D. Bradley v. G. Gianforte

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                                                                                           04/11/2021


            IN THE SUPREME COURT OF THE STATE OF MONTANA                               Case Number: OP 21-0125


                                       OP 21-0125


 DOROTHY BRADLEY,BOB BROWN,
 MAE NAN ELLINGSON, VERNON FINLEY,
 and MONTANA LEAGUE OF WOMEN
 VOTERS,

             Petitioners,
                                                              TEMPORARY
                                                                ORDER
       v.

 GREG GIANFORTE, Governor of the State of
 Montana,

             Respondent.



       Beth McLaughlin, Office of the Court Administrator, yesterday e-filed and served
an emergency motion within this matter "to quash and enjoin legislative subpoena duces
tecurn." We interpret the motion as both a request to intervene in this matter and to quash
or enjoin a subpoena issued by the Legislature.
       According to the motion and the subpoena attached as an exhibit thereto, on
Thursday, April 8,2021,the Montana State Legislature issued a subpoena directed to Misty
Ann Giles, Director of the Department of Administration, an executive branch agency,
requiring her to appear and produce: 1)"All emails and attachrnents sent and received by
Court Administrator Beth McLaughlin between January 4, 2021 and April 8, 2021
delivered as hard copies and .pst digital files"; and 2)"Any and all recoverable deleted
emails sent or received by Court Adrninistrator Beth McLaughlin between January 4,2021
and April 8, 2021 delivered as hard copies and .pst digital files." The subpoena further
required Giles to appear at the Capitol Building "on the 9'day of April, 2021, at 3:00 PM,
to produce" the requested documents. According to the motion, "Director Giles reached
an agreement whereby the docurnents would be compiled this weekend and produced,
presumably, on Monday or perhaps sooner over the weekend. McLaughlin is inforrned
and believes that Director Giles intends to comply with the Legislature's Subpoena."
       McLaughlin argues that the subpoena exceeds the scope of legislative authority,
violating the separation of powers, violates judicial privilege, and that, in any event, is
overbroad as it, inter alia, "encompasses confidential personnel inforrnation."
       McLaughlin's motion raises serious procedural questions. Neither the Legislature
nor the Department of Adrninistration are parties in this litigation. Although the subpoena
is juxtaposed temporally with the litigation pending in this matter, including Respondent
Greg Gianforte's request for production of emails related to a poll conducted by the
Montana Judges Association regarding SB 140, the subject of this litigation, and a letter
dated April 1, 2020, from the presiding officers of the Montana House of Representative
and Montana Senate to McLaughlin referencing production of ernails and information
related to communications "regarding SB 140," which letter was also sent to the Clerk of
Court to forward "with the Justices of the Montana Supreme Court," the subpoena itself
does not reference this litigation, or SB 140. Nor does it reference any other litigation.
Thus, while the letter to the Clerk of Court referenced an intention by the Legislature to
"exercise[e] its power. . . .to request all communications between the court adininistrator
and rnernbers of the judicial branch," we cannot be certain, at this juncture, that the
subpoena challenged by McLaughlin has anything to do with the pending proceeding in
OP 21-0125, or is properly filed herein. Even assuming the inotion is properly filed within
this proceeding, we cannot, without further proceedings, address the serious issues raised
regarding the Legislature's authority to issue such a subpoena.
       Nonetheless, the actions commanded by the legislative subpoena are, facially,
extreinely broad in scope, with a substantial potential of the infliction of great harm if
permitted to be executed as stated. The production of all mails sent and received by
McLaughlin between January 4, 2021 and April 8, 2021, without substantive lirnitation of
any kind, incorporates all matters addressed by the Court Administrator during that period.
As the motion notes, McLaughlin "receives a wide variety of emails and attachments that
implicate the rights and privileges of other parties," including without liinitation, "medical

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information both for ernployees and elected officials," "disciplinary issues," "ongoing
litigation," "Youth Court Case information," and "Mequests from members of the public
for disability accommodations including documentation of the disability."                All
cornmunications regarding such matters would be caught within the dragnet of the
subpoena.
        Consequently, to address these various issues, and to prevent the infliction of harrn
in the rneantime, we hereby order as follows:
        1. McLaughlin is granted seven (7) days, until Monday, April 19, 2021, to file a
supplemental pleading demonstrating the propriety ofthe filing ofthe motion in this matter,
as opposed to the initiation of an entirely new proceeding before the Court.
       2. The Legislature is granted fourteen (14) days thereafter, until Monday, May 3,
2021, in which to respond to McLaughlin's request to quash the subpoena by intervening
in this matter. Third Party Departrnent of Administration may, at its option, respond by
that time.
       3. The Petitioners and Respondent, and/or by the Attorney General, are likewise
granted until Monday, May 3, 2021, to respond to McLaughlin's request to intervene in
this rnatter.
       4. The subpoena issued by the Legislature on April 8, 2021, is hereby quashed
pending further order of the Court.
IT IS SO ORDERED.
       The Clerk is directed to provide copies of this Order to counsel for Beth
McLaughlin, the Legislature, the Department of Administration, and all counsel of record
in this matter.
                   Lr1-
       DATED this ( day of April, 2021.




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    ustices




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