HELENA — Republican legislators and Attorney General Austin Knudsen are asking the U.S. Supreme Court to intervene in their running dispute with the Montana Supreme Court, saying the state justices should have excused themselves from ruling on legislative attempts to acquire internal court documents.
The Montana court ruled unanimously in August that Republican lawmakers’ subpoenas to obtain the documents were illegal and exceeded their authority.
Knudsen on Monday asked the U.S. Supreme Court to rule that the Montana justices violated the constitutional guarantees of due process of law in the case, because they did not recuse themselves from deciding a case involving their own interests.
“This court should grant the petition and reaffirm that due process forbids even the justices of the Montana Supreme Court to be the judges in their own case,” he wrote.
The request from Knudsen on behalf of Montana Republican legislative leaders is one of thousands the U.S. Supreme Court receives each year to hear appeals of a case. The court accepts less than 3 percent of those requests for a “writ of certiorari.”
Montana Supreme Court Administrator Beth McLaughlin, the other official party in the case, said she and her attorney will be responding to Knudsen’s request, arguing that the high court should not take the case.
“As we have made clear all along, we respect the court system, the courts and the rule of law,” she said in a statement Tuesday. “We respect court orders and look forward to the U.S. Supreme Court’s resolution of the first issue – whether it will even take up the Legislature’s petition.”
The case stems from a lengthy political battle waged by leading Republican officeholders this year against the state Supreme Court and judiciary.
Beginning in early April, GOP lawmakers, with the help of Knudsen and Republican Gov. Greg Gianforte’s administration, sought to obtain emails and documents from the high court, alleging the documents may reveal the judiciary is biased against GOP-passed laws that may come before the courts.
McLaughlin filed a petition to block those subpoenas, and the full court ruled in August that the requests exceeded legislative authority.
One of the justices, Dirk Sandefur, said in his concurring opinion that Republican lawmakers had “recklessly ginned up a `crisis’” that he called a “calculated and coordinated partisan campaign” to undermine the nonpartisan judiciary’s role in reviewing the constitutionality of enacted laws.
The Montana court also rejected a request from Knudsen that the entire court recuse itself from deciding the case.
That rejection is the main grounds for this week’s appeal to the U.S. Supreme Court.
Knudsen told the U.S. Supreme Court that the Legislature has a “fundamental right to due process,” which means a ruling from judges “free from disqualifying interests.”
“The Montana Supreme Court trounced nearly every principle of due process this Court has ever enunciated,” Knudsen wrote. “But due process rules ensure that no party is left to the gentle mercies of a judge he’s fighting against—particularly when the dispute arises from the judge’s alleged misconduct.”
In a statement Tuesday, Sen. Greg Hertz, R-Polson, who is chairing a select committee investigating the judiciary, said the case turns on the “simple principle” that no one should be the “judge in your own case.”
“It’s essential to all Montanans that we have independent, impartial courts that conduct fair hearings, follow due process and abide by strong ethical and procedural standards,” he said.
The Supreme Court, in its August ruling, said any questions of judicial bias or other misconduct by judges or judicial branch employees can be taken to the state Judicial Standards Commissions or other bodies. Such questions have no connection to any legislative purpose, and therefore the Legislature can’t use its subpoena power to obtain documents to investigate the alleged bias, the court said.
The state's legislative Democratic leaders said Tuesday that Republicans are trying to undermine an independent judiciary, and that Democrats are focused on helping improve the economy and lower the cost of housing and child-care for Montanans.
“Montanans expect their elected representatives to respect constitutional separation of powers, not attack the checks and balances that ensure our government is accountable to Montanans,” they said in a statement.