Montana Public Radio

Republican Lawmakers Escalate Challenge Over Supreme Court Communications

Apr 15, 2021

Montana Republican legislative leaders have subpoenaed the Montana Supreme Court’s seven justices and court administrator, looking for evidence of alleged bias over bills that could be challenged in court. It is the latest development in a conflict brewing between the state’s legislative and judicial branches.

The subpoenas tell the justices to produce by Monday any internal communications about pending legislation moving through the statehouse. Court Administrator Beth McLaughlin has also been ordered to appear Monday before a committee Republican lawmakers formed to investigate the judiciary.

Montana Democrats are decrying the move as an attack on the separation of powers between the three branches of state government.

"Since the very beginning of the session, the governor and the Republicans having been doing everything in their power to delegitimize and take over Montana’s independent court system," Senate Minority Leader Jill Cohenour said.

The conflict stems from a bill Republican Gov. Greg Gianforte signed into law last month that eliminates the judicial nomination commission and allows governors to directly appoint some judges when vacancies arise. The law was immediately challenged as unconstitutional, and a case is proceeding.

It was then that Montana Republican Attorney General Austin Knudsen announced judges and justices had been polled on that law when it was still moving through the legislative process.

Two judges have recused themselves from the case after making their opposition to the bill known.

GOP leaders followed up by saying they are concerned by judges commenting on pending legislation — as the courts are likely to see cases over a number of bills — and began their investigation.

Senate Majority Leader Cary Smith told the Senate this week that lawmakers should help defend the new law.

"The importance of us defending our constitutional right to take and defend laws that we pass — and to be able to pass laws — is a very serious consideration that we must make," he said.

A separate Judicial Standards Commission is in place to enforce judges’ code of ethics.