Gov. Greg Gianforte on Monday waded into a months-long dispute between the Legislature and state judiciary, arguing in a brief filed with the U.S. Supreme Court that judges’ participation in polling on proposed legislation undermines the branch’s impartiality.
The state Legislature in December appealed a state Supreme Court ruling that found lawmakers overstepped their authority when they subpoenaed judicial branch records, including from the justices of Montana's highest court, without a legislative purpose. The U.S. Supreme Court has not indicated whether it will take up the case.
The appeal focuses on whether the justices had the authority to rule on a subpoena for their own communications. It alleges that the state’s high court violated due process guarantees under the 14th Amendment.
Gianforte’s brief, filed by his office’s general counsel Anita Milanovich, mostly takes aim at the issue of judges who participated in polling that asked their opinions on proposals then being debated during the 2021 legislative session. The brief alleges that “by engaging in the practice of prejudging proposed legislation, Montana’s judiciary has failed to properly attend to its role as an independent and impartial arbiter,” and asks the U.S. Supreme Court to take up the case to clarify that judges cannot prejudge proposed legislation.
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Each justice on the state Supreme Court has said that they did not participate in the polling, although Republicans have remained skeptical and last session formed a legislative committee to investigate the issue.
Montana Supreme Court Chief Justice Mike McGrath stated in a letter to legislative leadership last year that the judicial branch only involves itself in legislative “matters that directly impact the manner in which our court system serves the people of Montana who elect each of us.”
The case now being appealed to the U.S. Supreme Court centers on a poll over Senate Bill 140, which was signed into law earlier this year. The bill abolished the Judicial Nomination Commission that had vetted candidates for judicial vacancies in favor of granting the governor direct appointment power. The state’s high court held that the law was constitutional in a June ruling.
Beth McLaughlin, the Montana Supreme Court administrator, shared the poll using her state email but had deleted some of results from state district court judges. McLaughin then filed a lawsuit against the Legislature, alleging the subpoena violated separation of powers between the two branches.
The Legislature twice asked that the justices recuse themselves, motions that were denied by the court.
In denying the recusal request, Justice Laurie McKinnon found that lawmakers’ investigation captured the entirety of Montana’s judiciary. The Supreme Court invoked what is known as the Rule of Necessity; where "all judges are disqualified, none are disqualified,” in determining the court could continue with the case.
Gianforte’s brief argues that the court’s reliance on that rule is a “result of a due process problem of its own making.”
“By engaging in discourse about proposed legislation, the Montana judiciary has created an untenable situation: Nearly every sitting judge in the state that rules on the lawfulness of legislation can now be viewed with suspicion,” the brief alleges. “Any district court decision involving new legislation may cause a litigant to wonder if the outcome was independently arrived at, or if the (Montana) Supreme Court signaled its position in an email or poll.”
Democratic lawmakers have accused the Republican majority of manufacturing a crisis between the branches in an effort to undermine the judiciary. A total of 18 laws passed by Republicans in the 2021 session have so far been the subject of 16 court challenges.
Gianforte’s office hasn’t publicly weighed in on the high-profile dispute between the Montana government’s other branches. Gianforte is a Republican. The branch he oversees was involved early on, however, when the Department of Administration responded to the initial subpoena by releasing thousands of McLaughlin’s emails before the state high court issued a rare weekend quash of the subpoena. The Department of Administration manages the state’s email system.