07/14/2021
SYNOPSIS OF THE CASE Case Number: OP 21-0173
2021 MT 178, OP 21-0173: BETH McLAUGHLIN, Petitioner, v. THE MONTANA
STATE LEGISLATURE and THE MONTANA DEPARTMENT OF
ADMINISTRATION, Respondents.1
The Montana Supreme Court held unanimously today that the State Legislature
exceeded the scope of its legislative functions when it issued subpoenas for the electronic
records of Judicial Branch Court Administrator Beth McLaughlin. The Court ruled that
the subpoenas sought information not related to a valid legislative purpose, information
that is confidential by law, and information in which third parties have a constitutionally
protected individual privacy interest. The subpoenas arose from the Legislature’s stated
concern about the practice of polling judges for what it called “prejudg[ing] legislation and
issues” that may come before the courts.
In today’s Opinion, the Court first rejected the Legislature’s argument that the
Supreme Court had no authority to rule on the case because it presented a direct conflict
between the two branches of government that could be handled only through negotiation
between the branches. Citing a court’s “unflagging responsibility to decide cases and
controversies,” the Supreme Court noted that disputes over the scope of legislative
subpoena power had been litigated in numerous cases and “are squarely within the
authority of the courts.” It referred to the U.S. Supreme Court’s recent decision in
Trump v. Mazars, in which the High Court ruled on Congressional subpoenas to the
President and set forth a balance of factors that courts must consider in examining
subpoenas to minimize “interbranch confrontation.”
The Montana Supreme Court rejected the Legislature’s argument that it needed
McLaughlin’s e-mails to investigate the potential for bias among judges who could be
considering court challenges to legislation. First, under the Montana Constitution, the
Judicial Standards Commission, not the Legislature, investigates allegations of judicial
misconduct. Any concern about a judge making statements about cases that are or could
come before the courts would be within the exclusive authority of the Judicial Standards
Commission and the Supreme Court. Second, the U.S. Supreme Court in Republican Party
v. White (2002) struck down as a First Amendment violation a Minnesota law prohibiting
candidates for judicial election from announcing their views on disputed legal and political
issues. Impartiality, the Supreme Court explained in White, guarantees a party that the
judge who hears the case will apply the law to that party in the same way the judge applies
it to any other party. A judge’s views regarding the relevant legal issues in a case is not a
necessary component of equal justice. The Supreme Court explained in White that
impartiality also means open-mindedness: “This quality in a judge demands, not that he
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This synopsis has been prepared for the convenience of the reader. It constitutes no part of the
Opinion of the Court and may not be cited as precedent.
have no preconceptions on legal issues, but that he be willing to consider views that oppose
his preconceptions, and remain open to persuasion, when issues arise in a pending case.”
The Montana Supreme Court emphasized the rules of judicial conduct that encourage
judges to share their “special expertise” with the Legislature on matters concerning the law,
the legal system, and court administration.
The Court noted longstanding constitutional principles that a legislative body may
investigate only into those areas in which it may potentially legislate; a legislature cannot
inquire into matters within the exclusive province of one of the other branches of
government. Because McLaughlin had not retained the e-mails from individual judges
registering their votes, the Legislature sought to investigate whether members of the
Judiciary or employees of the Judicial Branch had deleted public records and information
in violation of state law and policy. But the Legislature is not a law enforcement agency,
and addressing alleged violations of existing law is an enforcement matter that is within
the power of the executive branch. The Judicial Branch’s policies—which are available to
the public—did not require members or employees of the branch to retain every e-mail.
The Court concluded that the Legislature failed to show that compelling production of
thousands of unredacted Judicial Branch messages, rather than undertaking other forms of
inquiry, would advance its consideration of legislation on the matter of a judicial records
retention policy. The Court thus held the subpoenas invalid to the extent they sought to
determine whether Judicial Branch employees or officials violated state law or policy.
The Court also held that the Legislature had not shown a valid legislative purpose
in seeking to investigate whether the Court Administrator and members of the Judicial
Branch had improperly used government time and resources to lobby the Legislature. The
subpoenas were issued following a court challenge to the constitutionality of
Senate Bill 140, a bill abolishing the Judicial Nomination Commission that had been in
place to select nominees for filling judicial vacancies in Montana. McLaughlin had
facilitated a poll of district judges to determine whether the Montana Judges Association
should take a position on the bill. The Association voted to oppose the measure and went
on record to make the Legislature aware of its position. The Court held that these actions
did not give rise to a legislative purpose for the subpoenas. First, the Legislature again was
seeking to perform a law enforcement function outside the scope of legislative authority.
Second, state law excludes actions of public officials acting in their governmental
capacities from the definition of “lobbying.” Third, under the statutory definition of
“lobbyist,” the Court Administrator was not lobbying when she facilitated the polling of
judges because she did not have personal contact with any legislators on the subject, and
the Montana Judges Association—through its registered lobbyist—publicly reported its
activities on the bill.
The Supreme Court referenced both the Judicial Branch e-mail policy and the
Code of Judicial Conduct, which expressly authorizes judges to use court “premises, staff,
stationery, equipment, or other resources” for “incidental” activities that concern the
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“law, the legal system, or the administration of justice.” Because “[j]udges are uniquely
qualified to engage in the extrajudicial activities that concern” such matters, the Code of
Judicial Conduct expressly allows them to “share that expertise with governmental bodies
and executive or legislative branch officials.”
Finally, the Court held, the legislative subpoenas were far too broad. They were not
limited to “public records” or “public information” but encompassed information regarding
confidential personnel-related matters; confidential Youth Court matters; confidential
matters before the Judicial Standards Commission; potential on-going security risks to
individual judges; ongoing cases and judicial work product; and information in which
third parties have protected privacy interests. Rather than following avenues established
by statute for seeking information from the Court Administrator or giving her the notice
and opportunity to respond that due process requires for all other subpoenas, the
Legislature demanded production within a 24-hour period from a separate agency. In turn,
the Department of Administration Director failed to consider the significant potential
confidentiality and privacy interests when she began her blanket release of the e-mails
without giving McLaughlin notice or an opportunity to review the materials and raise any
such concerns or seek protection of confidential information in a court of law. These basic
safeguards were ignored.
In that regard, the Court pointed out that ensuring due process of the law is a judicial
function, not a legislative function. If the Legislature issues a subpoena to a government
officer that may reach information that is confidential by law or involves individual privacy
interests of third parties, the government officer must have a chance to review the materials
first, and any issues about disclosure must be presented to a court.
This is not to say, the Court agreed, that the Court Administrator is insulated from
revealing information to the legislative branch of state government. “Far from it.” The
Legislature has provided for alternative means by which to obtain information and to
determine accountability of administrative matters in the Judicial Branch. Had the
Legislature sought information through these means, it might have avoided interbranch
confrontation instead of subpoenaing a broad swath of McLaughlin’s records without any
notice to the Judicial Branch.
The Court ordered the Legislature to return all materials provided under the
previously issued subpoenas; prohibited the Legislature, its legal counsel, and the
Department of Administration from disclosing or disseminating any additional information
provided in response to the subpoenas; and held that the subpoenas could not be enforced
or reissued.
Two members of the Court wrote additional concurring opinions. Specially
concurring with the decision, Justice McKinnon would also have quashed the subpoenas
to McLaughlin, but upon the grounds that the Legislature’s investigation into alleged
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misconduct of the Judicial Branch violated the constitutional doctrine of separation of
powers. Without question, the Legislature’s goal in issuing the subpoenas was to expose
purported violations by judges of ethical codes, state law, and state policy. These are
plainly allegations of misconduct which do not have a valid legislative purpose. Montana’s
Constitution specifically provides the method for addressing judicial misconduct is through
the Judicial Standards Commission. The constitutional doctrine of separation of powers
does not tolerate attempts to control, interfere, or intimidate one branch of government by
another.
In a separate concurring opinion, Justice Sandefur noted his complete concurrence
in the comprehensive analysis and holdings in the majority opinion but wrote separately to
further concur in Justice McKinnon’s special concurrence, as supplemental reasoning
wholly consistent with the Court’s main analysis and holdings. Justice Sandefur further
stressed the critical importance of adherence and respect for the constitutional separation
of powers and the rule of law in the face of the reckless “crisis” unscrupulously ginned-up
for the purely partisan purpose of undermining the constitutional function of Montana’s
duly-elected non-partisan Judicial Branch—to conduct independent review of legislative
enactments for compliance with the supreme law of this state, the Montana Constitution.
District Judge Donald Harris of Billings joined the Court on the case in place of
Justice Jim Rice, who recused himself after filing his own lawsuit to challenge the
Legislature’s subpoena for his electronic records.
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