HELENA — The attorney general’s office late Monday told the Montana Supreme Court that Republican legislators will not comply with the court’s order to halt their attempts to acquire and publicize internal emails from the state judiciary.
In a letter to Supreme Court Justice Jim Rice, Lieutenant Attorney General Kristin Hansen said the Legislature “does not recognize this court’s order” and will not allow the court to interfere with legislative investigation of “troubling conduct of the judiciary.”
Monday’s letter is the latest development in an escalating battle between GOP leadership at the Legislature and the state’s judiciary, prompted in part by judges’ opposition to a new law that gives Republican Gov. Greg Gianforte broader power to appoint state judges.
The dispute has led to legislative Republicans enlisting the Gianforte administration to provide them a trove of emails from the Supreme Court administrator’s account, allegedly showing bias against various Republican bills.
The administrator hired her own lawyer, whose filings led to the Supreme Court issuing a rare Sunday order, quashing a legislative subpoena that asked the Gianforte administration to retrieve the emails from the state computer system.
Hansen’s letter on Monday said lawmakers would not comply with the Supreme Court order.
The office of Republican Attorney General Austin Knudsen is representing legislative Republicans in its dispute with the judiciary.
Also Monday, Democratic lawmakers denounced the GOP efforts as an “unprecedented attack on the judiciary” and formally asked the Gianforte administration to produce its communications on the legislative email request.
Rep. Laurie Bishop, D-Livingston, told MTN News that Republican lawmakers are clearly trying to undercut the reputation of the judiciary, which no doubt will be ruling on many unconstitutional bills passed by the Republican majority.
“We’ve seen policy after policy move through the Legislature, not just this session, but in the past, that are on their face unconstitutional,” she said. “So when the judiciary comes in and does what they are tasked with doing under our separation of powers, to weigh in on that, it’s not pleasing to Republicans.”
The new law giving Gianforte more power to appoint judges has been challenged as unconstitutional and is before the Montana Supreme Court.
Supreme Court Chief Justice Mike McGrath recused himself from the case, saying he had met with Gianforte and Lt. Gov. Kristen Juras and tried to dissuade them from proposing and supporting the new law.
McGrath appointed state District Judge Kurt Krueger of Butte to take his place on the case.
But shortly thereafter, it was revealed that Krueger had said in an email earlier that he “adamantly opposed” the bill that created the law. He then recused himself from the case and the high court said it would decide the case with the remaining six justices.
Republican leadership at the Legislature then asked for further emails from within the judiciary.
After Supreme Court Administrator Beth McLaughlin said she had deleted some of those emails, Republicans issued the legislative subpoena last Thursday that directed Gianforte’s Department of Administration Director Misty Ann Giles to retrieve all emails from McLaughlin’s state account from January through early April.
Giles and her agency began to comply and produced scores of emails, some of which have been released to the media.
Most of those emails show justices, judges and judicial staff and lobbyists commenting on various bills that would affect the judiciary, including strategies to oppose and defeat some of the bills.
Bishop said she sees no problem with members of the judiciary weighing in on bills that affect how they do their job.
“Of course they’re going to have opinions about that,” she said. “Members of the public who are engaged in that discussion should rightfully have an opinion as well.”
Kyle Schmauch, a spokesman for the Senate Republican leadership, said Monday the Legislature is properly investigating “the practices and conduct of the judiciary,” including whether it improperly disposed of state records or improperly used state resources in lobbying efforts.
“The Supreme Court is interfering in that investigation, which suggests they are hiding something,” he said.
Bishop said it appears that Republicans, who control the governor’s office and the Legislature, now apparently want to intimidate and control the judiciary as well.
“They are now going after the judicial branch and trying to get them to do their bidding,” she said. “I think the public should be concerned when someone is trying to have that amount of control and going after the very body whose job it is to try to be a check and balance.”
