Montana Upholds Judicial Independence
From the synopsis of a decision issued yesterday by the Montana Supreme Court
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 [editor’s note: or she] 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.
…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.
From Justice McKinnon’s special concurrence
By addressing the particulars and substance of the subpoenas (public records and records retention, Opinion, ¶¶ 22-31; use of state resources to lobby, Opinion, ¶¶ 32-37; statements by judges, Opinion, ¶¶ 38-45; overbreadth, Opinion, ¶ 47, process attendant to issuing subpoenas, Opinion, ¶ 48) the Court, though correct on the law, obscures the mark. In doing so, the Court implicitly lends credibility and legitimacy to a legislative act which was blatantly designed to interfere with, if not malign, a coequal and independent branch of government. The constitutional doctrine of separation of powers does not tolerate the control, interference, or intimidation of one branch of government by another. Upon this basis I would quash the subpoenas.
Noting that Montana is not 17th century England [editor’s note: not yet]
In conclusion, it seems fitting, given the circumstances of this litigation and its blemish upon Montana’s history, that a final reference to Marbury v. Madison be had. “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury, 5 U.S. (1 Cranch) at 176. The constitutional doctrine of separation of powers is one such limit. It is upon this basis that I would resolve these proceedings.
Justice Sandifer
Contrary to the irresponsible rhetoric that has and will likely continue to spew forth from those intoxicated with their long-sought unitary control over the political branches of government, this case is not about judicial disregard of the public’s right to know, noncompliance with applicable public records retention laws, judicial bias, or judicial “lobbying.” The Court’s opinion clearly lays bare the absurdity of those patently false and intentionally inflammatory political talking-points, revealing a far more sinister motive. Beyond the smoke-screen of the catchy but demonstrably false allegations leveled against the judiciary is an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch to conduct independent judicial review of legislative enactments for compliance with the supreme law of this state—the Montana Constitution.
(Mike Frisch)