Legislative Leaders Appeal Subpoena Case to U.S. Supreme Court

The Montana Legislature is appealing a decision to the U.S. Supreme Court by the Montana Supreme Court referencing 14^th Amendment violations of due process in a case between two branches of state government, the legislative and the judicial branch.

KGVO spoke with State Senator Greg Hertz (R –Polson) about the issue as he toured Washington, D.C. with his family, ironically not far from the U.S. Supreme Court.

“We were looking for some emails because it came to the attention of the legislature around the first of April that the Supreme Court justices, along with (Montana Supreme Court Administrator) Beth McLaughlin, were polling other judges across the state about legislation,” said Hertz. “And so, it’s a matter of our court system and making sure it's protecting everybody's rights.”

Hertz explained the importance of the emails in question.

“We were interested in what those emails were saying because if they were opposing particular issues of legislation that we might have, we would end up in front of them, in front of their court,” he said.  “How could they make a ruling when they've already made a determination? So that's where it all started.”

Hertz said there was a fundamental conflict of interest between the Supreme Court and the state legislature.

“One of the biggest issues for this particular appeal to the U.S. Supreme Court is basically the premise that no one can be the judge in their own case,” he said. “I mean, that's a founding principle of due process in our system, so that's why we're heading to the US Supreme Court.”

Hertz said he hopes the U.S. Supreme Court might enforce the legislature’s subpoenas and force the Montana Supreme Court to hand over the emails in question.

“I'm not quite sure what the Supreme Court ruling would say other than that the Montana Supreme Court erred in their ruling and the subpoenas are valid,” he said. “Then I guess we can work through the process. We've always wanted just to work directly with the court. I mean, all we want to do is see some of those emails and if they want to redact some of the information, if they think there's private confidential information that might see with these cases, we never want to see that. We just wanted to look at the dealings between the judges and the polling information and what they were talking about regarding pending legislation.”

KGVO reached out to Randy Cox, the attorney representing Supreme Court Administrator Beth McLaughlin for a response to the legislature’s appeal to the U.S. Supreme Court.

“What the legislature is asking the court to do is to review the decisions that have been made by the Montana Supreme Court in connection with the legislative subpoenas,” said Cox. “That is a discretionary review by the United States Supreme Court. So the first step that has to be considered is whether the US Supreme Court is even going to look at the case.”

Cox said he and his client are awaiting the court’s response to the request to be heard by the state legislature.

“We have made clear all along that we respect the court system, we respect the courts, we respect the rule of law, we respect court orders and we look forward to the United States Supreme Court's resolution of that first issue which is whether it will even take up the legislature's petition,” he said.