SYNOPSIS OF THE CASE

2021 MT 178, OP 21-0173: BETH McLAUGHLIN, Petitioner, v. THE MONTANA 

STATE LEGISLATURE and THE MONTANA DEPARTMENT OF 

ADMINISTRATION, Respondents.

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The Montana Supreme Court held unanimously today that the State Legislature 

exceeded the scope of its legislative functions when it issued subpoenas for the electronic 

records of Judicial Branch Court Administrator Beth McLaughlin. The Court ruled that

the subpoenas sought information not related to a valid legislative purpose, information 

that is confidential by law, and information in which third parties have a constitutionally 

protected individual privacy interest. The subpoenas arose from the Legislature’s stated 

concern about the practice of polling judges for what it called “prejudg[ing] legislation and 

issues” that may come before the courts. 

In today’s Opinion, the Court first rejected the Legislature’s argument that the 

Supreme Court had no authority to rule on the case because it presented a direct conflict 

between the two branches of government that could be handled only through negotiation 

between the branches. Citing a court’s “unflagging responsibility to decide cases and 

controversies,” the Supreme Court noted that disputes over the scope of legislative 

subpoena power had been litigated in numerous cases and “are squarely within the 

authority of the courts.” It referred to the U.S. Supreme Court’s recent decision in 

Trump v. Mazars, in which the High Court ruled on Congressional subpoenas to the 

President and set forth a balance of factors that courts must consider in examining 

subpoenas to minimize “interbranch confrontation.”

The Montana Supreme Court rejected the Legislature’s argument that it needed 

McLaughlin’s e-mails to investigate the potential for bias among judges who could be 

considering court challenges to legislation. First, under the Montana Constitution, the 

Judicial Standards Commission, not the Legislature, investigates allegations of judicial 

misconduct. Any concern about a judge making statements about cases that are or could 

come before the courts would be within the exclusive authority of the Judicial Standards 

Commission and the Supreme Court. Second, the U.S. Supreme Court in Republican Party 

v. White (2002) struck down as a First Amendment violation a Minnesota law prohibiting 

candidates for judicial election from announcing their views on disputed legal and political 

issues. Impartiality, the Supreme Court explained in White, guarantees a party that the 

judge who hears the case will apply the law to that party in the same way the judge applies 

it to any other party. A judge’s views regarding the relevant legal issues in a case is not a 

necessary component of equal justice. The Supreme Court explained in White that 

impartiality also means open-mindedness: “This quality in a judge demands, not that he 

 

1 This synopsis has been prepared for the convenience of the reader. It constitutes no part of the 

Opinion of the Court and may not be cited as precedent.

07/14/2021

Case Number: OP 21-0173
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have no preconceptions on legal issues, but that he be willing to consider views that oppose 

his preconceptions, and remain open to persuasion, when issues arise in a pending case.” 

The Montana Supreme Court emphasized the rules of judicial conduct that encourage 

judges to share their “special expertise” with the Legislature on matters concerning the law, 

the legal system, and court administration.

The Court noted longstanding constitutional principles that a legislative body may 

investigate only into those areas in which it may potentially legislate; a legislature cannot 

inquire into matters within the exclusive province of one of the other branches of 

government. Because McLaughlin had not retained the e-mails from individual judges 

registering their votes, the Legislature sought to investigate whether members of the 

Judiciary or employees of the Judicial Branch had deleted public records and information 

in violation of state law and policy. But the Legislature is not a law enforcement agency, 

and addressing alleged violations of existing law is an enforcement matter that is within 

the power of the executive branch. The Judicial Branch’s policies—which are available to 

the public—did not require members or employees of the branch to retain every e-mail. 

The Court concluded that the Legislature failed to show that compelling production of 

thousands of unredacted Judicial Branch messages, rather than undertaking other forms of 

inquiry, would advance its consideration of legislation on the matter of a judicial records 

retention policy. The Court thus held the subpoenas invalid to the extent they sought to 

determine whether Judicial Branch employees or officials violated state law or policy. 

The Court also held that the Legislature had not shown a valid legislative purpose 

in seeking to investigate whether the Court Administrator and members of the Judicial 

Branch had improperly used government time and resources to lobby the Legislature. The 

subpoenas were issued following a court challenge to the constitutionality of 

Senate Bill 140, a bill abolishing the Judicial Nomination Commission that had been in 

place to select nominees for filling judicial vacancies in Montana. McLaughlin had 

facilitated a poll of district judges to determine whether the Montana Judges Association 

should take a position on the bill. The Association voted to oppose the measure and went 

on record to make the Legislature aware of its position. The Court held that these actions 

did not give rise to a legislative purpose for the subpoenas. First, the Legislature again was 

seeking to perform a law enforcement function outside the scope of legislative authority. 

Second, state law excludes actions of public officials acting in their governmental 

capacities from the definition of “lobbying.” Third, under the statutory definition of 

“lobbyist,” the Court Administrator was not lobbying when she facilitated the polling of 

judges because she did not have personal contact with any legislators on the subject, and 

the Montana Judges Association—through its registered lobbyist—publicly reported its 

activities on the bill. 

The Supreme Court referenced both the Judicial Branch e-mail policy and the 

Code of Judicial Conduct, which expressly authorizes judges to use court “premises, staff, 

stationery, equipment, or other resources” for “incidental” activities that concern the 
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“law, the legal system, or the administration of justice.” Because “[j]udges are uniquely 

qualified to engage in the extrajudicial activities that concern” such matters, the Code of 

Judicial Conduct expressly allows them to “share that expertise with governmental bodies 

and executive or legislative branch officials.” 

Finally, the Court held, the legislative subpoenas were far too broad. They were not 

limited to “public records” or “public information” but encompassed information regarding 

confidential personnel-related matters; confidential Youth Court matters; confidential 

matters before the Judicial Standards Commission; potential on-going security risks to 

individual judges; ongoing cases and judicial work product; and information in which 

third parties have protected privacy interests. Rather than following avenues established 

by statute for seeking information from the Court Administrator or giving her the notice 

and opportunity to respond that due process requires for all other subpoenas, the 

Legislature demanded production within a 24-hour period from a separate agency. In turn, 

the Department of Administration Director failed to consider the significant potential 

confidentiality and privacy interests when she began her blanket release of the e-mails 

without giving McLaughlin notice or an opportunity to review the materials and raise any 

such concerns or seek protection of confidential information in a court of law. These basic 

safeguards were ignored.

In that regard, the Court pointed out that ensuring due process of the law is a judicial 

function, not a legislative function. If the Legislature issues a subpoena to a government 

officer that may reach information that is confidential by law or involves individual privacy 

interests of third parties, the government officer must have a chance to review the materials 

first, and any issues about disclosure must be presented to a court.

This is not to say, the Court agreed, that the Court Administrator is insulated from 

revealing information to the legislative branch of state government. “Far from it.” The 

Legislature has provided for alternative means by which to obtain information and to 

determine accountability of administrative matters in the Judicial Branch. Had the 

Legislature sought information through these means, it might have avoided interbranch 

confrontation instead of subpoenaing a broad swath of McLaughlin’s records without any 

notice to the Judicial Branch.

The Court ordered the Legislature to return all materials provided under the 

previously issued subpoenas; prohibited the Legislature, its legal counsel, and the 

Department of Administration from disclosing or disseminating any additional information 

provided in response to the subpoenas; and held that the subpoenas could not be enforced 

or reissued.

Two members of the Court wrote additional concurring opinions. Specially

concurring with the decision, Justice McKinnon would also have quashed the subpoenas 

to McLaughlin, but upon the grounds that the Legislature’s investigation into alleged 
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misconduct of the Judicial Branch violated the constitutional doctrine of separation of 

powers. Without question, the Legislature’s goal in issuing the subpoenas was to expose 

purported violations by judges of ethical codes, state law, and state policy. These are 

plainly allegations of misconduct which do not have a valid legislative purpose. Montana’s 

Constitution specifically provides the method for addressing judicial misconduct is through 

the Judicial Standards Commission. The constitutional doctrine of separation of powers 

does not tolerate attempts to control, interfere, or intimidate one branch of government by 

another.

In a separate concurring opinion, Justice Sandefur noted his complete concurrence 

in the comprehensive analysis and holdings in the majority opinion but wrote separately to 

further concur in Justice McKinnon’s special concurrence, as supplemental reasoning 

wholly consistent with the Court’s main analysis and holdings. Justice Sandefur further 

stressed the critical importance of adherence and respect for the constitutional separation 

of powers and the rule of law in the face of the reckless “crisis” unscrupulously ginned-up 

for the purely partisan purpose of undermining the constitutional function of Montana’s 

duly-elected non-partisan Judicial Branch—to conduct independent review of legislative 

enactments for compliance with the supreme law of this state, the Montana Constitution.

District Judge Donald Harris of Billings joined the Court on the case in place of 

Justice Jim Rice, who recused himself after filing his own lawsuit to challenge the 

Legislature’s subpoena for his electronic records.