Sen. Greg Hertz, R-Polson

Sen. Greg Hertz, R-Polson, speaks on the Senate floor in the state Capitol.

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A GOP-led legislative committee investigating the judicial branch has withdrawn its embattled subpoenas for Montana Supreme Court records, a spokesperson said late Tuesday.

Sen. Greg Hertz, a Polson Republican chairing the investigative committee, said in an emailed statement the decision to pull back the subpoenas came after consultation with the state Department of Justice. That Republican-led agency has represented the committee during the escalating confrontation with the judiciary over claims of improper use of state resources, lobbying efforts by judges and failure to retain public records.

The subpoenas had been challenged in court as an overreach of the Legislature’s constitutional authority by Supreme Court Administrator Beth McLaughlin, whose own emails had been subpoenaed by the committee.

Supreme Court Justice Jim Rice, a former Republican lawmaker, also challenged the subpoena for his own records in state District Court. Rice testified in Lewis and Clark County District Court in May that he believed the mounting investigation led by Republican lawmakers was a “campaign to discredit and undermine the integrity of the court.”

A District Court judge subsequently blocked the subpoena for Rice’s records until the case concluded, noting he would have to be “blind” not to see that the subpoena was not a legislative effort but a clash over records of political interests.

Montana Supreme Court Justice Jim Rice

Montana Supreme Court Justice Jim Rice, right, takes the witness stand as Judge Mike McMahon watches in the Lewis and Clark County Courthouse in May.

Lawmakers hatched the investigation and the Select Committee on Judicial Transparency and Accountability after court filings in a lawsuit over new laws passed by the Legislature showed McLaughlin had deleted an internal email poll of judges offering approve-or-oppose opinions on pending legislation that would affect judicial functions. The Supreme Court justices told lawmakers in a committee hearing in April that they had not participated in the polling as state District Court judges had, but lawmakers pursued their records in light of the deleted email poll results.

The committee had produced a preliminary report by the end of that month outlining its concerns with the judicial branch following a month of investigation. That included a subpoena that successfully cached more than 5,000 of McLaughlin’s emails that were turned over by the Department of Administration, a department of the executive branch.

Hertz said in Tuesday’s announcement the committee’s position “all along” has been that the dispute should have been handled outside of the courts.

Sen. Greg Hertz, R-Polson

Sen. Greg Hertz, R-Polson

“To be clear, we expect the judicial branch to release public records, the same as they have ruled the legislative and executive branches must do in numerous court rulings over the years,” Hertz said.

Hertz also said withdrawing the subpoenas meant the litigation over the Legislature’s subpoena power likewise ended Tuesday.

Earlier on Tuesday, the Montana Supreme Court met for a conference meeting on a recent motion by lawmakers asking for the justices to recuse themselves because they, too, were under subpoena. It was the second such motion; the first request for recusal was heartily denied, with Justice Laurie McKinnon writing in the unanimous decision that lawmakers had attempted to “manufacture a conflict” in an effort to evade the judicial branch getting the final say on the Legislature’s subpoena power.

Montana Supreme Court justices

Montana Supreme Court Justice Laurie McKinnon asks a question during arguments in the Jon Krakauer records request hearing at Montana State University in Bozeman in April 2016.

Randy Cox, McLaughlin’s attorney, said late Tuesday he would likely file a motion to see the challenge out in the coming days, citing a need to have the matter settled by the courts.

“We are going to oppose the dismissal because we think this is an important issue,” Cox said.

Rep. Kim Abbott of Helena, one of two Democrats on the committee who have repeatedly criticized the subpoenas as having no legislative purpose, said she hoped the move signaled a downturn in the committee’s investigation.

Kim Abbott

Kim Abbott

“This Select Committee was always an overreach that threatened the separation of powers and checks and balances that Montanans expect and that our system of government depends on,” Abbott, the House minority leader, said in an email Tuesday. “We hope this puts an end to expending resources on partisan attacks against a co-equal and independent branch of government.”

Hertz, however, gave no indication that the investigation was winding down.

“We’re still seeking documents and information that will provide more clarity on the issues identified in our committee’s initial report and inform legislative fixes to problems within our judicial system,” Hertz said. “I look forward to working with committee members and the judicial branch as we continue this legislative investigation.”

The committee’s website does not list the next date the investigative committee is expected to meet.

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