04/16/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0173
OP 21-0125 and OP 21-0173
BOB BROWN,DOROTHY BRADLEY, MAE
NAN ELLINGSON, VERNON FINLEY, and
MONTANA LEAGUE OF WOMEN VOTERS,
FILED
Petitioners,
v. APR 1 6 2021
Bowen
Greenwood
Clerk of Supreme
GREG GIANFORTE, Governor of the State of Court
State of Montana
Montana,
Respondent.
ORDER
BETH MCLAUGHLIN,
Petitioner,
v.
THE MONTANA STATE LEGISLATURE, AND
THE MONTANA DEPARTMENT OF
ADMINISTRATION,
Respondents.
Beth McLaughlin, Office of the Court Adrninistrator, has filed a "Petition for
Original Jurisdiction and Emergency Request to Quash/Enjoin Enforcement of Legislative
Subpoena," initiating an original proceeding assigned as Cause No. OP 21-0173. In the
petition, McLaughlin challenges the legality of a subpoena issued by the Montana State
Legislature on April 8, 2021, which dernanded production of all emails and documents sent
and received by McLaughlin over a three-month period and seeks declaratory and
injunctive relief. In response, Respondent Montana State Legislature has filed a rnotion to
dismiss the petition. Finally, McLaughlin has filed a new Emergency Motion to Quash a
Revised Subpoena issued yesterday that requires McLaughlin to appear, testify, and
provide additional information on Monday, April 19, 2021.
McLaughlin is here challenging the same legislative subpoena she has similarly
challenged by requesting to intervene within Cause No. OP 21-0125, a proceeding
challenging SB 140, legislation recently enacted by the Legislature, based on her allegation
that the subpoena arose frorn the Legislature's inquiry to her office about a poll of members
ofthe Montana Judges Association "pertaining to SB 140." Intervenor Beth McLaughlin's
Emergency Motion to Quash and Enjoin Legislative Subpoena Duces Tecum, 21-0125,
p. 4. In response to that emergency motion, this Court entered a Temporary Order on April
11, 2021. The Order acknowledged that McLaughlin had demonstrated "a substantial
potential of the infliction of great harm" if the subpoena, which we noted was "extremely
broad in scope," was "permitted to be executed as stated." Temporary Order, 21-0125,
issued April 11, 2021, p. 2. However, the Order also raised questions concerning the
procedural propriety of challenging the subpoena within 21-0125, stating that "we cannot
be certain, at this juncture, that the subpoena challenged by McLaughlin has anything to
do with the pending proceeding in OP 21-0125, or is properly filed herein." Temporary
Order, 21-0125, issued April 11, 2021, p. 2. Consequently, the Court granted McLaughlin
seven days in which to file a supplemental pleading "demonstrating the propriety of the
filing ofthe motion in this matter, as opposed to the initiation of an entirely new proceeding
before the Court," granted other parties in the action, and interested parties, the opportunity
to respond to McLaughlin's supplemental pleading, and, to preserve the status quo pending
resolution of those matters, quashed the subpoena until further order of the Court.
Temporary Order, 21-0125, issued April 11, 2021, p. 3. Further background ofthe matter
is set forth in the Temporary Order. On April 13, the Respondent in 21-0125 filed a Motion
to Strike and Vacate, requesting that McLaughlin's filings therein be stricken and that the
Temporary Order be vacated.
McLaughlin alleges in 21-0173 that, on April 8, 2021, the Legislature issued the
subpoena to Director Misty Ann Giles of the Montana Department of Administration, not
to the Judicial Branch, requiring that Giles appear before the Legislature the next day and
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produce the subject ernails and attachments. McLaughlin was provided only a courtesy
copy ofthe subpoena on the afternoon ofFriday, April 9, after which she requested a delay
while she sought legal advice. This request went unanswered. On Saturday, April 10,
McLaughlin, through counsel, proposed to Giles and Todd Everts of the Legislative
Services Division that production be delayed until the parties could address concerns, but
Giles declined. McLaughlin immediately sought judicial relief.
McLaughlin contends that the subpoena "commands production of documents that
by the breadth requested contain highly confidential, privileged, and sensitive
inforrnation," and that "over 2,000 documents have already been produced, creating new
time-sensitivities and concerns." She contends the documents were produced "without
McLaughlin or any other court official being afforded the opportunity to review the
production and protect the privacy rights and privileges implicated." She alleges she has
now had a brief opportunity to partially review the docurnents produced by the Departrnent
of Administration "and can confirm they contain, as suspected, privileged and confidential
information." She alleges the legal and constitutional issues raised are of statewide
importance and that ernergency factors exist that render litigation in the trial courts and
subsequent appeal inadequate, citing M.R. App.P. 14(4). As relief, she seeks a declaration
that the subpoena is illegal and invalid, the temporary quashing and permanent enjoining
of the subpoena, the permanent enjoining of the Legislature "from disserninating,
publishing, re-producing, or disclosing in any rnanner, internally or otherwise, any
documents produced" pursuant to the subpoena, and return of those documents.
Central to the petition in this matter are threshold questions of law subject to the
exclusive adjudicatory authority ofthis Court under Article III, Section 1, and Article VII,
Sections 1-2(1), of the Montana Constitution regarding the scope and application of the
legislative subpoena power. See Larson v. State By & Through Stapleton, 2019 MT 28,
¶ 42, 394 Mont. 167, 434 P.3d 241 (noting exclusive constitutional duty and authority of
this Court to "adjudicate the nature, meaning, and extent of applicable constitutional,
statutory, and common law and to render appropriate judgments thereon"—citing Mont.
Const. arts. III, § 1, and VII, § 1, inter alia); Best v. City ofBillings Police Dep't, 2000 MT
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97, ¶ 16, 299 Mont. 247, 999 P.2d 334 (arnong the three coordinate branches of a
constitutional government "it is the province and duty of the judiciary 'to say what the law
is'"—citing Marbury v. Madison,5 U.S.(1 Cranch) 137, 177,2 L.Ed. 60(1803); Marbury,
5 U.S. at 177, 2 L.Ed. at 26 (the constitution is the "fundamental and paramount law" and
the fundamental "theory of every such [constitutional] government" is "that an act of the
legislature, repugnant to the constitution, is void. . . . It is emphatically the province and
duty of the judicial department to say what the law is" and "of necessity [to] expound and
interpret that rule" to resolve any conflict of law). It is clear the Legislature, to exercise its
separate and distinct powers of governance effectively, rnust have the power to acquire
inforrnation regarding the subject matter of its legislation. However, neither the subpoena
power of the Legislature, nor that ofthe judiciary, is subject to unquestioned enforcement.
This Court has not previously considered the extent of any limitations on the Legislature's
subpoena power. The scope of the Legislature's inherent legal authority to compel
information, and how it applies under particular circumstances, are quintessentially
functions for this Court to determine within our exclusive constitutional duty and authority
under Article III, Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution.
We have not heretofore considered whether that authority is limited when competing rights
or privileges exist and are expressed.
In the legislative subpoenas previously issued to the Montana Departrnent of
Administration, this Court, and the Court Administrator, the Legislature seeks to obtain a
broad swath of internal judicial branch documents and communications, some of which
appear to be confidential and privileged as a matter of law from coinpelled disclosure to
the Legislature, but some of which may very well be reachable by legislative subpoena.
All those requests, moreover, are directly or indirectly related, and certainly have directly
arisen from, the matters now squarely at issue before this Court in the above-captioned
Brown and McLaughlin proceedings, in both of which the Legislature is now a party under
the personal jurisdiction of this Court. As a result, the legality of the previously issued
legislative subpoenas, and any similar subpoenas regarding the same subject matter, is
currently at issue before this Court in the above-captioned McLaughlin proceeding
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(21-0173) for adjudication, upon participation of the parties thereto under due process of
law, under the exclusive constitutional power and authority of this Court under Article III,
Section 1, and Article VII, Sections 1-2(1), of the Montana Constitution. Within that legal
frarnework, it is the exclusive constitutional duty of this Court to consider the competing
constitutional and other legal interests at issue and adjudicate them accordingly to resolve
the dispute matters at issue as a rnatter oflaw.
Consequently, to address these issues raised herein in a rnanner that provides due
process and prevents the infliction of harm as the process moves forward in an orderly
manner, we hereby order as follows:
1. Respondents Montana State Legislature and Montana Department of
Adrninistration are granted fourteen (14)days, until Friday, April 30, 2021,in which to file
a surnrnary response to the Petition, to present any arguments not already included within
Respondent Montana State Legislature's motion to dismiss.
2. Petitioner Beth McLaughlin is granted fourteen(14) days, until Friday, April 30,
2021, in which to file a response to the Motion to Dismiss.
3. The substance of our prior Temporary Order of enjoinder in 21-0125 is hereby
continued unabated within 21-0173. The subpoena issued by the Legislature on April 8,
2021, remains enjoined pending further order of the Court. Additionally, enforcement of
the Revised Subpoena issued April 15, 2021, is temporarily enjoined pending further
proceedings in this matter and further Order of this Court.
4. Given the release of documents related to electronic judicial branch
cornmunications by the Departrnent of the Adrninistration, as described herein, without
legal process or the opportunity for consultation, the Department of Administration is
temporarily enjoined frorn any further release of any judicial cornmunications in response
to any request or subpoena, legislative or otherwise, until further order of this Court.
5. Similarly, until the issues raised in this proceeding can be presented and
adjudicated in the course of due process, enforcernent of any subpoenas issued by the
Montana State Legislature for electronic judicial cornmunications, including those served
on this Court April 14, 2021, are temporarily stayed, until this Court can establish the
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scope, limitations, and parameters to be applied by courts when the Legislature exercises
its authority to obtain inforrnation and cornpeting interests are presented. Justice Jim Rice
has requested that his subpoena not be stayed, so he rnay seek review in the district court,
and it is so ordered.
6. McLaughlin's filings within 21-0125 are dismissed.
7. The Motion to Strike and Vacate filed by the Respondent in 21-0125 is denied
as moot.
8. McLaughlin's request to file an overlength petition in 21-0173 is granted.
IT IS SO ORDERED.
The Clerk is directed to provide copies of this Order to all counsel of record in this
matter.
DATED this Ik.,--day of April, 2021.
hief Justice (21-0173)
The Chief Justice has signed this order only for purposes of participating in 21-0173.
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Justice Beth Baker and Justice Jirn Rice joins in Paragraphs 1-4 and Paragraphs 6-8 of the
foregoing Order.
,47ece
ve Chief Justice (21-0125)
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