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The Montana Legislature has appealed to the U.S. Supreme Court a Montana high court ruling that found lawmakers overstepped their authority when they subpoenaed judicial branch records without a legislative purpose.

Republicans announced the appeal Tuesday, the latest development in a months-long dispute between GOP lawmakers and the state’s Supreme Court. The appeal alleges due process violations under the 14th Amendment after the Montana Supreme Court’s July ruling on the scope of the Legislature’s subpoena power.

The case in question was filed by the Montana Supreme Court’s administrator and dealt with lawmakers’ subpoenaing of judicial branch records from the administrator and justices. The state court denied requests from the Legislature that the justices recused themselves — a point made repeatedly in the appeal.

“This case has had many unusual twists and turns and fiery statements, but one fundamental fact remains: you can’t be the judge in your own case. That simple principle underpins our free society and the rule of law,” Sen. Greg Hertz, R-Polson, said.

Hertz chairs the Legislature’s Special Select Committee on Judicial Accountability and Transparency, which formed during the session after lawmakers learned about a Montana Judges Association internal email poll on pending legislation related to judicial functions.

Republicans believed the communications were a predetermination on legislation the judges may rule on later, and issued subpoenas for emails and other records.

Democrats on the committee have accused the GOP majority of manufacturing a crisis in an effort to discredit the judicial branch that has or will rule on several laws passed this year. Democratic leadership on Tuesday remained critical of their Republican counterparts, saying the appeal only furthered efforts to undermine the independence of the judiciary.

“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,” House Minority Leader Kim Abbott of Helena and Senate Minority Leader Jill Cohenour of East Helena said in a joint statement.

The poll in question was over Senate Bill 140 that was signed into law earlier this year. The bill abolished the Judicial Nomination Commission that had vetted candidates for judicial vacancies in favor of granting the governor direct appointment power. The state’s high court held that the law was constitutional in a June ruling.

Beth McLaughlin, the Montana Supreme Court administrator, shared the poll with her state email but had deleted some of results from District Court judges; the Supreme Court justices told lawmakers they had not participated in the polling.

Republicans subpoenaed the Montana Department of Administration which runs the state’s email system, and the department provided thousands of McLaughlin’s emails before the Montana Supreme Court issued a rare weekend quash of the subpoena.

McLaughin then filed a lawsuit against the Legislature, alleging the subpoena violated separation of powers between the two branches.

The Legislature twice asked that the justices recuse themselves, motions that were denied by the court.

Justice Laurie McKinnon in denying the recusal request found that lawmakers’ investigation captured the entirety of Montana’s judiciary. The Supreme Court invoked what is known as the Rule of Necessity; where “all judges are disqualified, none are disqualified,” in determining the court could continue with the case.

Despite the recusal requests and withdrawing of the subpoenas, in a July opinion the Montana Supreme Court unanimously ruled against the Legislature, finding that lawmakers had overstepped.

Justice Beth Baker authored the opinion, writing the Legislature was attempting to act as a law enforcement agency, a function of the executive branch, in its investigation and use of “overbroad” subpoenas. The subpoenas did not serve a legislative purpose as required by law, the opinion states.

Lawmakers had defended the subpoenas’ legislative purposes, saying they would inform potential changes to public record retention laws.

In a scathing concurring opinion, Justice Dirk Sandefur wrote that the case was not about the right to know, judicial bias or lobbying, but an apparent attempted power grab by Republicans that controlled the other two branches of state government.

“Beyond the smoke-screen of the catchy but demonstrably false allegations leveled against the judiciary is an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch to conduct independent judicial review of legislative enactments for compliance with the supreme law of this state — the Montana Constitution,” Sandefur wrote.

A state District Court judge issued a similar ruling for Justice Jim Rice, who recused himself from the McLaughlin case and filed a case separately at the lower court.

Tuesday’s appeal asks the U.S. Supreme Court to intervene and find that the Montana Supreme Court justices should have disqualified themselves to ensure the Legislature received a fair hearing in the case.

“If state high courts can — by fiat — commandeer state disputes, breeze past disqualifying conflicts, and rule in their own favor, then there is no guarantee to a fair state tribunal,” the appeal states. “The Fourteenth Amendment says otherwise. This Court should grant the petition and reaffirm its basic guarantees of due process.”

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The Montana State News Bureau’s Seaborn Larson contributed to this story.

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