to “decisions made by the
justices in disposition of final opinion.” Because of her
position and broad responsibilities, the Court
Administrator’s emails contain personal and private
information. For example, the requested emails likely
29a
contain private medical information, personnel matters
including employee disciplinary issues, discussions
with judges about ongoing litigation, information
regarding Youth Court cases, judicial work product,
ADA requests for disability accommodations,
confidential matters before the Judicial Standards
Commission, and information that could subject the
State to liability were protected information exposed.
Without a mechanism to review every email in that
three-month period and screen them for privileged or
private information, the Department could easily
disclose sensitive, private information and create
serious liability problems for the State.
We firmly take the position that judicial records are
not subject to legislative subpoena. We further take the
position that the Department of Administration has no
authority over judicial branch records. Nevertheless, in
the interest of avoiding litigation of constitutional
dimension, I write to propose at least a temporary
solution that avoids irreparable harm wrought by
executive branch production of judicial records
containing private and privileged information.
I suggest an orderly process by which the legislative
subpoena of April 8 be withdrawn, revised to be more
narrowly tailored to information regarding discussions
of SB 140 and then served on the branch of government
whose records are being sought – specifically, the
Supreme Court Administrator. The Court
Administrator will respond through an orderly process
that protects existing privacy interests.
We understand the Department of Administration
is actively working this weekend to produce documents
30a
in response to the subpoena. Given the extreme time
sensitivities and irreparable harm that will result,
please advise immediately if you agree to stay response
to the legislative subpoena until the issues are
resolved by agreement or through court process. If you
are unwilling to agree to our proposal, we will file an
emergency petition asking for a temporary restraining
order and an order quashing the subpoena and staying
response by the Department of Administration until
the important Constitutional and personal privacy
issues can be resolved in a legally appropriate way. If
you choose for us to proceed in that fashion, we will
advise the Court that our motion is opposed.
You may reach me directly via my cell phone at 406
370-3926 or by email at rcox@boonekarlberg.com.
Thank you for your consideration. I look forward to
hearing from you.
Sincerely,
/s/ Randy J. Cox
Randy J. Cox
cc: Beth McLaughlin
31a
APPENDIX 2
IN THE SUPREME COURT
OF THE STATE OF MONTANA
No. OP 21-0125
[Filed: April 11, 2021]
__________________________________________
BOB BROWN, DOROTHY BRADLEY,
)
VERNON FINLEY, MAE NAN
)
ELLINGSON, and the LEAGUE OF
)
WOMEN VOTERS OF MONTANA,
)
)
Petitioners,
)
)
v.
)
)
GREG GIANFORTE, Governor of the
)
State of Montana,
)
)
Respondent.
)
__________________________________________)
INTERVENOR BETH McLAUGHLIN’S
EMERGENCY SUPPLEMENTATION OF
EMERGENCY MOTION TO QUASH AND
ENJOIN LEGISLATIVE SUBPOENA DUCES
TECUM
32a
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P. O. Box 9199
Missoula, MT 59807-9199
Tel: (406)543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
Counsel for Beth McLaughlin
MOTION FOR LEAVE TO SUPPLEMENT
Intervenor Beth Mclaughlin, Supreme Court
Administrator, brings this motion for leave to
supplement, on an emergency basis, the Emergency
Motion to Quash and Enjoin Legislative Subpoena
Duces Tecum sent for filing Saturday, April 10. The
supplementation is necessary to bring recent events
and future intentions to the Court’s attention because
of their possible effects on people well beyond the
parties involved in this case and well beyond the
Montana Legislature and the Department of
Administration.1
BRIEF
On Saturday, April 10, 2021, Intervenor Beth
McLaughlin filed an Emergency Motion to Quash and
Enjoin Legislative Subpoena Duces Tecum. The
1
The correct caption is on this motion and brief. On April 10, the
Intervenor inadvertently used the wrong caption listing Dorothy
Bradley as the lead Petitioner. Bob Brown is the lead Petitioner.
Counsel for Intervenor regrets the error. Somewhere along the line
one of the participants in these proceedings changed the caption.
33a
document was received for filing at 6:55 p.m.
Subsequently, that motion and brief was delivered via
e-mail to the Director of the Department of
Administration, Misty Ann Giles.
The major reason for seeking emergency action by
the Montana Supreme Court was the concern of the
Supreme Court Administrator, Beth McLaughlin, that
her emails are likely to contain private personnel and
medical issues as well as information regarding Youth
Court cases and Judicial Standards Commission
discussions and information. (Emergency Motion, p. 2.)
Those concerns are fully stated in her Declaration (Ex.
B to Emergency Motion.)
An email string of communications between
Director Giles and the undersigned, as counsel for
Intervenor McLaughlin, reveals that the Department
of Administration turned over a portion of the
subpoenaed documents on Friday, April 10, and
apparently plans to turn over remaining documents on
Monday, April 12. See attached Exhibit 1.
If the Court Administrator’s concerns over
disclosure of private and personal information in
judicial department emails are correct, then the
Department of Administration and now the Montana
Legislature are on the cusp – or beyond – of revealing
information that is not only harmful to people and
institutions but could create serious liability issues for
the State of Montana. There is no reason for that.
Everyone should just stop and wait for this Court’s
determination regarding the legitimacy of the
Legislative Subpoena and whether production should
34a
be enjoined. That is the gist of Intervenor McLaughlin’s
emergency motion.
In Order to protect against inadvertent (or even
deliberate) disclosures of information, we respectfully
ask the Court do three things: 1) Order that the
Director of the Department of Administration take no
further steps to comply with the subpoena and
segregate and hold the information being processed for
delivery to the Legislature; and 2) Order Keith Regier,
Chairman of the Judiciary Standing Committee who
issued the Legislative Subpoena, to capture and return
all copies of documents produced Friday by Director
Giles, those documents are to be held by Director Giles
until further order of this Court; and 3) order Directors
Giles to produce a copy in .pst form to counsel for Court
Administrator McLaughlin immediately so that the
Administrator knows what has been produced and can
properly provide further advice regarding her concerns
to this Court.
Intervenor respectfully submits that there is no risk
of any kind of harm to anyone’s legal position or even
political position if everyone is simply ordered to stand
down and take no further action until the Court has
time to do a thorough and careful analysis of the
situation. There is, however, a risk of serious and
irreparable harm if events continue to spin out in a
political process.
35a
Dated this 11th day of April 2021.
BOONE KARLBERG P.C.
\s\ Randy J. Cox
Randy J. Cox
[*** Certificates omitted for printing purposes ***]
36a
EXHIBIT 1
From: Giles, Misty Ann
Sent: Sunday, April 11, 2021 11:23 AM
To: Randy Cox
Cc: Manion, Michael; Matt Hayhurst; Thomas Leonard
Subject: Re: Legislative subpoena for judicial branch
records
Mr. Cox,
Thank you for your email. DOA is complying with the
scope of the subpoena as written. As the third party
holder of these documents, DOA is not well suited to
ascertain which fall within the concerns you raise. I am
happy to provide copies of the .pst file of what we
turned over on Friday and then do the same on Monday
with the remaining documents.
Again, I encourage you to reach out to the Legislature
to resolve your concerns as they are the issuers of the
subpoena.
MAG
Misty Ann Giles
Director of Administration
C: 404-319-5817
__________________________________________________
From: Randy Cox
Sent: Saturday, April 10, 2021 8:57:08 PM
To: Giles, Misty Ann
Cc: Manion, Michael; Matt Hayhurst; Thomas Leonard
Subject: [EXTERNAL] RE: Legislative subpoena for
judicial branch records
37a
Director Giles:
I attempted to send an email to you with our motion
filed with the Supreme Court earlier this evening. The
email was rejected. I respectfully ask that you obtain
copies of the information I sent including my email
from Mr. Manion. I do not know why the email did not
go through.
I did, however, ask some important questions in the
email and to make certain those get through to you I
include that portion of the email below.
May I please know the Department’s intentions with
respect to compliance with the Legislative Subpoena.
Specifically, is it your intention to comply without
limitation? Have you put into place any mechanism for
reviewing subpoenaed judicial branch documents for
the presence of personal or private information or
information that is otherwise protected by law? What
is your timetable for delivery of documents to the
Legislature if, in fact, that is what you intend to do?
Will you please be so kind as to allow the Supreme
Court Administrator the opportunity to review judicial
branch documents prior to their being turned over to
the Legislature and placed in the public realm so we
may assert appropriate objections on behalf of those
whose interests are affected or allow them that
opportunity?
Thank you.
Randy J Cox
Boone Karlberg PC
Missoula, MT
Counsel for intervenor/petition Beth McLaughlin
38a
__________________________________________________
From: Giles, Misty Ann
Sent: Saturday, April 10, 2021 8:20 PM
To: Randy Cox
Cc: Thomas Leonard; Matt Hayhurst; Manion, Michael
Subject: Fwd: Legislative subpoena for judicial branch
records
Mr. Cox,
Thank you for your letter, my Deputy Mike Manion
provided it to me. Thank you for your concerns but this
should be addressed to the Speaker, Wylie Galt and
President, Mark Blasedale as they are the issuers of
the subpoena.
Going forward, please be sure to include me directly in
your communication and copy Mike Manion.
Best Regards,
MAG
Misty Ann Giles
Director of Administration
C: 404-319-5817
__________________________________________________
From: Manion, Michael <MManion@mt.gov>
Sent: Saturday, April 10, 2021 8:04 PM
To: Giles, Misty Ann
Subject: FW: Legislative subpoena for judicial branch
records
[Seal] MIKE MANION Deputy Director/Chief
Legal Counsel
39a
Montana Department of Administration
DESK 406.444.3310
__________________________________________________
From: Randy Cox <rcox@boonekarlberg.com>
Sent: Saturday, April 10, 2021 3:19 PM
To: Manion, Michael <MManion@mt.gov>; Everts,
Todd <teverts@mt.gov>
Cc: Matt Hayhurst <mhayhurst@boonekarlberg.com>;
Thomas Leonard <tleonard@boonekarlberg.com>
Subject: [EXTERNAL] Legislative subpoena for
judicial branch records
Gentlemen:
Please see the attached letter written and sent to you.
I am counsel for the Court Administrator, Beth
McLaughlin. Please review the letter and call me to
discuss if you wish.
We are within a short time period of filing an
emergency motion with the Montana Supreme Court to
at least temporarily halt the process of the Department
of Administration’s work to comply with the Legislative
Subpoena served recently, a copy of which Beth
McLaughlin was given after 5 pm yesterday.
Thank you for your consideration. I urge you to call and
talk with me.
40a
Randy J. Cox
Shareholder
BOONE KARLBERG P.C. ATTORNEYS AT LAW
201 West Main St., Suite 300
P.O. Box 9199
Missoula, MT 59807
Phone: (406) 543-6646
Fax: (406) 549-6804
41a
APPENDIX 3
MONTANA STATE LEGISLATURE
SUBPOENA
WITNESS: Director Misty Ann Giles
MT Dept. of Administration
125 N. Roberts St.
Helena, Montana 59620
THE MONTANA STATE LEGISLATURE, to
Director Misty Ann Giles.
The Montana Legislature is conducting an
investigation of state records retention protocols,
improper use of government time and resources, and
the application of the judicial standards commission’s
enforcement authority.
You are hereby required to appear at the Montana
State Capitol Building, room [president’s office], in the
City of Helena, Montana, on the 13th day of April, 2021,
at 3:00 p.m., to produce the following documents:
(1)
(2)
(3)
Any emails and attachments responsive to
the Legislature’s April 7th subpoena which
have not yet been delivered.
All emails and attachments sent and received
by Court Administrator Beth McLaughlin
between April 8, 2021, and April 12, 2021
delivered as hard copies and .pst digital files.
Any and all recoverable deleted e-mails sent
or received by Court Administrator Beth
42a
McLaughlin between April 8, 2021, and April
12, 2021 delivered as hard copies and .pst
digital files.
Please note, as with the Legislature’s April 7, 2021,
subpoena to you, this request excludes any emails and
attachments related to decisional case-related matters
made by Montana justices or judges in the disposition
of such matters. Please redact, as necessary, any
personal, confidential, or protected documents or
information responsive to this request.
Pursuant to section 5-5-101, MCA, et seq., a person
cannot refuse to testify to any fact or produce any
paper concerning which the person is examined for the
reason that the witness’s testimony or the production
of the paper tends to disgrace the witness or render the
witness infamous. Section 5-5-105, MCA, does not
exempt a witness from prosecution and punishment
for perjury committed by the witness during the
examination.
DATED in Helena, Montana, this 13th day of April,
2021.
By: /s/ Mark Blasdel
Senator Mark Blasdel, President of the Montana
Senate.
43a
APPENDIX 4
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0173
[Filed: April 15, 2021]
__________________________________________
BETH McLAUGHLIN,
)
)
Petitioner,
)
)
v.
)
)
The MONTANA STATE LEGISLATURE,
)
and the MONTANA DEPARTMENT of
)
ADMINISTRATION,
)
)
Respondents.
)
__________________________________________)
EMERGENCY MOTION TO QUASH REVISED
LEGISLATIVE SUBPOENA
44a
APPEARANCES:
Randy J. Cox
BOONE
KARLBERG P.C.
201 West Main,
Suite 300
P. O. Box 9199
Missoula, MT
59807-9199
Tel: (406) 543-6646
Fax: (406) 549-6804
rcox@boonekarlberg
.com
Mike Manion
Chief Legal
Counsel
Mont. Dept. of
Administration
Mitchell
Building,
125 N Roberts St.
PO Box 20010
Helena, MT
59620
mmanion@mt.gov
Kristin Hansen
Derek J.
Oestreicher
215 N. Sanders
P.O. Box 201401
Helena, MT
59620-1401
Tel: (406)
444-2026
Fax: (406)
444-3549
khansen@mt.gov
derek.oestreicher
@mt.gov
Counsel for
Petitioner
Counsel
Department of
Administration
Counsel for
Respondent
Montana State
Legislature
45a
MOTION
Recognizing the serious problems with the unlawful
subpoena quashed by the Court’s Temporary Order in
OP 21-0125, today the Legislature served Court
Administrator Beth McLaughlin with a new version
(“Revised Subpoena”), attached as Exhibit A. The
Revised Subpoena still suffers from fundamental
deficiencies and must be quashed. This is particularly
true given the Legislature’s stated position it will not
abide by court decisions it does not agree with.
McLaughlin is entitled to protection before being
compelled to testify and turn over sensitive information
to a body which now, apparently, regards itself as
unshackled from any check or balance.
The Revised Subpoena requires McLaughlin to
appear, testify, and provide information on Monday,
April 19, 2021. Pursuant to M.R.App.P. 14, MCA §§ 32-205, 26-2-401, and M.R.Civ.P. 45, McLaughlin
requests an immediate order temporarily quashing the
Revised Subpoena to maintain the status quo and
prevent further irreparable injury, and ordering the
Legislature to show cause why the Revised Subpoena
should not be permanently quashed. Respondents
object.
BACKGROUND
Most of the pertinent background is set forth in
McLaughlin’s Petition for Original Jurisdiction, filed
April 12, 2021. The new facts are limited but
significant.
The Revised Subpoena was served on McLaughlin
today, April 15, 2021, and states:
46a
THE MONTANA STATE LEGISLATURE, to
Administrator McLaughlin.
You are hereby required to appear at the
Montana State Capitol Building, room 303, in
the City of Helena, Montana, on the 19th day of
April, 2021, at 9:00 a.m., to produce the
following documents and answer questions
regarding the same:
(1)
(2)
All emails and attachments sent and
received by your government e-mail
account, bmclaughlin@mt.gov,
including recoverable deleted emails,
between January 4, 2021, and April
12, 2021 delivered as hard copies and
.pst digital files.
Any and all laptops, desktops,
hard-drives, or telephones owned by
the State of Montana which were
utilized in facilitating polls or votes
with Montana Judges and Justices
regarding legislation or issues that
may come or have come before
Montana courts for decision.
This request excludes any emails, documents,
and information related to decisions made by
Montana justices or judges in the disposition of
any final opinion or any decisional case-related
matters. Any personal, confidential, or protected
documents or information responsive to this
request will be redacted and not subject to public
disclosure.
47a
This request pertains to the Legislature’s
investigation into whether members of the
Judiciary or employees of the Judicial Branch
deleted public records and information in
violation of state law and policy; and whether
the current policies and processes of the Judicial
Standards Commission are sufficient to address
the serious nature of polling members of the
Judiciary to prejudge legislation and issues
which have come and will come before the courts
for decision.
(Ex. A.)
The Revised Subpoena is broader than the prior
version in key respects. It requires McLaughlin, in two
business days, to produce not just “all emails and
attachments,” but also “[a]ny and all laptops, desktops,
hard-drives, or telephones owned by the State” which
were used in polling any members of the judiciary. It
requires her to “answer questions” about the
documents, which will number in the thousands. It also
extends the date range for responsive information to
April 12, 2021, despite SB140 being signed into law on
March 16, 2021. (Ex. A.)
The Revised Subpoena appears to exclude at least
some communications subject to the judicial
deliberative privilege, but does not exclude a host of
other private and confidential information.
The other change is the addition of a statement of
purpose. Rather than help the Legislature’s cause,
however, it only underscores the lack of a legitimate
48a
legislative purpose, laying bare the most fundamental
problem with the Revised Subpoena.
ANALYSIS
The legal basis for the Court’s original jurisdiction
and authority to grant the requested relief is set forth
in McLaughlin’s Petition for Original Jurisdiction,
incorporated by reference.
A. Invalid Exercise of Legislative Subpoena
Power.
The Legislature’s power to issue subpoenas is finite.
The U.S. Supreme Court recently addressed this
precise issue in connection with a subpoena issued by
Congress to President Donald J. Trump, wherein the
Chief Justice wrote legislative subpoena power is
“justified solely as an adjunct to the legislative process”
and “must serve a valid legislative purpose.” See
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031-32
(2020).
The Montana Constitution similarly provides for
limited investigative authority by the Legislature.
Mont. Const. Art V, § 1. As advised by the
Legislature’s own Chief Legal Counsel and its rules,
“the power to investigate must be exercised for a proper
legislative purpose related to enacting law, and the
application and exercise of the legislative investigation
power must protect the rights of citizens and adhere to
all constitutional protections related to privacy, life,
liberty and property.” (April 18, 2018 Montana
Legislative Services Division Memorandum, Exhibit B
(emphasis added).) The Legislature thus recognizes
legal limitations on its investigative powers, including:
49a
• “It is the general rule that the legislature has no
power . . . to make inquiry in the private affairs
of a citizen except to accomplish some authorized
end.”
• “A state legislature, in conducting any
investigation, must observe the constitutional
provisions relating to the enjoyment of life,
liberty and property.”
• “An investigation instituted for political
purposes and not connected with intended
legislation or with any of the matters upon
which a house should act is not a proper
legislative proceeding and is beyond the
authority of the house or the legislature.”
• “When a committee is appointed by resolution to
make an investigation and the object of the
investigation, as shown by the resolution, is not
a proper legislative objective but is to establish
an extraordinary tribunal for the trial of judicial
and other officers, the duties imposed on the
commission being strictly judicial and not
ancillary to legislation, the committee has no
legal status.”
• “The investigatory power of a legislative body is
limited to obtaining information on matters that
fall within its proper field of legislative action.”
(Ex. B at 7).
The limitations are even more pronounced here,
because legislative subpoena power is most limited
when directed toward the judicial or executive
50a
branches. Trump, 140 S. Ct. at 2035-36. “[C]ourts
should carefully assess whether the asserted legislative
purpose warrants the ‘significant step’ of subpoenaing
the documents of a co-equal branch of government”
and, “to narrow the scope of possible conflict between
the branches, courts should insist on a subpoena no
broader than reasonably necessary to support
Congress’s legislative objective.” Id.
Here, the Legislature is violating the Trump
principles. It is attempting to use its limited subpoena
power to obtain judicial communications—not for any
legitimate legislative purpose, but for a litigation
purpose, political purpose, or something tantamount to
“an extraordinary tribunal for the trial of judicial and
other officers.” (Ex. B.)
B. Privileged Information.
With the Revised Subpoena, the Legislature
excludes some information subject to the judicial
deliberations privilege, but not all. It only excludes
communications “by Montana justices or judges in the
disposition of any final opinion or any decisional
case-related matters.” (Ex. A (emphasis added).) To the
extent that language is decipherable, it is insufficient.
The privilege extends broadly to “communications
between judges and between judges and the court’s
staff made in the performance of their judicial duties
and relating to official court business.” E.g., Thomas v.
Page, 837 N.E.2d 483, 490-91 (Ill. App. 2005).
C. Private and Confidential Information.
The Legislature believes privacy rights cannot be
violated by disclosure to the Legislature, as long as it
51a
promises the information “will be redacted and not
subject to public disclosure.” (Ex. A.) There is no legal
authority for this position. To the contrary, the
Montana Constitution is clear: The right to privacy
“shall not be infringed without the showing of a
compelling state interest.” Mont. Const. Art. II, § 10.
As set forth in her Petition, McLaughlin receives a
wide variety of emails and attachments that implicate
the rights and privileges of other parties. These
privacy concerns do not vanish simply because the
Legislature promises not to further disclose
information, or because the Legislature says it will
protect the information.
D. Insufficient Time for Compliance.
Montana law provides a court “must quash or
modify a subpoena that . . . fails to allow a reasonable
time to comply.” MRCP 45(3)(A)(i) (emphasis added).
Two business days is insufficient to review thousands
of emails and “[a]ny and all laptops, desktops,
hard-drives, or telephones owned by the State of
Montana,” review for privilege, and be prepared to
testify regarding the same.
E. End-Around the Court’s Temporary Order.
The Court quashed the original subpoena in its
Temporary Order on April 11, 2021, and directed the
parties to file additional briefing—an approach
consistent with Montana law on temporary injunctive
relief. See MCA §§ 27-19-314 to -319. Pending further
order of the Court, the original Subpoena no longer
“remains in effect.” MCA § 26-2-11. The Revised
52a
Subpoena is nothing short of an end-run around the
Court’s Temporary Order and directives.
CONCLUSION
For the reasons stated, the Revised Subpoena must
be quashed.
Dated this 15th day of April 2021.
BOONE KARLBERG P.C.
\s\ Randy J. Cox
Randy J. Cox
[*** Certificates omitted for printing purposes ***]
Exhibit Index
• Exhibit A – Revised Subpoena
• Exhibit B – April 18, 2018 Montana Legislative
Services Division Memorandum
53a
EXHIBIT A
MONTANA STATE LEGISLATURE
SUBPOENA
WITNESS: Court Administrator Beth McLaughlin
Office of the Court Administrator
215 N. Sanders St.
Helena, Montana 59601
THE MONTANA STATE LEGISLATURE, to
Administrator McLaughlin.
You are hereby required to appear at the Montana
State Capitol Building, room 303, in the City of Helena,
Montana, on the 19th day of April, 2021, at 9:00 a.m., to
produce the following documents and answer questions
regarding the same:
(1)
(2)
All emails and attachments sent and received
by your government e-mail account,
bmclaughlin@mt.gov, including recoverable
deleted emails, between January 4, 2021,
and April 12, 2021 delivered as hard copies
and .pst digital files.
Any and all laptops, desktops, hard-drives, or
telephones owned by the State of Montana
which were utilized in facilitating polls or
votes with Montana Judges and Justices
regarding legislation or issues that may come
or have come before Montana courts for
decision.
This request excludes any emails, documents, and
information related to decisions made by Montana
54a
justices or judges in the disposition of any final opinion
or any decisional case-related matters. Any personal,
confidential, or protected documents or information
responsive to this request will be redacted and not
subject to public disclosure.
This request pertains to the Legislature’s investigation
into whether members of the Judiciary or employees of
the Judicial Branch deleted public records and
information in violation of state law and policy; and
whether the current policies and processes of the
Judicial Standards Commission are sufficient to
address the serious nature of polling members of the
Judiciary to prejudge legislation and issues which have
come and will come before the courts for decision.
Pursuant to section 5-5-101, MCA, et seq., a person
cannot refuse to testify to any fact or produce any
paper concerning which the person is examined for the
reason that the witness’s testimony or the production
of the paper tends to disgrace the witness or render the
witness infamous. Section 5-5-105, MCA, does not
exempt a witness from prosecution and punishment
for perjury committed by the witness during the
examination.
DATED in Helena, Montana, this 14th day of April,
2021.
By: /s/ Mark Blasdel
Senator Mark Blasdel, President of the Montana
Senate.
55a
By: /s/ E. Wylie Galt
Representative Wylie Galt, Speaker of the Montana
House of Representatives
56a
EXHIBIT B
[THE GREAT SEAL OF THE STATE OF MONTANA]
Montana Legislative
Services Division
Legal Services Office
PO BOX 201706
Helena, MT 59620-1706
(406) 444-3064
FAX (406) 444-3036
April 18, 2018
TO:
Representative Ron Ehli, Vice Chair, Special
Select Committee on State Settlement
Accountability
FR:
Todd Everts, Chief Legal Counsel
RE:
Information Request Regarding the Montana
Legislature’s Investigative Authority
In anticipation of the organizational meeting on April
25, 2018, of the Special Select Committee on State
Settlement Accountability, you requested information
regarding the investigative authority of the Montana
Legislature and its legislative committees and staff.
This memorandum is in response to that request.
MEMORANDUM
I.
Background
On March 16, 2018, pursuant to House Rules 30-20(7)
and (8) and Senate Rule 30-10(4), the Speaker of the
House and the President of the Senate jointly
appointed the Special Select Committee on State
Settlement Accountability to investigate executive
branch confidential settlements paid out to public
57a
employees. The Special Select Committee is comprised
of six Republicans and four Democrats. Leadership
appointed Senator Nels Swandal as chair and
appointed Representative Ron Ehli as vice chair of the
Special Select Committee.
II.
Investigative Authority of the Montana
Legislature and Its Legislative Committees
and Staff
It has been consistently recognized by the courts and
uniformly reflected in constitutional and
parliamentary law that a legislative body has the clear
and very broad authority to conduct legislative
investigations to gather and evaluate information to
make wise and timely policy judgements inherent and
indispensable in the power of enacting law.1 A
legislative body’s inherent power to investigate may be
exercised directly or through a duly authorized
committee.2 A legislative body’s investigative power is
not absolute and there are limitations. The
presumption of constitutionality of legislative actions
applies to legislative investigations.3
However, the power to investigate must be exercised
for a proper legislative purpose related to enacting law,
and the application and exercise of the legislative
investigation power must protect the rights of citizens
1
Mason’s Manual of Legislative Procedure (2010), p. 561;
Sutherland Statutory Construction (2010), p. 596.
2
Mason’s Manual, p. 569; Sutherland, p. 570.
3
Sutherland, p. 578.
58a
and adhere to all constitutional protections related to
privacy, life, liberty, and property.4 The power to
investigate the private affairs of a citizen only exists
when the investigative authority exercised is directly
related to a legitimate legislative purpose.5
A. Source of Legislative Investigative Authority
The organic source of the Montana Legislature’s
investigative powers can be found in Article V, section
1, of the Montana Constitution, which provides: “The
legislative power is vested in a legislature consisting
of a senate and a house of representatives.” The
Montana Constitution further provides that:
Each house shall judge the election and
qualifications of its members. It may by law vest
in the courts the power to try and determine
contested elections. Each house shall choose its
officers from among its members, keep a journal,
and make rules for its proceedings. Each house
may expel or punish a member for good cause
shown with the concurrence of two-thirds of all
its members.6
With Montana’s constitutional advent of a bicameral
Legislature, the power to investigate resides as a
separate and distinct power in each house of the
4
Mason’s Manual, p. 566; Article II, section 10, of the Montana
Constitution.
5
Mason’s Manual, p. 566; Sutherland, pp. 578-583.
6
Article V, section 10(1), of the Montana Constitution.
59a
Legislature.7 However, both the Montana Senate and
the House of Representatives may jointly appoint an
investigative committee.8
Constitutional investigative powers also reside in
specific administrative committees and interim
committees. Article V, section 10(4), of the Montana
Constitution provides that the Legislature may
establish a Legislative Council and other interim
committees and that the Legislature shall establish a
legislative post-audit committee that shall supervise
post-auditing duties as provided by law.
Other provisions of the Montana Constitution that
buttress the Legislature’s investigative authority
include Article II, sections 8 and 9, the public’s
constitutional right to participate in the
decision-making process of state government and the
public’s right to examine documents and observe the
deliberations of all public bodies or agencies of state
government. Synchronized with the public’s right to
know and participate is the constitutional requirement
that all committee meetings and hearings of the
Legislature be open to the public.9
In addition to the Constitution, the bulk of the
Montana Legislature’s investigative authority resides
7
Article V, sections 1 and 10, of the Montana Constitution;
Mason’s Manual, p. 562.
8
Rules of the Montana Legislature, Joint Rules 30-10 and 30-20;
House Rules 30-20(7) and (8); and Senate Rule 30-10(4).
9
Article V, section 10 (3), of the Montana Constitution.
60a
in statute with respect to subpoenas, contempt,
compelling attendance of a witness, immunity of a
witness, administering oaths, powers of statutory and
interim committees related to legislative hearings,
authority of the Legislative Services Division on behalf
of committees to investigate state government
activities, and authority of the legislative auditor and
the legislative fiscal analyst to access confidential
information.10
The Rules of the Montana Legislature offer little detail
regarding the Legislature’s investigative authority
other than describing the authority of the Speaker and
the President to issue subpoenas and referencing that
Mason’s Manual of Legislature Procedure (2010)
governs the proceedings of the Senate and the House in
all cases not governed by the rules.11 Mason’s Manual
devotes an entire chapter on the source, scope, exercise,
and limitations of legislative bodies’ investigative
powers.12
10
Subpoenas (5-5-101 and 5-5-102, MCA), contempt (5-5-103,
MCA), compelling attendance of witness (5-5-104, MCA), immunity
of a witness (5-5-105, MCA), administering oaths (5-5-201, MCA),
authority of the Legislative Services Division on behalf of
committees to investigate state governmental activities (5-11-106,
MCA), powers of statutory and interim committees related to
legislative hearings (5-11-107, MCA), and authority of the
legislative auditor and the legislative fiscal analyst to access
confidential information (5-12-303 and 5-13-309, MCA).
11
Rules of the Montana Legislature, Joint Rule 60-20; Senate Rule
10-50(5); and House Rule 10-20(4).
12
Mason’s Manual, Chapter 73, pp. 561-577.
61a
B. Scope of Legislative Investigative Authority
The scope of a Legislature’s investigative power
broadly extends to any subject related to enacting law.
According to Mason’s Manual:
The legislature has the power to investigate any
subject regarding which it may desire
information in connection with the proper
discharge of its function to enact, amend or
repeal statutes or to perform any other act
delegated to it by the constitution.13
The legislature has power to investigate any
subject where there is a legitimate use that the
legislature can make of the information sought,
and an ulterior purpose in the investigation or
an improper use of the information cannot be
imputed.14
An investigation into the management of state
institutions and the departments of state government
is at all times a legitimate function of a legislative
body.15
It has been noted by courts and legal experts that:
Investigation may be made concerning the
administration of existing laws, proposed laws,
or potentially necessary laws. Inquiry may be
13
Mason’s Manual, p. 561.
14
Mason’s Manual, p. 563.
15
Mason’s Manual, p. 563.
62a
made as to defects in any social, political or
economic system to the end of devising remedies
for any such defects. Investigation may be made
of any subject and any matter that related to the
need of legislation on the subject matter, and
what kind and the extent of any legislation
needed.16
C. Exercise of Legislative Investigative Authority
Where a legislative body has the constitutional power
to institute an investigation, the manner of how the
investigation is conducted rests with the sound
discretion of the legislative body.17
There are a number of investigation tools that the
Montana Legislature has to exercise its investigative
powers. The Legislative Services Division, on behalf of
standing committees, select committees, or interim
committees and any subcommittees of those
committees, may investigate and examine state
government activities and may examine and inspect all
records, books, and files of any department, agency,
commission, board, or institution of the state of
Montana.18
Montana statutes require all state agencies to aid and
assist the legislative auditor in auditing of books,
16
C. Quilter, “Primer on the Investigative Authority of Legislative
Committees”, Legislative Lawyer, Vol. 12, No. 1 (Winter 1998), p.
87.
17
Mason’s Manual, p. 568.
18
5-11-106, MCA.
63a
accounts, activities, and records, and the legislative
auditor may examine at any time the books, accounts,
activities, and records, confidential or otherwise, of a
state agency.19 These statutory provisions regarding
the legislative auditor’s investigative power may not be
construed as authorizing the publication of information
prohibited by law.20
The legislative fiscal analyst has the statutory
authority to investigate and examine the costs and
revenue of state government activities and may
examine and obtain copies of the records, books, and
files of any state agency, including confidential
records.21 When confidential records and information
are obtained from a state agency, the legislative fiscal
analyst and staff must be subject to the same penalties
for unauthorized disclosure of the confidential records
and information provided for under the laws
administered by the state agency. The legislative fiscal
analyst shall develop policies to prevent the
unauthorized disclosure of confidential records and
information obtained from state agencies.22 These
statutory provisions regarding the legislative fiscal
analyst do not authorize publication or public
disclosure of information if the law prohibits
publication or disclosure or if the Department of
Revenue notifies the fiscal analyst that specified
19
5-13-309, MCA.
20
5-13-309, MCA.
21
5-12-303(1), MCA.
22
5-12-303(2), MCA.
64a
records or information may contain confidential
information.23
All duly authorized committees of the Legislature may
hold hearings, administer oaths, issue subpoenas, and
compel the attendance of witnesses and the production
of records and testimony.24 As noted previously, the
Rules of the Montana Legislature authorize the
Speaker and the President to individually issue
subpoenas.25
A person sworn and examined before the Legislature or
any committee may not be held criminally liable or be
subject to any penalty or forfeiture for any fact or act
relating to the required testimony.26 Common law and
judicial rules of evidence applicable in court
proceedings, do not apply to legislative investigations.27
When a summoned witness refuses to obey a subpoena
or refuses to testify, the Senate or the House may, by
23
5-12-303(3), MCA.
24
Subpoenas (5-5-101 and 5-5-102, MCA), contempt (5-5-103,
MCA), compelling attendance of witness (5-5-104, MCA), immunity
of a witness (5-5-105, MCA), administering oaths (5-5-201, MCA),
powers of statutory and interim committees related to legislative
hearings (5-11-107, MCA), and Mason’s Manual, Chapter 73, pp.
561-577.
25
Rules of the Montana Legislature, Senate Rule 10-50(5) and
House Rule 10-20(4).
26
5-5-105(1), MCA.
27
Mason’s Manual, p. 567; Sutherland, p. 586.
65a
resolution, commit the witness for contempt.28 A
witness refusing to attend in obedience to a subpoena
may be arrested by the sergeant at arms and brought
before the Senate or the House. A copy of a resolution
of the Senate or the House, signed by the President or
the Speaker and countersigned by the secretary or the
clerk, is necessary to authorize the arrest.29
Although the appointed Special Select Committee is
neither a statutory committee nor an interim
committee, those types of committees are statutorily
authorized to hold hearings, administer oaths, issue
subpoenas, compel the attendance of witnesses and the
production of papers, books, accounts, documents, and
testimony, and cause depositions of witnesses to be
taken in the manner prescribed by law for taking
depositions in civil actions in district court.30 If a
person disobeys a subpoena issued by a statutory
committee or an interim committee or if a witness
refuses to testify on any matters regarding which the
witness may be lawfully interrogated, the district court
of any county shall, on application of the committee,
compel obedience by proceedings for contempt as in the
case of disobedience of the requirements of a subpoena
issued from a district court or a refusal to testify in the
district court.31
28
5-5-103, MCA.
29
5-5-104, MCA.
30
5-11-107(1), MCA.
31
5-11-107(2), MCA.
66a
D. Limitations on Legislative Investigative Authority
A legislative body’s investigative power is not absolute,
and there are constitutional and common law
limitations placed on that power. The presumption of
constitutionality of legislative actions applies to
legislative investigations.32 However, the power to
investigate must be exercised for a proper legislative
purpose related to enacting law, and the application
and exercise of the legislative investigation power must
protect the rights of citizens and adhere to all
constitutional protections related to privacy, life,
liberty, and property.33 The power to investigate the
private affairs of a citizen only exists when the
investigative authority exercised is directly related to
a legitimate legislative purpose.34
With the Rules of the Montana Legislature defaulting
to Mason’s Manual to govern the proceedings of the
Senate and the House in all cases not governed by the
rules,35 Mason’s Manual lists the following limitations
that would apply to the Montana Legislature’s
investigation powers
in addition to the Montana Constitution and statutory
limitations:
32
Sutherland, p. 578.
33
Mason’s Manual, p. 566; Article II, section 10, of the Montana
Constitution.
34
35
Mason’s Manual, p. 566; Sutherland, pp. 578-583.
Rules of the Montana Legislature, Joint Rule 60-20; Senate Rule
10-50(5); and House Rule 10-20(4).
67a
1. It is the general rule that the legislature has no
power through itself or any committee or any
agency to make inquiry into the private affairs of a
citizen except to accomplish some authorized end.
2. The legislature has no right to conduct an
investigation for the purpose of laying a foundation
for the institution of criminal proceedings, for the
aid and benefit of grand juries in planning
indictments, for the purpose of intentionally
injuring such persons or for any ulterior purpose.
3. A state legislature, in conducting any
investigation, must observe the constitutional
provisions relating to the enjoyment of life, liberty
and property.
4. An investigation instituted for political purposes
and not connected with intended legislation or with
any of the matters upon which a house should act is
not a proper legislative proceeding and is beyond
the authority of the house or legislature.
5. When a committee is appointed by resolution to
make an investigation and the object of the
investigation, as shown by the resolution, is not a
proper legislative object but is to establish an
extraordinary tribunal for the trial of judicial and
other officers, the duties imposed on the commission
being strictly judicial and not ancillary to
legislation, the committee has no legal status.
6. A governmental investigation into the papers of
a private corporation on the possibility that they
may disclose evidence of crime is contrary to the
68a
first principles of justice and an intention to grant
the power must be expressed in explicit language.
7. The investigatory power of a legislative body is
limited to obtaining information on matters that
fall within its proper field of legislative action.36
III.
Conclusion
The Montana Legislature and its duly authorized
committees have the clear and very broad authority to
conduct legislative investigations. The Legislature’s
investigation into the management of state institutions
and the departments of state government is a
legitimate function of a legislative body. The
Legislature’s investigative power is not absolute and
there are limitations. The presumption of
constitutionality of legislative actions applies to
legislative investigations. However, the power to
investigate must be exercised for a proper legislative
purpose related to enacting law. The Legislature’s
investigative power must protect the rights of citizens
and adhere to all constitutional protections.
[*** Certificates omitted for printing purposes***]
36
Mason’s Manual, pp. 566-567.
69a
APPENDIX 5
Jim Rice
Montana Supreme Court
215 North Sanders
PO Box 203001
Helena, MT 59620-3001
Telephone: 1-406-444-5573
Fax: 1-406-444-3274
Email: jrice@mt.gov
MONTANA FIRST JUDICIAL DISTRICT
COURT, LEWIS AND CLARK COUNTY
Cause No. ADV 2021 451
[Filed: April 19, 2021]
__________________________________________
JUSTICE JIM RICE,
)
)
Petitioner,
)
)
v.
)
)
THE MONTANA STATE LEGISLATURE, )
by Senator Mark Blasdel, President of the
)
Senate, and Representative Wylie Galt,
)
Speaker of the House of Representatives,
)
)
Respondents.
)
__________________________________________)
70a
PETITION FOR DECLARATORY AND
INJUNCTIVE RELIEF; AND EMERGENCY
REQUEST TO QUASH OR ENJOIN
LEGISLATIVE SUBPOENA PENDING
PROCEEDINGS
Petitioner has been served a Subpoena by the
Montana State Legislature, requiring him to appear at
the Montana State Capitol on Monday, April 19, 2021,
at 3:00 p.m., to produce documents relating to “any and
all emails and other communications” sent and
received from his government e-mail account, “text
messages, phone messages, and phone logs sent or
received by [his] personal” phone, and “notes or records
of conferences of the Justices,” between January 4,
2021, and April 14, 2021, with regard to polls sent to
members of the Judiciary, business conducted by the
Montana Judges Association, and “legislation pending
before, or potentially pending before, the 2021
Legislature.” Subpoena, attached hereto as Exhibit A.
Petitioner submits that the Subpoena has been issued
beyond the Legislature’s lawful subpoena authority,
and is an impermissible encroachment into the
Judiciary. In support of the petition, Petitioner
respectfully states and alleges as follows:1
PARTIES
1.
Petitioner is a Justice on the Montana
Supreme Court. The position of Justice is of
constitutional creation. Mont. Const., Art VII, § 3(1).
Petitioner has served on the Supreme Court since he
1
Petitioner’s statements herein are made for purposes of this
proceeding, to address the subpoena issued to him individually.
71a
was appointed by Gov. Judy Martz and was sworn in
following a unanimous 50-0 confirmation vote by the
State Senate on March 15, 2001, over 20 years ago.
Petitioner has since stood for election three times, in
both contested and retention elections. Prior to serving
on the Montana Supreme Court, Petitioner practiced
law for nineteen years and was elected to three terms
in the Montana Legislature, including the 51st or
Centennial Session in 1989, serving as a Republican
Representative from then-House District 43 in Lewis
and Clark County, and was selected to be the Majority
Whip of the House of Representatives in 1993.
Petitioner has an affinity for the legislative process,
holds legislators in high regard, and greatly respects
the critical service rendered by legislators to the State
and People of Montana.
2.
Respondent Montana State Legislature,
acting herein by Mark Blasdel, President of the Senate,
and Wylie Galt, Speaker of the House of
Representatives, is the legislative branch of
government for the State of Montana. Mont. Const.,
Art. III, § 1. President Blasdel and Speaker Galt issued
the subpoena that is challenged herein. The 67th
Regular Session of the Montana Legislature is
scheduled to conclude next week.
BACKGROUND
3.
In an original proceeding filed before the
Montana Supreme Court on March 17, 2021, Brown, et.
al. v. Gianforte, OP 21-0125, in which SB 140, a bill
recently passed by the Montana Legislature, is
challenged, Respondent Greg Gianforte, represented by
the Department of Justice, raised concerns about an
72a
email-based membership poll conducted by the
Montana Judges Association concerning SB 140 when
it was legislatively considered. Outside of OP 21-0125,
on April 8, Respondent State Legislature issued a
subpoena to the Department of Administration, which
administers the state computer system, including the
system used by the Judiciary, requiring production of,
inter alia, “[a]ll emails and attachments sent and
received” by the Court Administrator for the judicial
branch, between January 4, 2021 and April 8, 2021.
Such subpoena was issued without notice to the judicial
branch, and required production of the emails in
approximately 24 hours, on April 9, 2021. Court
Administrator McLaughlin was provided a courtesy
copy of the subpoena on the afternoon of April 9, 2021.
However, despite her request for delay and
consultation prior to production of the emails,
particularly regarding potential private and
confidential information therein, the Department of
Administration complied with the request and
provided thousands of emails to the Legislature.2
4.
McLaughlin immediately filed an emergency
motion to quash or enjoin the subpoena with the
Supreme Court, which issued a Temporary Order on
April 11, 2021. The Supreme Court noted that the
Legislature’s subpoena was “facially, extremely broad
2
Recent filings with the Supreme Court by Respondent State
Legislature states that the number of emails produced by the
Department of Administration in response to the McLaughlin
subpoena exceeded 5,000. Motion to Dismiss, p. 2, Declaration of
Kristin Hansen, p. 1, filed April 14, 2021, McLaughlin v. The
Montana State Legislature and the Montana Department of
Administration, OP 21-0173.
73a
in scope,” and that McLaughlin’s filings had
demonstrated “a substantial potential of the infliction
of great harm if permitted to be executed as stated.”
Temporary Order, p.2, April 11, 2021, Bradley, OP
21-0125. McLaughlin has asserted that the
Legislature’s subpoena of the judiciary’s emails
“commands production of documents that by the
breadth requested contain highly confidential,
privileged, and sensitive information.” Petition for
Original Jurisdiction, p. 13, April 12, 2021,
McLaughlin, OP 21-0173.
5.
However, on April 12, 2021, Petitioner, who
is serving as Acting Chief Justice in OP 21-0125,
wherein the Temporary Order was entered, received a
letter from Kristen Hansen, Lieutenant General of the
Montana Department of Justice, filed with the
Supreme Court’s Clerk of Court, stating that the
Department of Justice has been “retained by the
legislative leadership, acting through the Speaker of
the House, Wylie Galt, and Senate President, Mark
Blasdel, to represent the interests of the Montana
State Legislature”—Respondent herein—regarding
McLaughlin’s request for emergency relief. Citing the
Separation of Powers provision of the Montana
Constitution, Art. III, § 1, Hansen wrote:
The Legislative power is broad. In fulfilling its
constitutional role, the Legislature’s subpoena
power is similarly broad. The questions the
Legislature seeks to be informed on through the
instant subpoena directly address whether
members of the Judiciary and the Court
Administrator have deleted public records and
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information in violation of state law and policy;
whether the Court Administrator has performed
tasks for the Montana Judges Association
during taxpayer funded worktime. . . . and
whether current policies and processes of the
Judicial Standards Commission are sufficient to
address the serious nature of polling members of
the Judiciary to prejudge legislation. . . .
The Legislature does not recognize this Court’s
Order as binding and will not abide by it; The
Legislature will not entertain this Court’s
interference in the Legislature’s investigation of
the serious and troubling conduct of the
members of the judiciary.
Hansen Letter, April 12, 2021, attached hereto as
Exhibit B.
6.
Two days later, the statements in the Hansen
Letter were furthered by Respondent State
Legislature’s Motion to Dismiss, filed in OP 21-0173,
wherein Respondent stated the Supreme Court “lacks
jurisdiction to hinder the Legislature’s power to
investigate these matters of statewide importance,”
and that the order of protection sought by McLaughlin
therein “will not bind the Legislature and will not be
followed.” Motion to Dismiss, p. 8, April 14, 2021,
McLaughlin, OP 21-0173. Respondent State
Legislature stated therein it would pursue this course
even if the subpoenaed materials would “tend to
‘disgrace’ the Judicial Branch or render it ‘infamous,”’
citing § 5-5-105(2), MCA. What was being insinuated
by this comment in Respondent’s briefing concerning
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potential “disgrace” to the Judiciary is unknown to
Petitioner.3
7.
On that same day, April 14, 2021, the
Supreme Court received a telephone call from the
Montana Department of Justice advising that
Subpoenas would be served upon the Justices
individually. Petitioner agreed to accept service of the
Subpoenas on behalf of the Justices, and did so that
afternoon, receiving the Legislative Subpoena that is
challenged herein from a Department of Justice
employee. Due to a technical error in the Subpoenas, a
new or corrected Subpoena, Exhibit A, was served upon
Petitioner by a Department of Justice employee on
April 15, 2021. As noted, it requires the production of
extensive documentation related to Petitioner’s work as
a Justice, as further described in Exhibit A, on
Monday, April 19, 2021, at 3:00 p.m.
THE SUBJECT EMAILS AND
COMMUNICATIONS
8.
The COVID-19 pandemic judicial branch
protocols prompted many branch employees, both
judicial staff and Justices, to work remotely, including
3
The Department of Justice has made similar recent out-of-court
statements attacking the Supreme Court. Following the Court’s
order in OP 21-0125, stating the case would be heard by the
remaining six justices who had neither recused themselves nor
participated in the MJA poll about SB 140, so that the
objectionable issue would be removed from the litigation, the
Department of Justice publicly stated, “The Supreme Court is
trying to put the cash back in the vault after they got caught
robbing the bank.” Independent Record, April 8, 2021, Justices will
hear challenge to law.
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during the period of time covered by the Subpoena.
Consequently, the use of email to conduct all aspects of
the business of the Supreme Court multiplied
dramatically from pre-pandemic levels. Transmission
by email of administrative, human resource, case
management, court scheduling, work product, and
other matters became the primarily mode of
communication, often times with overlapping or
multiple topics within a single email.
9.
All emails and communications from
Petitioner’s work accounts or devices demanded by the
Subpoena have been preserved by Petitioner. Further,
since service of the Subpoena, Petitioner has not
deleted any messages or communications on his
personal phone or devices that could conceivably fall
within the demands of the Subpoena, although not all
of these messages and communications have yet been
retrieved. Every effort will be made by Petitioner to
preserve all of these communications for purposes of
this proceeding, including, if necessary, an in camera
review by this Court.
10.
Petitioner believes and therefore alleges that
not a single communication subject to the Subpoena is
or would be a basis for judicial discipline, claims of
bias, including, in the words of the Subpoena, “to
prejudge legislation and issues which have come and
will come before the courts for decision,”
disqualification from any case, a “disgrace” to
Petitioner’s service, as cited by the Subpoena and the
Department of Justice, or that would even be “off-color”
or inappropriate in any way. In short, Petitioner has
nothing to hide. But Petitioner does have something to
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fear, that being a potentially inappropriate intrusion
into the communications of the Judiciary and into a
Justice’s private affairs, and what Petitioner believes
is a recent disturbing pattern of overreaching by the
Department of Justice, sometimes in concert with
Respondent State Legislature, as described above,
which has led inexorably to Respondent’s issuance of
subpoenas to the Justices, including the Subpoena
Petitioner is challenging herein. Because of threatened
harm and injury, both personally and judicially,
Petitioner objects to the Subpoena and seeks the
protection of this Honorable Court.
LEGAL AUTHORITIES AND ARGUMENT
A legislatively initiated subpoena to a member of
the judiciary inherently raises, directly and indirectly,
multiple constitutional issues. Below is a briefing of the
legal principles that govern this dispute and, Petitioner
submits, compel the issuance of declaratory and
injunctive relief. Because the Legislature granted only
several days to react to the Subpoena, Petitioner can
provide only this summary. Should the Court desire to
make further inquiry on any issue, Petitioner would
welcome the opportunity to file supplemental briefing.
I. THE LEGISLATURE’S SUBPOENA POWER IS
NARROWED WHEN DIRECTED TO THE
JUDICIARY.
A. The Legislature has broad subpoena power
within the confines of pursuing a valid
legislative purpose.
Petitioner acknowledges the Legislature’s subpoena
power, which is inherent within the constitutional
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establishment of the legislative branch of government.
Mont. Const., Art. V, § 1; § 5-5-101, MCA, et. seq. When
Congress “seeks information ‘needed for intelligent
legislative action,”’ it is the general duty of all citizens
to cooperate. Trump v. Mazars USA, LLP, _U.S. _, 140
S. Ct. 2019, 2036, 207 L. Ed. 2d 951,970 (2020).
However, “[i]t is the responsibility of the Congress, in
the first instance, to insure that compulsory process is
used only in furtherance ofa legislative purpose.”
Watkins v. United States, 354 U.S. 178, 201, 77 S. Ct.
1173, 1186, 1 L. Ed. 2d 1273, 1294 (1957).
In this proceeding, the legal question will narrow to
whether the Legislature’s Subpoena to Petitioner
satisfies the furtherance of a valid legislative purpose,
or “intelligent legislative action,” by the State
Legislature. Trump, 140 S.Ct. at 2036, 207 L. Ed. 2d at
970. Petitioner will argue herein that the challenged
Subpoena fails to do so. But first, there are
considerations which necessarily limit the range and
nature of permissible legislative purposes when the
target of a legislative subpoena is another branch of
government.
B. Constitutional separation of powers must be
considered and requires a heightened
assessment of a legislature’s purpose.
In Coate v. Omholt, 203 Mont. 488, 662 P.2d 591
(1983), the Montana Supreme Court declared
unconstitutional legislation enacted by the State
Legislature intended to hasten case decisions by
sanctioning judges who failed to meet stated
timeframes. Coate, 203 Mont. 488, 490, 662 P.2d 591,
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592. Addressing separation of powers, the Court
explained the independence of the judiciary generally:
Courts are an integral part of the government,
and entirely independent, deriving their powers
directly from the Constitution, in so far as such
powers are not inherent in the very nature of the
judiciary. A court of general jurisdiction,
whether named in the Constitution or
established in pursuance of the provisions of the
Constitution, cannot be directed, controlled, or
impeded in its functions by any of the other
departments of the government. The security of
human rights and the safety of free institutions
require the absolute integrity and freedom of
action of courts.
Coate, 203 Mont. 488, 490, 662 P .2d 591, 592 (citing
State ex rel. Kostas v. Johnson (Ind. 1946), 69 N.E.2d
592, 595) (emphasis added) (quotations omitted).
In Sullivan v. McDonald, 2006 Conn. Super. LEXIS
2073, the Judiciary Committee of the Connecticut
General Assembly subpoenaed the recently retired
Chief Justice Sullivan of the Connecticut Supreme
Court, commanding him to appear and give testimony
concerning—not a court decision—but the
circumstances surrounding the issuance of the court
decision. Sullivan petitioned a general jurisdiction
court to quash the subpoena. In granting Sullivan’s
request, the court held:
In the absence of express constitutional
authority, the legal authority of the Legislative
Branch to subpoena members of the judiciary
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cannot be coterminous with the broad scope of
the legislature’s constitutional authority to enact
legislation. . . . Otherwise, the legislature’s
authority to compel the testimony of a judicial
officer would be virtually limitless.
....
There must be a constitutional separation of
powers by recognizing that the legislature may
not subpoena a judicial official to give testimony
relating to his official duties or the performance
of judicial functions, except where the
Constitution expressly contemplates such a
direct legislative encroachment into judicial
affairs.
Sullivan, 2006 Conn. Super. LEXIS 2073, * 17-18
(emphasis added). This case is notable here, in light of
the Montana Department of Justice’s statements, noted
above, which equate the State Legislature’s authority
to enact legislation with its authority to issue
subpoenas, without distinction.
The U.S. Supreme Court has required a careful
consideration of separation of powers when reviewing
legislatively initiated subpoenas. In Trump, the
Supreme Court provided a framework to be applied to
inter-branch subpoena disputes. Trump, 140 S.Ct. at
2035, 207 L. Ed. 2d at 968-69 (noting “an approach that
accounts for these concerns” was lacking). The
framework begins with the directive that “courts must
perform a careful analysis that takes adequate account
of the separation of powers principles at stake,”
including both the legislative interests of Congress and
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the unique position of, at issue there, the President.
Trump, 140 S.Ct. at 2035, 207 L. Ed. 2d at 969
(emphasis added). “First, courts should carefully assess
whether the asserted legislative purpose warrants the
significant step” of issuing the subpoena, because
“occasion[s] for constitutional confrontation between
the two branches’ should be avoided whenever
possible.” Trump, 140 S.Ct. at 2035, 207 L. Ed. 2d at
969 (citation, internal quotations omitted) (emphasis
added). “A balanced approach is necessary,” the
Supreme Court explained, that “‘resist[s]’ the ‘pressure
inherent within each of the separate Branches to
exceed the outer limits of its power.”’ Trump, 140 S.Ct.
at 2035, 207 L. Ed. 2d at 969 (citation omitted).
II. THE PURPOSES ASSERTED BY THE
LEGISLATURE DO NOT CONSTITUTE A
“LEGISLATIVE PURPOSE” AS DEFINED BY
LAW, AND THEREFORE DO NOT WARRANT OR
JUSTIFY ISSUANCE OF A SUBPOENA TO
PETITIONER.
The Legislature’s Subpoena served upon Petitioner
sets forth its purposes as follows:
This request pertains to the Legislature’s
investigation into whether members of the
Judiciary or employees of the Judicial Branch
deleted public records and information in
violation of state law and policy; and whether
the current policies and processes of the Judicial
Standards Commission are sufficient to address
the serious nature of polling members of the
Judiciary to prejudge legislation and issues
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which have come and will come before the courts
for decision.
Exhibit A, p. 1.
A. Under the circumstances here, the “Deletion
Investigation” is not a valid legislative
purpose for Petitioner’s Subpoena.
The Legislature’s first proffered purpose for the
Subpoena is to investigate “whether members of the
Judiciary or employees deleted public records and
information.” However, about this concern there is no
mystery. The deletion of information has been widely
reported in numerous news reports and declared in
many court filings. As stated in the Court
Administrator’s petition initiating OP 21-0173, filed
April 12, 2021, “McLaughlin saves some emails and
deletes others, all in the normal course of business. She
knows, as does everyone, that ‘deleted’ does not mean
‘gone forever.”’ And, McLaughlin “inform[ed] the
Montana Legislature that some emails relating [to] the
poll had been deleted in the normal course of
business. . .” Petition, p. 5-6, April 12, 2021,
McLaughlin, OP 21-0173. On April 14, 2021,
Respondent State Legislature filed a motion to dismiss
in OP 21-0173, to which it attached hundreds of emails
from the Judiciary. The accompanying Declaration
from the Legislature’s counsel declared that “over 5,000
emails” have already been produced in response to the
Legislature’s subpoena to DOA Director Giles for the
Judiciary’s emails. Declaration of Kristen Hansen, p.1,
filed April 14, 2021, OP 21-0173. Similarly, in OP 210125, the Declaration and exhibits attached to the
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Respondent State Legislature’s motion to disqualify
included many judicial emails.
Consequently, there has already been a mass
disclosure of the information the Legislature claims it
needs to engage in lawmaking. The Legislature has
already been provided extensive information about the
practices of the Judiciary necessary to satisfy any need
and purpose for enacting public policy—that is, a
lawful “legislative purpose.” How many more
thousands of emails does the Legislature need before it
is prepared to engage in lawmaking? Given this wide
disclosure, any additional information that can be
gleaned from the documentation Petitioner can produce
is negligible and can do nothing to further the
Legislature’s ability to undertake “intelligent
legislative action.” Trump, 140 S.Ct. at 2036, 207 L.
Ed. 2d at 970. Notably, and counter to the stated
purpose to investigate “whether members of the
Judiciary. . . .deleted public records and information,”
the subpoena seeks not information about Petitioner’s
deletion of documents, but, rather, ostensibly
commands that he produce information he necessarily
did not delete. Production of “undeleted” information by
Petitioner offers little support for an investigation into
deleted records, particularly under the strict
constitutional standards that must be applied here.4
4
The confidentiality of judicial deliberations, discussed below, and
the exclusion of the Supreme Court as an agency or public body,
further illustrates that the Legislature does not have a legitimate
interest in the deletion of judicial records.
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Indeed, on this point, courts are to serve as
gatekeepers to ensure legislative subpoenas are
permitted only for clearly demonstrated legislative
purposes. “[C]ourts should be attentive to the nature of
the evidence offered by Congress to establish that a
subpoena advances a valid legislative purpose. The
more detailed and substantial the evidence of
Congress’s legislative purpose, the better.” Trump, 140
S.Ct. at 2036, 207 L. Ed. 2d at 970 (emphasis added).
In contrast, “vague” and “loosely worded” evidence of a
legislative purposes are disfavored. Trump, 140 S.Ct.
at 2036, 207 L. Ed. 2d at 970. “[T]he mere semblance of
legislative purpose would not justify an inquiry. . . .”
Watkins, 354 U.S. at 198, 77 S. Ct. at 1185, 1 L. Ed. 2d
at 1290 (emphasis added). Here, the Legislature’s
proffered purpose provides no “detailed and
substantial” evidence of legislative purpose and is a
loosely worded and vague attempt to state a valid
legislative purpose. Rather, it constitutes the “mere
semblance” of a legislative purpose, and should fail.
Watkins, 354 U.S. 178, 198, 77 S. Ct. 1173, 1185, 1
L. Ed. 2d 1273, 1290.
Courts are also to consider whether “other sources
could provide [the Legislature] the information it
needs,” so that the constitutional conflict can be
avoided. Trump, 140 S.Ct. at 2036, 207 L. Ed. 2d at
970 (emphasis added). As explained above, the
Legislature has already obtained from sources other
than Petitioner “the information it needs” for any valid
legislative purpose.
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B. The second proffered purpose, to investigate
the processes of the Judicial Standards
Commission for addressing the “polling
controversy,” fails to state a valid legislative
purpose for Petitioner’s Subpoena.
The Legislature’s second proffered purpose within
the Subpoena to Petitioner is to investigate “whether
the current policies and processes of the Judicial
Standards Commission are sufficient to address the
serious nature of polling members of the Judiciary to
prejudge legislation and issues which have come and
will come before the courts for decision.” Essentially,
the proffered purpose is to investigate whether the
Judicial Standards Commission (JSC) can adequately
address the “polling controversy” discussed above.
The JSC is of constitutional creation, within Article
VII of the Montana Constitution, The Judiciary. Mont.
Const. Art. VII, § 11. The Constitution directs the
Legislature “to create a judicial standards commission,”
and sets the membership of the JSC. Mont. Const. Art.
VII, § 11(1). The Constitution directs the JSC to
“investigate complaints,” “make rules implementing
this section” of the Constitution, and authorizes the
JSC to “subpoena witnesses and documents.” Mont.
Const. Art. VII, § 11(2). Upon recommendation of the
JSC, the Montana Supreme Court may discipline,
including removal, “any justice or judge” for the
reasons stated in the Constitution. Mont. Const. Art.
VII, § 11(3). The Constitution makes proceedings before
the JSC confidential, “except as provided by statute.”
Mont. Const. Art. VII, § 11(4). Pursuant to the
Constitution, the Legislature has created the JSC and
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enacted statutes governing its administration. Section
3-1-1101, et. seq.
Petitioner concedes the Legislature has a
constitutional role to play in the creation of the JSC
and in the issue of confidentiality, as provided in the
Constitution. While the Legislature has enacted several
related statutes, see § 3-1-1101, MCA, the JSC
functions, consistent with its placement within Article
VII of the Constitution, as part of the Judicial Branch.
Issues of bias, prejudice, misconduct, malfeasance,
ethics, and disability fall squarely within the
Judiciary’s purview.
Whatever role the Legislature may validly play in
the JSC’s operation, that role and the proffered purpose
to investigate the sufficiency of the JSC’s processes to
address the pulling controversy does not state a valid
legislative purpose necessary to support Petitioner’s
Subpoena, for the following reasons. And, to repeat, a
legitimate legislative purpose for this inter-branch
controversy is one for which the Legislature has
proffered sufficient evidence to demonstrate the
Subpoena will further the Legislature’s pursuit of
lawmaking.
First, the Subpoena does not command production
of Petitioner’s communications with the JSC or its
members, or of any documentation related to
Petitioner’s prior experience or work on administrative
issues related to the JSC. Rather, the Subpoena
commands production of Petitioner’s official and
personal communications regarding the polling
controversy, legislation that pended before the 2021
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Montana Legislature, and the Montana Judges
Association (MJA).
Petitioner recognizes that legislation regarding the
JSC pended before the 2021 Legislature, including HB
685, and that an MJA poll was conducted regarding
that bill. In OP 21-0125, involving SB 140, the
Montana Supreme Court recently entered an order
stating that none of the six justices sitting on that case,
including Petitioner, participated in the SB 140 poll
during the session. Order, p. 1., April 7, 2021, Brown,
OP 21-0125 (“the parties are advised that no member
of this Court participated in the [SB 140] poll.”)
Petitioner signed the Order because this was the truth,
but further, it is also the truth that Petitioner did not
participate in any of the MJA polls during the session.
This has already been unequivocally demonstrated by
the thousands of judicial emails the Legislature has
seized and included in filings before the Supreme
Court, which contain the email responses to the polls.
Thus, the Subpoena’s stated purpose of obtaining
documentation of Petitioner’s poll participation has
already been accomplished, and is moot. While it is
theoretically possible that Petitioner could have orally
communicated a vote on the polls, the emails already
produced would appear to eliminate that possibility, as
the vast majority of votes are accounted for in the
emails. Further, the Subpoena to Petitioner does not
expressly command production of oral messages and, in
any event, Petitioner cannot provide orally
transmitted messages in response to this particular
Subpoena.
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It is also theoretically possible that Petitioner could
have exchanged official and private written or
electronic communications about pending legislation
outside of the MJA polling process, which would also be
covered by the Subpoena. However, at some point we
must stop to consider: What possible connection to the
legitimate function of enacting legislation regarding
the JSC is served by a further search of Petitioner’s
communications to determine these details, in the
framework of an inter-branch constitutional dispute?
The U.S. Supreme Court has explained that “efforts to
craft legislation involve predictive policy judgments”
that are “not hamper[ed] . . . when every scrap of
potentially relevant evidence is not available.” Trump,
140 S.Ct. at 2036, 207 L. Ed. 2d at 970 (citing Cheney
v. United States District Court, 542 U. S. 367, 384, 124
S. Ct. 2576, 159 L. Ed. 2d 459 (2004)). Petitioner’s
additional “scraps’’ of information will have no bearing
on the Legislature’s ability to legislate. Under the
gatekeeping duty of the courts to consider “the nature
of the evidence offered” by the Legislature “to establish
that a subpoena advances a valid legislative purpose,”
Trump, 140 S.Ct. at 2036, 207 L. Ed. 2d at 970, the
Subpoena to Petitioner must justify the intrusion, but,
again, woefully fails. The Court should conclude that
this “asserted legislative purpose” fails to “warrant[ ]
the significant step” of issuing a subpoena, and avoid
“the constitutional confrontation.” Trump, 140 S.Ct. at
2035, 207 L. Ed. 2d at 969.
Lastly, the failure of the Subpoena to identify any
specific legislation, any lawful legislative function for
which the information is needed, or even a scheduled
hearing or
meeting for which the commanded
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information is relevant, underscores that there is no
identified legislative purpose at all. This raises the
following, disconcerting, point.
III. THE COURT SHOULD CONSIDER
WHETHER THE SUBJECT SUBPOENA WAS
ACTUALLY ISSUED FOR AN IMPROPER
PURPOSE.
Generally, the Legislature’s subpoena power is for
pursuing policy, not people. The power is “‘justified
solely as an adjunct to the legislative process.”’ Trump,
140 S.Ct. at 2031, 207 L. Ed. 2d at 964 (citation
omitted). The Legislature “may not issue a subpoena
for the purpose of ‘law enforcement,’ because ‘those
powers are assigned under our Constitution to the
Executive and the Judiciary.”’ Trump, 140 S.Ct. at
2032, 207 L. Ed. 2d at 964 (citation omitted). There is
“no ‘general’ power to inquire into private affairs and
compel disclosures,” and there is “no congressional
power to expose for the sake of exposure.” Trump, 140
S.Ct. at 2032, 207 L. Ed. 2d at 964 (internal quotations
omitted). “Investigations conducted solely for the
personal aggrandizement of the investigators or to
‘punish’ those investigated are indefensible.” Trump,
140 S.Ct. at 2032, 207 L. Ed. 2d at 964 (internal
quotations omitted).
A legislative subpoena must “concern a subject on
which legislation could be had.” Eastland v. United
States Servicemen’s Fund, 421 U.S. 491,506, 95 S.Ct.
1813, 44 L.Ed. 2d 324 (1975) (emphasis added). The
2021 legislative session is scheduled to end next week.
The transmittal deadlines have passed. There appears
to be insufficient time remaining for the Legislature to
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consider, process, and enact new legislation, and thus,
legislation regarding the purposes expressed in the
Subpoena cannot “be had” this session. If the
Legislature would offer that the information sought is
for the purposes of future sessions, then why was
Petitioner given only days in which to appear and
produced the commanded material?
The Background section of this Petition sets forth
what Petition believes to inappropriate overreach by
the Department of Justice and the State Legislature.
Given that overreach, the Legislature’s failure to
demonstrate a valid legislative purpose, and the
inability for valid lawmaking to now occur, the Court
should conclude that the record proves the Subpoena
has been pursued inappropriately, particularly
regarding the pursuit of the Petitioner’s private
communications. In other words, not only does the
Subpoena fail for lack of legitimate legislative purpose,
it also fails as an abuse of subpoena authority.
IV.
THERE ARE ADDITIONAL REASONS TO
QUASH THE LEGISLATIVE SUBPOENA ISSUED
TO PETITIONER.
“[R]ecipients of legislative subpoenas retain their
constitutional rights throughout the course of an
investigation,” and “recipients have long been
understood to retain common law and constitutional
privileges” related to the production of materials.
Trump, 140 S.Ct. at 2032, 207 L. Ed. 2d at 965.
Petitioner asserts all of his privileges and immunities
related to his work and the work of the Montana
Supreme Court. The Supreme Court is not a
government or public body, its communications are not
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subject to the open deliberation requirements of the
Montana Constitution, and the justices’
communications must be privileged and confidential.
See generally, Order, In re Selection of a Fifth Member
to the Montana Districting Apportionment Commission,
August 3, 1999. Judges are immune for actions taken
during the lawful discharge of their public duties.
Hartsoe v. McNeil, 2012 MT 221, ¶ 5, 366 Mont. 335,
286 P.3d 1211 (“Judicial immunity is a public policy
designed to safeguard principles of independent
decision making. The principles of judicial immunity
are well established in the United States.”). Petitioner
asserts his constitutional right to privacy, particularly
regarding the Subpoena’s command to produce all
messages “sent or received by your personal” phone.
For example, a comment in a text message received on
Petitioner’s private phone from his daughter, asking,
“Where will people be able to carry now under that
bill?”, will suddenly make his daughter’s words a
subject for legislative oversight.
WHEREUPON, Petitioner requests the following
relief:
1. In light of the threatened great injury to Petitioner,
and the appearance that he is entitled to relief,
Petitioner requests that the Court immediately quash
or stay the Subpoena, or preliminarily enjoin
Respondent from pursuing the Subpoena or issuing
further subpoenas, pending a hearing and pending this
proceeding pursuant to § 27-19-201, MCA. By the time
judgment could be entered in Petitioner’s favor, the
harm would have already been done. Petitioner’s
Declaration is submitted herewith.
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2. That the Court set a hearing on the temporary
order.
3. That the Court declare the Subpoena invalid
pursuant to § 27-8-202, MCA, and permanently enjoin
it pursuant to § 27-19-102, MCA.
4. For such other relief as the Court deems
appropriate.
DATED this 19th day of April, 2021.
/s/ Jim Rice
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EXHIBIT A
MONTANA STATE LEGISLATURE
SUBPOENA
WITNESS: Justice James A. Rice
Montana Supreme Court
Justice Building
215 N. Sanders St.
Helena, Montana 59601
THE MONTANA STATE LEGISLATURE, to Justice
Rice.
You are hereby required to appear at the Montana
State Capitol Building, room 303, in the City of Helena,
Montana, on the 19th day of April, 2021, at 3:00 p.m., to
produce the following documents, unless the documents
are produced sooner:
(1)
(2)
Any and all communications, results, or
responses, related to any and all polls sent to
members of the Judiciary by Court
Administrator Beth McLaughlin between
January 4, 2021, and April 14, 2021;
including emails and attachments sent and
received by your government e-mail account,
jrice@mt.gov, delivered as hard copies and
.pst digital files; as well as text messages,
phone messages, and phone logs sent or
received by your personal or work phones;
and any notes or records of conferences of the
Justices regarding the same.
Any and all emails or other communications
between January 4, 2021 and April 14, 2021
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(3)
regarding legislation pending before, or
potentially pending before, the 2021 Montana
Legislature; including emails and
attachments sent and received by your
government email account, jrice@mt.gov,
delivered as hard copies and .pst digital files;
as well as text messages, phone messages,
and phone logs sent or received by your
personal or work phones; and any notes or
records of conferences of the Justices
regarding the same.
Any and all emails or other communications
between January 4, 2021 and April 14, 2021
regarding business conducted by the
Montana Judges Association using state
resources; including emails and attachments
sent and received by your government e-mail
account, jrice@mt.gov, delivered as hard
copies and .pst digital files; as well as text
messages, phone messages, and phone logs
sent or received by your work phone; and any
notes or records of conferences of the Justices
regarding the same.
This request pertains to the Legislature’s investigation
into whether members of the Judiciary or employees of
the Judicial Branch deleted public records and
information in violation of state law and policy; and
whether the current policies and processes of the
Judicial Standards Commission are sufficient to
address the serious nature of polling members of the
Judiciary to prejudge legislation and issues which have
come and will come before the courts for decision.
95a
Please note this request excludes any emails,
documents, and information related to decisional
case-related matters made by Montana justices or
judges in the disposition of such matters. Any
personal, confidential, or protected documents or
information responsive to this request will be redacted
and not subject to public disclosure.
Pursuant to section 5-5-101, MCA, et seq., a person
cannot refuse to testify to any fact or produce any
paper concerning which the person is examined for the
reason that the witness’s testimony or the production
of the paper tends to disgrace the witness or render the
witness infamous. Section 5-5-105, MCA, does not
exempt a witness from prosecution and punishment
for perjury committed by the witness during the
examination.
DATED in Helena, Montana, this 15th day of April,
2021.
By: /s/ Mark Blasdel
Senator Mark Blasdel, President of the Montana
Senate.
By: /s/ E. Wylie Galt
Representative Wylie Galt, Speaker of the Montana
House of Representatives.
96a
EXHIBIT B
AUSTIN KNUDSEN [Seal] STATE OF MONTANA
April 12, 2021
Dear Acting Chief Justice Rice,
The Department of Justice, acting through the
Lieutenant General, undersigned, has been retained by
legislative leadership, acting through the Speaker of
the House, Wylie Galt, and Senate President, Mark
Blasdel, to represent the interests of the Montana
State Legislature to resolution of the ex parte Motion
of Beth McLaughlin filed in the Montana Supreme
Court on Saturday, April 10, 2021, outside of business
hours and without opportunity for response.
We have reviewed the Court’s Order, issued Sunday,
April 11, 2021, presuming to temporarily quash the
Legislature’s duly authorized subpoena to the Director
of the Department of Administration (DOA), and
simultaneously, attempting to cure the multiple
procedural irregularities presented in the filing
through the mechanism of giving the Court
Administrator a briefing schedule. As the Court
recognizes in its Order, none of the Legislature, DOA,
and the Court Administrator, are parties to this action.
Further, the Court correctly notes that the
Legislature’s subpoena has no relation to the pending
proceeding in OP 21-0125 and is not properly filed in
that suit. In fact, the Court’s discomfort with the
procedural posture of this Motion is well taken. The
subpoena at issue is wholly unrelated to the pending
matter and concerns the ethical conduct of the Court
97a
Administrator and members of the Montana State
Judiciary. This Court cannot assume the Motion is
properly filed in OP 21-0125 because it is not.
Article III, Section 1 of the Montana Constitution,
states, in full, as follows:
Separation of Powers. The power of the government
of this state is divided into three distinct
branches -legislative, executive, and judicial. No person
or persons charged with the exercise of power properly
belonging to one branch shall exercise any power
properly belonging to either of the others, except as in
this constitution expressly directed or permitted.
The Legislative power is broad. In fulfilling its
constitutional role, the Legislature’s subpoena power is
similarly broad. The questions the Legislature seeks to
be informed on through the instant subpoena directly
address whether members of the Judiciary and the
Court Administrator have deleted public records and
information in violation of state law and policy;
whether the Court Administrator has performed tasks
for the Montana Judges Association during taxpayer
funded worktime in violation of state law and policy;
and whether current policies and processes of the
Judicial Standards Commission are sufficient to
address the serious nature of polling members of the
Judiciary to prejudge legislation and issues which have
come and will come before courts for decision.
Every employee of the State of Montana is responsible
to protect the constitutional privacy interests of
individuals as required by law. Nothing authorizes the
public release of confidential information under any
circumstance. It is a flailing argument by the Court
98a
Administrator to suggest the Legislature, when
reviewing documents produced in response to
subpoena, would not understand and act on its duty to
redact personal or private information, and there is no
suggestion that would ever have happened in this
matter.
The Legislature does not recognize this Court’s Order
as binding and will not abide it. The Legislature will
not entertain the Court’s interference in the
Legislature’s investigation of the serious and troubling
conduct of members of the Judiciary. The subpoena is
valid and will be enforced. All sensitive or protected
information will be redacted in accordance with law. To
the extent there is concern, upon production, the
Legislature will discuss redaction and dissemination
procedures with the Court Administrator.
Sincerely,
/s/ Kristin Hansen
Kristin Hansen
Lieutenant General
Montana Department of Justice
99a
APPENDIX 6
Jim Rice
Montana Supreme Court
215 North Sanders
PO Box 203001
Helena, MT 59620-300101
Telephone: 1-406-444-5573
Fax: 1-406-444-3274
Email: jrice@mt.gov
MONTANA FIRST JUDICIAL DISTRICT
COURT, LEWIS AND CLARK COUNTY
Cause No. ADV 2021 451
[Filed: April 19, 2021]
__________________________________________
JUSTICE JIM RICE,
)
)
Petitioner,
)
)
vs.
)
)
THE MONTANA STATE LEGISLATURE, )
by Senator Mark Blasdel, President of the
)
Senate, and Representative Wylie Galt,
)
Speaker of the House of Representatives,
)
)
Respondents.
)
__________________________________________)
100a
DECLARATION OF JIM RICE
1.
The statements made herein are based on my
personal knowledge, and I am competent to testify
regarding the same.
2.
Court.
I am a Justice on the Montana Supreme
3.
I am serving as Acting Chief Justice in the
matter of Brown, et. al. v. Gianforte, OP 21-0125,
currently pending before the Montana Supreme Court.
4.
On April 14, 2021, I was served, by an
individual who advised me he worked for the
Department of Justice, with a Subpoena issued by the
Montana State Legislature. Due to a technical error in
the Subpoena, I was served a new or corrected
Subpoena by the same Department of Justice
individual on April 15, 2021.
5.
The Legislative Subpoena requires that I
appear at the State Capitol Building and produce
certain documentation, as described therein, on
Monday, April 19, 2021, at 3 p.m. The Subpoena
commands that I produce communications from both
my “personal and work phones.”
6.
A true and correct copy of the Subpoena has
been provided to the court with the Petition I have filed
herein.
7.
In my capacity as a Justice of the Montana
Supreme Court, I send and receive a large number of
emails related to my duties as a Justice on my
government email account.
101a
8.
Emails sent to my government email account
are not received on my personal email accounts or
devices, and I cannot send emails on my government
account from those devices.
9.
I believe that great or irreparable harm to me
and my judicial office is likely to occur if the Subpoena
is not temporarily quashed, enjoined or stayed. This
includes the improper intrusion into the province of the
Judiciary, my work product as a Justice, and the
private communications on my personal phone. By the
time judgment could be entered in Petitioner’s favor,
the harm would already have been done.
10.
In accordance with Section 1-6-105, MCA, I
declare under penalty of perjury and under the laws of
the State of Montana that the foregoing is true and
correct.
DATED this 19 day of April, 2021
Signed in Helena, Montana.
By: /s/ Jim Rice
Jim Rice
102a
APPENDIX 7
MONTANA FIRST JUDICIAL DISTRICT
COURT, LEWIS AND CLARK COUNTY
Cause No. ADV 2021 451
[Filed: April 19, 2021]
__________________________________________
JUSTICE JIM RICE,
)
)
Petitioner,
)
)
v.
)
)
THE MONTANA STATE LEGISLATURE, )
by Senator Mark Blasdel, President of the
)
Senate, and Representative Wylie Galt,
)
Speaker of the House of Representatives,
)
)
Respondents.
)
__________________________________________)
ORDER
Having considered the Petition for Declaratory and
Injunctive Relief filed herein, and the Emergency
Request to Quash or Enjoin Legislative Subpoena
pending further proceedings before this Court, which
Subpoena commands Petitioner to appear today, April
19, 2021, at 3:00 p.m., before the Montana State
Legislature, the Court concludes an appropriate basis
for temporary relief has been demonstrated. Therefore,
103a
the Legislative [M3] Subpoena is [quashed] [enjoined]
[stayed] pending further proceedings.
Dated this 19th day of April, 2021.
/s/ Michael T. Menahan
District Court Judge
[* A hearing on Justice Rice’s emergency request shall
be heard on April 29, 2021 at 2:30 p.m. before Judge
McMahon. /s/ Michael T. Menahan]
104a
APPENDIX 8
SPECIAL JOINT SELECT COMMITTEE ON
JUDICIAL TRANSPARENCY AND
ACCOUNTABILITY
THE MINORITY REPORT TO THE 67TH
MONTANA LEGISLATURE
THE MINORITY REPORT ON JUDICIAL
TRANSPARENCY AND ACCOUNTABILITY
[April 2021]
This select committee, and subsequent committee
report, are part of a coordinated effort to attack and
smear the independent judiciary by Republicans in the
Legislature and the Executive Branch.
Throughout the 67th Legislative Session, Republican
leaders have been told by legislative attorneys the
legislation they’re trying to pass violates our Montana
Constitution. Republicans know full well these bills
will likely be held unconstitutional in the court, so the
Republicans in the Legislature conspired with the
Governor’s Office to hack the judiciary’s records in an
effort to smear and delegitimize the courts.
We believe this is an attack on our system of checks
and balances, and an attack on the very rule of law
itself. We struggle to understand the purpose of this
committee and its report. Mason’s Manual lists the
following limitations that apply to the Legislature’s
investigation powers:
105a
“An investigation instituted for political
purposes and not connected with intended
legislation or with any of the matters upon
which a house should act is not a proper
legislative proceeding and is beyond the
authority of the house or legislature.”
(Mason’s Manual, pp 566-567)
The Montana Constitution clearly outlines the
constitutional process within the judicial branch to
discipline or remove judges through the independent
Judicial Standards Commission, not through the
legislative branch. Article VII, Section 11 states upon
the recommendations of the Commission, the Montana
Supreme Court may:
(a) Retire any justice or judge for disability
that seriously interferes with the
performance of his duties and is or may
become permanent; or
(b) Censure, suspend, or remove any justice
or judge for willful misconduct in office,
willful and persistent failure to perform his
duties, violation of canons of judicial ethics
adopted by the supreme court of the state
of Montana, or habitual intemperance.
The Montana Constitution takes precedence over any
other statute the legislative and executive branch can
enact. We believe this committee, and its actions, were
set up for political purposes to further undermine our
independent courts, and is therefore an illegitimate
legislative proceeding.
106a
All questions the committee wanted answered by the
Montana Supreme Court were sent to Chairman Hertz
and committee members in a letter from Chief Justice
McGrath on Friday, April 16, 2021 before the
committee met.
The court provided answers on the work of the
Montana Judges Association (MJA) to inform the
legislature on bills relating to the judiciary. The letter
explained the use of polls to district court judges on
rare occasions to determine whether MJA should
support, oppose, or remain neutral towards proposed
legislation relating to the judiciary. Montana Supreme
Court Justices do not participate in these polls. The
practice of MJA contacting judicial members using
state resources is a common practice that occurs every
session and is the practice of other associations who
represent government organizations, such as law
enforcement officers. Their participation in the
legislative process on these limited matters benefits the
legislature and is consistent with Rule 3.2 of the
Montana Canons of Judicial Conduct.
Furthermore, the letter states these polls relate only to
matters of public policy to inform the legislature and by
no means indicates how a judge will rule on possible
litigation or the constitutionality of a law. Our
independent judiciary’s role is to set aside personal
views and make decisions solely on the law and its
constitutionality. There is zero evidence of any
misconduct.
Instead, the actions by the executive branch raise
serious questions regarding that branch’s own conduct,
the conduct of Department of Administration Acting
107a
Director (DOA) Misty Ann Giles and her superiors that
failed to safeguard confidential and private information
unrelated to this matter–exposing the state to
significant legal liability.
On Friday April 9, 2021, Acting Director Giles was
served with a purported subpoena by Senate Judiciary
Chairman Keith Regier to appear before the legislature
with documents from the judicial branch by the end of
the day. The subpoena in question asked for records
from a separate branch of government by using the
executive branch to go through the back door of the
state email servers to produce these records. Emails
and phone records obtained by Senate Minority Leader
Cohenour show Giles was aware of the subpoena well
before it was issued on Friday and was in constant
communication with the Governor’s Office about
completing the request. Records show Acting Director
Giles’ eagerness to produce these records as soon as
possible, with no privacy review, in what can only be
presumed as an attempt to outrun a court order by the
Montana Supreme Court to quash a legislative
subpoena to prevent private and sensitive case
information from being released. While the executive
branch may hold these records on the state servers,
they are not the owners of these records but rather the
custodians. It is unprecedented for the executive
branch to essentially hack into the judicial branch’s
records, without consent or providing any opportunity
to review the records for privileged or confidential
information affecting the constitutionally-protected
privacy rights of third parties.
108a
The contents of the records, as described in Ms.
McLaughlin’s court filings, included private personal
and medical information, private information regarding
Youth Court Cases, information on active security
threats to judges and exchanges with law enforcement,
and Judicial Standards Commission information. In
releasing this information to Legislative Republicans
and their staff, Acting Director Giles has created
immense legal liability for the State of Montana and
potentially violated the constitutionally-protected
privacy rights of third parties who have absolutely
nothing to do with MJA or the SB140 poll. Her rush to
outrun an impending Court order on the improper
subpoena could cost Montana taxpayers dearly when
lawsuits inevitably follow.
In conclusion, the minority does not support the
creation of committees for political theater. This is a
waste of public resources and an embarrassment to the
dignity of the Legislature. The only purpose of this
select committee is to undermine and smear the
judicial branch, and delegitimize any future decisions
that may strike down unconstitutional actions of this
body. Our own lawyers in the Legislature have warned
us this is a likely consequence of passing laws that
violate Montana’s constitutional protections for liberty.
Republican legislators and their staff have had their
questions answered by the Montana Supreme Court
and there is no evidence of misconduct by the judiciary
as it relates to the work of MJA or the use of public
resources to contact members. Any further work by this
committee is purely political theater. If this episode has
any lessons for our system of checks and balances, it is
109a
that the executive branch and the Department of
Administration must be held accountable for using
their position as custodians for the records of a
separate branch of government, to exploit that position
for political gain. DOA must work with the separate
branches of government to develop a responsible
process for the release of any confidential records in its
possession. This is essential to reduce costly legal
liability for taxpayers when DOA’s releases violate the
constitutional rights of Montanans and to ensure our
system of checks and balances is protected.
/s/ Diane Sands
/s/ Kim Abbott
SENATOR DIANE SANDS REPRESENTATIVE
Senate District 49
KIM ABBOTT
House Minority Leader
110a
APPENDIX 9
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0173
[Filed: April 26, 2021]
__________________________________________
BETH McLAUGHLIN,
)
)
Petitioner,
)
)
v.
)
)
The MONTANA STATE LEGISLATURE,
)
and the MONTANA DEPARTMENT
)
of ADMINISTRATION,
)
)
Respondents.
)
__________________________________________)
PETITIONER’S NOTICE OF ADDITIONAL
LEGISLATIVE SUBPOENA
111a
APPEARANCES:
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P. O. Box 9199
Missoula, MT
59807-9199
Tel: (406) 543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
Counsel for Petitioner
Kristin Hansen
Lieutenant General
Derek J. Oestreicher
General Counsel
OFFICE OF THE
ATTORNEY GENERAL
215 N. Sanders
P. O. Box 201401
Helena, MT 59620-1401
Tel: (406) 444-2026
Fax: (406) 444-3549
khansen@mt.gov
derek.oestreicher@mt.gov
Counsel for Respondent
Montana State
Legislature
Michael P. Manion
STATE OF MONTANA
DEPARTMENT OF
ADMINISTRATION
P. O. Box 200101
Helena, MT 59620-0101
Tel: (406) 443-3033
Fax: (406) 444-6194
mmanion@mt.gov
Dale Schowengerdt
CROWLEY FLECK
900 N. Last Chance Gulch
Helena, MT 59601
Tel: (406) 457-2040
Fax: (406) 449-5149
dschowengerdt@crowley
fleck.com
Attorneys for
Respondent Montana
Department of
Administration
Attorneys for
Respondent Montana
Department of
Administration
112a
Petitioner Beth McLaughlin submits this notice to
advise the Court of yet another Subpoena served by
Respondent Montana State Legislature seeking her
documents. The Subpoena is attached hereto as Exhibit
A.1
The Subpoena originally at issue in this case, dated
April 8, 2021, was served on Respondent Montana
Department of Administration. That Subpoena was
temporarily quashed by this Court’s Temporary Order
on April 11, 2021.
The Legislature advised the Court the next day that
it “does not recognize this Court’s order as binding and
will not abide it.” (Letter from Kristin Hansen to
Justice Rice, April 12, 2021.) True to its word, the
Legislature reissued what was essentially the same
Subpoena to the Department of Administration on
April 13, 2021–and it commanded production of those
same documents at 3:00 p.m. that day. Despite seeking,
once again, McLaughlin’s emails and attachments,
neither she nor the Court (to her knowledge) was
provided a copy of the Subpoena or even informed of its
existence, thereby depriving her of any opportunity to
object. She and her counsel only learned of the new
1
McLaughlin’s Petition for Original Jurisdiction was based on a
legislative subpoena dated April 8, 2021. She was then served with
a revised legislative subpoena on April 19, 2021, prompting her
Emergency Motion to Quash Revised Legislative Subpoena. The
subpoena attached to this Notice, therefore, is the third subpoena
seeking McLaughlin’s documents of which she is aware (not
including the subpoenas issued to the justices of the Montana
Supreme Court, which seek her documents as well).
113a
Subpoena by chance, on April 21, 2021, and submit it
herewith for the Court’s consideration.
Thankfully the Department of Administration
abided by the Court’s Temporary Order and did not, to
McLaughlin’s knowledge, comply with the April 13,
2021 Subpoena. The Court has made clear, in its April
16, 2021 Order, that “any subpoenas issued by the
Montana State Legislature for electronic judicial
communications” are temporarily stayed. (Emphasis
added.)
McLaughlin submits this notice so the Court has a
complete record in which to evaluate the important
issues in this case. This, in turn, will ensure the
Court’s ultimate decision encompasses and considers
all Subpoenas and all conduct.
Dated this 26th day of April, 2021.
BOONE KARLBERG P.C.
/s/ Randy J. Cox
Randy J. Cox
[*** Certificate of Service omitted for printing
purposes***]
114a
EXHIBIT A
MONTANA STATE LEGISLATURE
SUBPOENA
WITNESS: Director Misty Ann Giles
MT Dept. of Administration
125 N. Roberts St.
Helena, Montana 59620
THE MONTANA STATE LEGISLATURE, to
Director Misty Ann Giles.
The Montana Legislature is conducting an
investigation of state records retention protocols,
improper use of government time and resources, and
the application of the judicial standards commission’s
enforcement authority.
You are hereby required to appear at the Montana
State Capitol Building, room [president’s office], in the
City of Helena, Montana, on the 13th day of April, 2021,
at 3:00 p.m., to produce the following documents:
(1)
(2)
(3)
Any emails and attachments responsive to
the Legislature’s April 7th subpoena which
have not yet been delivered.
All emails and attachments sent and received
by Court Administrator Beth McLaughlin
between April 8, 2021, and April 12, 2021
delivered as hard copies and .pst digital files.
Any and all recoverable deleted e-mails sent
or received by Court Administrator Beth
McLaughlin between April 8, 2021, and April
115a
12, 2021 delivered as hard copies and .pst
digital files.
Please note, as with the Legislature’s April 7, 2021,
subpoena to you, this request excludes any emails and
attachments related to decisional case-related matters
made by Montana justices or judges in the disposition
of such matters. Please redact, as necessary, any
personal, confidential, or protected documents or
information responsive to this request.
Pursuant to section 5-5-101, MCA, et seq., a person
cannot refuse to testify to any fact or produce any
paper concerning which the person is examined for the
reason that the witness’s testimony or the production
of the paper tends to disgrace the witness or render the
witness infamous. Section 5-5-105, MCA, does not
exempt a witness from prosecution and punishment for
perjury committed by the witness during the
examination.
DATED in Helena, Montana, this 13th day of April,
2021.
By: /s/ Mark Blasdel
Senator Mark Blasdel, President of the Montana
Senate.
116a
APPENDIX 10
IN THE SUPREME COURT OF THE
STATE OF MONTANA
No. OP 21-0173
[Filed: April 28, 2021]
__________________________________________
BETH McLAUGHLIN,
)
)
Petitioner,
)
)
v.
)
)
The MONTANA STATE LEGISLATURE,
)
and the MONTANA DEPARTMENT
)
of ADMINISTRATION,
)
)
Respondents.
)
__________________________________________)
PETITIONER’S RESPONSE TO
RESPONDENT’S MOTION TO DISMISS
117a
APPEARANCES:
Randy J. Cox
BOONE KARLBERG P.C.
201 West Main, Suite 300
P. O. Box 9199
Missoula, MT
59807-9199
Tel: (406)543-6646
Fax: (406) 549-6804
rcox@boonekarlberg.com
Counsel for Petitioner
Kristin Hansen
Lieutenant General
Derek J. Oestreicher
General Counsel
OFFICE OF THE
ATTORNEY GENERAL
215 N. Sanders
P. O. Box 201401
Helena, MT 59620-1401
Tel: (406) 444-2026
Fax: (406) 444-3549
khansen@mt.gov
derek.oestreicher@mt.gov
Counsel for Respondent
Montana State
Legislature
Michael P. Manion
STATE OF MONTANA
DEPARTMENT OF
ADMINISTRATION
P. O. Box 200101
Helena, MT 59620-0101
Tel: (406) 443-3033
Fax: (406) 444-6194
mmanion@mt.gov
Counsel for Respondent
Montana Department of
Administration
118a
Respondent Montana State Legislature does not
dispute Petitioner Beth McLaughlin has met the
requirements for original jurisdiction under
M.R.App.P. 14. Instead, it argues:
(1)
legislative subpoenas are immune from
judicial review, and
(2)
a conflict of interest precludes the Court from
ruling.
Both arguments are wrong.
A. Jurisdiction.
The Court has recognized its “exclusive adjudicatory
authority” under the Montana Constitution “regarding
the scope and application of the legislative subpoena
power.” (4/16/21 Order.) “Unlike the English practice,”
ripe with “the evil effects of absolute power,” in
America “from the very outset the use of contempt
power by the legislature was deemed subject to judicial
review.” Watkins v. U.S., 354 U.S. 178, 192 (1957).
The Court’s authority is also expressed in very laws
passed by the Legislature. These define “subpoena” to
include one seeking testimony or documents before a
“judge, justice, or other officer authorized to administer
oaths or take testimony,” MCA §§ 26-2-101, 102(2),
which includes the Legislature, MCA § 5-5-201. Thus,
legislative subpoenas are limited by MCA § 26-2-401.
Moreover, to the extent a legislative statutory/interim
committee subpoena is disobeyed, Title 5 (“Legislative
Branch”) expressly provides for enforcement by the
judiciary. MCA § 5-11-107(2). (Ex. A, 6.)
119a
The Legislature claims unfettered authority to
investigate perceived impropriety “as the check and
balance for the judicial branch,” but it misunderstands
its role. The Legislature does not sit in judgment of
other branches, and has no subpoena power “for the
sake of exposure.” Watkins, 354 U.S. at 200. Its own
rules recognize it “has no legal status . . . to establish
an extraordinary tribunal for the trial of judicial and
other officers. . . .” (Legislative Memorandum, Ex. A.)
Its check and balance comes through the enactment of
legislation, and its subpoena power is “justified solely
as an adjunct to the legislative process.” Id.
B. Conflict of Interest.
The Legislature posits that because this case is
brought by an individual whom the Justices know and
work with, there is a “conflict of interest” which
“requires recusal of, at minimum, the entire panel of
Justices.” Not so. Courts commonly address conflicts of
interest without recusal.
A compelling example is Cheney v. U.S. Dist. Court,
541 U.S. 913 (2004), where Justice Scalia’s impartiality
was challenged after he was on a hunting trip with
Vice President Cheney, a named party. Justice Scalia
denied the recusal motion himself, explaining:
. . . While the political branches can perhaps
survive the constant baseless allegations of
impropriety that have become the staple of
Washington reportage, this Court cannot. The
people must have confidence in the integrity of
the Justices, and that cannot exist in a system
that assumes them to be corruptible by the
120a
slightest friendship or favor, and in an
atmosphere where the press will be eager to find
foot faults.
Id. at 928.
The Legislature assumes this Court is “corruptible”
because it knows McLaughlin and judicial
communications might be disclosed. This falls far short
of demonstrating the Court cannot be impartial in
evaluating the appropriate scope of legislative
subpoena power in Montana.
The Legislature cites the Code of Judicial Conduct,
yet tellingly declines to discuss or apply those rules.
Rule 2.12, M.C.Jud.Cond., lists the circumstances
requiring disqualification. None exist here.
Even if they did, “wherever it becomes necessary for
a judge to sit even where he has an interest—where no
provision is made for calling another in, or where no
one else can take his place—it is his duty to hear and
decide, however disagreeable it may be.” Reichert v.
State, 2012 MT 111, ¶ 36 n.5, 365 Mont. 92, 278 P.3d
455. In Reichert, the justices declined to recuse
themselves from reviewing an initiative to change
judicial selection procedures, even though the law
“could possibly” affect their own re-election:
. . . Like sitting Supreme Court justices, district
court judges have “the potential” to run for a
seat on this Court in the future, “could possibly”
be prevented by LR-119 from getting elected,
and thus (under Legislators’ theory) have an
“interest” in the outcome of this case. That being
so, the rule of necessity would apply and none of
121a
the justices would be disqualified. See ¶37,
supra; see also Mont. Code of Jud. Conduct, Rule
2.12 cmt.[3] (“The rule of necessity may override
the rule of disqualification.”).
Reichert, ¶ 44.
Here too, it is “highly speculative” a potential
“interest” in the outcome of McLaughlin’s case renders
the justices incapable of impartiality, and the rule of
necessity applies nevertheless.
The Legislature’s only other authority on this point
is Walker v. Birmingham, 388 U.S. 307 (1967). Walker
had nothing to do with judicial disqualification, but its
holding is instructive: A party who has been
temporarily enjoined cannot “bypass orderly judicial
review of the injunction before disobeying it.” Id. at
320. Because “no man can be judge in his own case,” an
enjoined party is not “free to ignore all the procedures
of law.” Id. at 320-21. Despite an “impatient
commitment to [one’s] cause . . . respect for judicial
process is a small price to pay for the civilizing hand of
law, which alone can give abiding meaning to
constitutional freedom.” Id. at 321. Here, by declaring
its subpoena power free from any judicial process, the
Legislature is acting as its own judge.
C. Scope.
The key issue is “the scope, limitations, and
parameters to be applied by courts when the
Legislature exercises its authority to obtain
information and competing interests are presented.”
(4/16/21 Order.) The Legislature’s own rules recognize
“the power to investigate must be exercised for a proper
122a
legislative purpose related to enacting law. . . .” (Ex. A.)
That power is most limited when directed to another
government branch, and must be articulated with
“undisputed clarity.” Watkins, 354 U.S. at 214.
The Legislature claims investigation is necessary to
expose “violation of state law and policy.” That, by
definition, is not a legitimate legislative purpose, as it
does not relate to “proposed or possibly needed
statutes” or “the administration of existing laws.” Id. at
187 (distinguishing “administration” from “violation” of
laws, as the latter invokes “the functions of the
executive and judicial departments of government”).
The Legislature also claims a need to investigate
the Judicial Standards Commission, but exclusive
jurisdiction over judicial standards is vested with the
Commission. Mont. Const. Art. VII, § 11. The
Legislature’s role is limited to “creat[ing]” the
Commission and “providing for the appointment” of its
members. Id.
Nor is there evidence, much less “detailed and
substantial evidence,” that the stated legislative
purpose is real. Trump v. Mazars USA, LLP, 140 S. Ct.
2019, 2025 (2020). While McLaughlin deleted some
emails she regarded as ministerial from her computer,
she knew the emails would be retained on the State
server. And they were. No law or policy prohibited this
practice, and there is zero evidence any email was
“destroyed.” To the contrary, the Legislature has
collected over 5,000 of McLaughlin’s emails.
Lastly, despite the requirement that a subpoena
directed to a co-equal branch be “no broader than
123a
reasonably necessary,” Trump, 140 S. Ct. at 2025, the
subpoenas at issue encompass materials with no nexus
to the stated legislative objective and which are
protected by the judicial privilege and myriad privacy
rights.
CONCLUSION
The Court has jurisdiction to review the legislative
subpoenas, which are no more valid than if legislators
wanted to wander around a judge’s chambers, turning
over pieces of paper to see what they said. The Motion
to Dismiss must be denied.
Dated this 28th day of April, 2021.
BOONE KARLBERG P.C.
/s/ Randy J. Cox
Randy J. Cox
[*** Certificates omitted for printing purposes***]
Exhibit Index
• Exhibit A – April 18, 2018 Montana Legislative
Services Division Memorandum
124a
Exhibit A
[THE GREAT SEAL OF THE STATE OF MONTANA]
Montana Legislative
Services Division
Legal Services Office
PO BOX 201706
Helena, MT 59620-1706
(406) 444-3064
FAX (406) 444-3036
April 18, 2018
TO:
Representative Ron Ehli, Vice Chair, Special
Select Committee on State Settlement
Accountability
FR:
Todd Everts, Chief Legal Counsel
RE:
Information Request Regarding the Montana
Legislature’s Investigative Authority
In anticipation of the organizational meeting on April
25, 2018, of the Special Select Committee on State
Settlement Accountability, you requested information
regarding the investigative authority of the Montana
Legislature and its legislative committees and staff.
This memorandum is in response to that request.
MEMORANDUM
I.
Background
On March 16, 2018, pursuant to House Rules 30-20(7)
and (8) and Senate Rule 30-10(4), the Speaker of the
House and the President of the Senate jointly
appointed the Special Select Committee on State
Settlement Accountability to investigate executive
branch confidential settlements paid out to public
125a
employees. The Special Select Committee is comprised
of six Republicans and four Democrats. Leadership
appointed Senator Nels Swandal as chair and
appointed Representative Ron Ehli as vice chair of the
Special Select Committee.
II.
Investigative Authority of the Montana
Legislature and Its Legislative Committees
and Staff
It has been consistently recognized by the courts and
uniformly reflected in constitutional and parliamentary
law that a legislative body has the clear and very broad
authority to conduct legislative investigations to gather
and evaluate information to make wise and timely
policy judgements inherent and indispensable in the
power of enacting law.1 A legislative body’s inherent
power to investigate may be exercised directly or
through a duly authorized committee.2 A legislative
body’s investigative power is not absolute and there are
limitations. The presumption of constitutionality of
legislative actions applies to legislative investigations.3
However, the power to investigate must be exercised
for a proper legislative purpose related to enacting law,
and the application and exercise of the legislative
investigation power must protect the rights of citizens
and adhere to all constitutional protections related to
1
Mason’s Manual of Legislative Procedure (2010), p. 561;
Sutherland Statutory Construction (2010), p. 596.
2
Mason’s Manual, p. 569; Sutherland, p. 570.
3
Sutherland, p. 578.
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privacy, life, liberty, and property.4 The power to
investigate the private affairs of a citizen only exists
when the investigative authority exercised is directly
related to a legitimate legislative purpose.5
A. Source of Legislative Investigative Authority
The organic source of the Montana Legislature’s
investigative powers can be found in Article V, section
1, of the Montana Constitution, which provides: “The
legislative power is vested in a legislature consisting of
a senate and a house of representatives.” The Montana
Constitution further provides that:
Each house shall judge the election and
qualifications of its members. It may by law vest
in the courts the power to try and determine
contested elections. Each house shall choose its
officers from among its members, keep a journal,
and make rules for its proceedings. Each house
may expel or punish a member for good cause
shown with the concurrence of two-thirds of all
its members.6
With Montana’s constitutional advent of a bicameral
Legislature, the power to investigate resides as a
separate and distinct power in each house of the
4
Mason’s Manual, p. 566; Article II, section 10, of the Montana
Constitution.
5
Mason’s Manual, p. 566; Sutherland, pp. 578-583.
6
Article V, section 10(1), of the Montana Constitution.
127a
Legislature.7 However, both the Montana Senate and
the House of Representatives may jointly appoint an
investigative committee.8
Constitutional investigative powers also reside in
specific administrative committees and interim
committees. Article V, section 10(4), of the Montana
Constitution provides that the Legislature may
establish a Legislative Council and other interim
committees and that the Legislature shall establish a
legislative post-audit committee that shall supervise
post-auditing duties as provided by law.
Other provisions of the Montana Constitution that
buttress the Legislature’s investigative authority
include Article II, sections 8 and 9, the public’s
constitutional right to participate in the
decision-making process of state government and the
public’s right to examine documents and observe the
deliberations of all public bodies or agencies of state
government. Synchronized with the public’s right to
know and participate is the constitutional requirement
that all committee meetings and hearings of the
Legislature be open to the public.9
In addition to the Constitution, the bulk of the
Montana Legislature’s investigative authority resides
7
Article V, sections 1 and 10, of the Montana Constitution;
Mason’s Manual, p. 562.
8
Rules of the Montana Legislature, Joint Rules 30-10 and 30-20;
House Rules 30-20(7) and (8); and Senate Rule 30-10(4).
9
Article V, section 10 (3), of the Montana Constitution.
128a
in statute with respect to subpoenas, contempt,
compelling attendance of a witness, immunity of a
witness, administering oaths, powers of statutory and
interim committees related to legislative hearings,
authority of the Legislative Services Division on behalf
of committees to investigate state government
activities, and authority of the legislative auditor and
the legislative fiscal analyst to access confidential
information.10
The Rules of the Montana Legislature offer little detail
regarding the Legislature’s investigative authority
other than describing the authority of the Speaker and
the President to issue subpoenas and referencing that
Mason’s Manual of Legislature Procedure (2010)
governs the proceedings of the Senate and the House in
all cases not governed by the rules.11 Mason’s Manual
devotes an entire chapter on the source, scope, exercise,
and limitations of legislative bodies’ investigative
powers.12
10
Subpoenas (5-5-101 and 5-5-102, MCA), contempt (5-5-103,
MCA), compelling attendance of witness (5-5-104, MCA), immunity
of a witness (5-5-105, MCA), administering oaths (5-5-201, MCA),
authority of the Legislative Services Division on behalf of
committees to investigate state governmental activities (5-11-106,
MCA), powers of statutory and interim committees related to
legislative hearings (5-11-107, MCA), and authority of the
legislative auditor and the legislative fiscal analyst to access
confidential information (5-12-303 and 5-13-309, MCA).
11
Rules of the Montana Legislature, Joint Rule 60-20; Senate Rule
10-50(5); and House Rule 10-20(4).
12
Mason’s Manual, Chapter 73, pp. 561-577.
129a
B. Scope of Legislative Investigative Authority
The scope of a Legislature’s investigative power
broadly extends to any subject related to enacting law.
According to Mason’s Manual:
The legislature has the power to investigate any
subject regarding which it may desire
information in connection with the proper
discharge of its function to enact, amend or
repeal statutes or to perform any other act
delegated to it by the constitution.13
The legislature has power to investigate any
subject where there is a legitimate use that the
legislature can make of the information sought,
and an ulterior purpose in the investigation or
an improper use of the information cannot be
imputed.14
An investigation into the management of state
institutions and the departments of state government
is at all times a legitimate function of a legislative
body.15
It has been noted by courts and
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