- Associated Press
Monday, April 12, 2021

HELENA, Mont. (AP) - The Montana Supreme Court has temporarily quashed a legislative subpoena for the state court administrator’s emails, which are believed to contain responses to a poll of District Court judges on legislation to give the governor more power in filling judicial vacancies between elections.

Gov. Greg Gianforte, a Republican, signed a bill into law in March to eliminate the Judicial Nomination Commission and allow the governor to directly fill judicial vacancies. A legal challenge was filed with the Montana Supreme Court the next day.


Chief Justice Mike McGrath recused himself from the case because he had met with Gianforte and Lt. Gov. Kristen Juras and urged them not to support the bill. District Court Judge Kurt Kueger was appointed to fill his spot.

However, Attorney General Austin Knudsen learned District Court judges had been polled on the legislation and that Krueger had expressed opposition to the bill. The attorney general’s office asked that Krueger be removed from the case. Krueger recused himself before the Supreme Court ruled on the issue.

The Supreme Court also said the poll showed judges opposed the bill 34-3 and that the case would be heard by a six-member panel of the Montana Supreme Court, none of whom have expressed an opinion on the legislation.

Senate staff emailed Supreme Court Administrator Beth McLaughlin on April 7 asking for a breakdown of the vote. McLaughlin said she did not retain those emails or records, the Montana State News Bureau reported.

Republican Sen. Keith Regier, chair of the Senate Judiciary Committee, then subpoenaed state Department of Administration Acting Director Misty Ann Giles for any of McLaughlin’s deleted emails. The department includes the state’s Information Technology Services Division.

Some of the emails were turned over on Friday, court records said. Giles, who was appointed by Gianforte and still faces confirmation in the Senate, had agreed to provide other emails, the Montana State News Bureau reported.

An attorney for McLaughlin filed an emergency motion with the Supreme Court on Sunday saying the broad request for McLaughlin’s emails dating back to Jan. 4 would likely include medical, disciplinary, youth court and other confidential information that should not be made public.

McLaughlin also argued the subpoena exceeds the scope of legislative authority, violating the separation of powers, and that it violates judicial privileges and is overbroad.

The Supreme Court agreed Sunday that the request was too broad. The justices also said that because the Senate committee’s subpoena does not reference the new law or its legal challenge, it would not “address the serious issues raised regarding the Legislature’s authority to issue such a subpoena” without further hearings.

On Monday, Senate Minority Leader Jill Cohenour asked Gianforte to turn over emails, text messages and cellphone logs between Giles and any other state employees, including contact with the governor regarding responding to the subpoena. “Montanans deserve to know what happened this weekend and why sensitive information was produced in response to a questionable email over the objection of the judicial branch,” she said.

Cohenour asked for the information to be provided by 3 p.m. Tuesday.

The governor’s office did not immediately respond to an email seeking comment on Cohenour’s request.

In the Supreme Court‘s order, McLaughlin was given until April 19 to file a supplemental pleading to explain why her motion to quash the subpoena was filed as part of the case challenging the new law as opposed to being filed as a separate proceeding.

The Legislature was given until May 3 to respond to McLaughlin’s request to quash the subpoena and the Department of Administration could also respond by May 3, if it wished.

Those challenging the law that eliminates the judicial nomination commission along with the state also have until May 3 to respond to McLaughlin’s request to intervene in the case.

Lawmakers are also moving forward with a backup bill in case the law overturning the Judicial Nomination Commission is declared unconstitutional.

It would allow the governor to appoint eight lay people to the Judicial Nomination Commission, giving the governor appointment power over 12 of what would then be a 15-member commission. The commission currently includes four members appointed by the governor, two appointed by the Montana Supreme Court and one elected by the District Court judges.

The commission interviews people who apply for judgeships and forwards three to five names to the governor, who must chose from among those nominees.


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