McLaughlin v. Mont. State Legislature

• Decision Date: 14 July 2021
• Docket Number: OP 21-0173
• Citation: 493 P.3d 980
• Court: Montana Supreme Court
• Parties: Beth MCLAUGHLIN, Petitioner, v. The MONTANA STATE LEGISLATURE, and the Montana Department of Administration, Respondents.

493 P.3d 980

Beth MCLAUGHLIN, Petitioner,

v.The MONTANA STATE LEGISLATURE, and the Montana Department of Administration, Respondents.

OP 21-0173

Supreme Court of Montana.

Decided: July 14, 2021

For Petitioner: Randy J. Cox, Boone Karlberg P.C., Missoula, Montana

For Respondent Montana State Legislature: Austin Knudsen, Montana Attorney General, Kristin Hansen, Lieutenant General, Derek J. Oestreicher, General Counsel, Helena, Montana

For Respondent Montana Department of Administration: Michael P. Manion, Department of Administration, Helena, Montana, Dale Schowengerdt, Crowley Fleck PLLP, Helena, Montana

Justice Beth Baker delivered the Opinion and Order of the Court.

¶1 Beth McLaughlin, Court Administrator for the Montana Judicial Branch, brought this original proceeding seeking to quash and permanently enjoin the enforcement of successive subpoenas the Montana Legislature issued, first to the Director of the State Department of Administration and later to McLaughlin, for the production of McLaughlin's e-mails between January 4 and April 12, 2021. The second subpoena also directed production of McLaughlin's state-owned computers and telephones used to facilitate polling of state judges. At our request, both Respondents have submitted summary responses in accordance with M. R. App. P. 14(7). The Legislature also filed a motion to dismiss, which McLaughlin opposes. We considered all parties’ submissions and relevant legal authorities and submitted the matter for decision on May 26, 2021.¹

¶2 Acknowledging the Legislature's authority to obtain information in the exercise of its legislative functions under the Montana Constitution, we conclude that the subpoenas in question are impermissibly overbroad and exceed the scope of legislative authority because they seek 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. We hold further that, if the Legislature subpoenas records from a state officer like the Court Administrator auxiliary to its legislative function, whether those records be in electronic or other form, a Montana court—not the Legislature—must conduct any needed in camera review and balance competing privacy and security interests to determine whether records should be redacted prior to disclosure.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 We described the events giving rise to this proceeding in our May 12, 2021 Opinion and Order. McLaughlin v. Montana State Legislature , 2021 MT 120, 404 Mont. 166, ––– P.3d –––– ( McLaughlin I ). Briefly summarized, the Montana Legislature asked McLaughlin to provide information on a poll she facilitated of the Montana Judges Association pertaining to Senate Bill 140, a bill then under consideration by the Legislature. She responded to the request but had not retained and did not provide narrative responses that some of the judges had included. Under an unsigned April 8, 2021 subpoena from the Chair of the Senate Judiciary Committee, the Legislature directed Montana Department of Administration Director Misty Ann Giles to appear the following afternoon and produce without subject matter limitation "[a]ll emails and attachments sent and received by Court Administrator Beth McLaughlin between January 4, 2021 and April 8, 2021." The Subpoena also requested "[a]ny and all recoverable deleted emails" McLaughlin sent or received during the same time period. The subpoena excluded only "any emails and attachments related to decisions made by the justices in disposition of final opinion." The subpoena did not identify the purpose or subject of the inquiry. Though not served, McLaughlin learned of the subpoena when she received a "courtesy copy" late afternoon on April 9, 2021. By that time, Director Giles already had provided several thousand pages of e-mail messages to the Legislature.

¶4 McLaughlin commenced this proceeding on April 12, the day after we issued a temporary order to stop further production until the issues could be reviewed following response from the Legislature and the Department. Two days later, through a subpoena signed by the Senate President and Speaker of the House of Representatives, the Legislature directed McLaughlin to appear the following Monday and to produce:

(1) All emails and attachments sent and received by your government email account, [redacted], including recoverable deleted emails, between January 4, 2021, and April 12, 2021 delivered as hard copies and .pst digital files.

(2) Any and all laptops, desktops, hard-drives, or telephones owned by the State of Montana which were utilized in facilitating polls or votes with Montana Judges and Justices regarding legislation or issues that may come or have come before Montana courts for decision.

The subpoena advised that it "excludes any emails, documents, and information related to decisions made by Montana justices or judges in the disposition of any final opinion or any decisional case-related matters." It stated further that "[a]ny personal, confidential, or protected documents or information responsive to this request will be redacted and not subject to public disclosure." McLaughlin filed a motion in this proceeding to quash the second subpoena as well; we temporarily enjoined its enforcement pending further proceedings in this matter.

STANDARDS OF REVIEW

¶5 This is an original proceeding seeking interpretation of statutory and constitutional provisions. This Court exercises plenary authority in the construction and application of the Montana Constitution and statutes. In re Engel , 2008 MT 215, ¶ 4, 344 Mont. 219, 194 P.3d 613 (citing State v. Racz , 2007 MT 244, ¶ 13, 339 Mont. 218, 168 P.3d 685 ). "Whether an issue presents a non-justiciable political question is a legal conclusion that this Court reviews de novo." Columbia Falls Elementary Sch. Dist. No. 6 v. State , 2005 MT 69, ¶ 12, 326 Mont. 304, 109 P.3d 257 ; see also Larson v. State , 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241 ; Reichert v. State , 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455.

DISCUSSION

Legislative Power to Investigate

¶6 The Montana Constitution divides the power of government "into three distinct branches—legislative, executive, and judicial." Mont. Const. art. III, § 1. "The legislative power is vested in a legislature consisting of a senate and a house of representatives." Mont. Const. art. V, § 1. Like the United States Constitution, Montana's Constitution contains "no enumerated constitutional power [in the Legislature] to conduct investigations or issue subpoenas," but it is well-established that a legislative body "has power ‘to secure needed information’ in order to legislate." Trump v. Mazars USA, LLP , ––– U.S. ––––, 140 S. Ct. 2019, 2031, 207 L.Ed.2d 951 (2020) (quoting McGrain v. Daugherty , 273 U.S. 135, 161, 47 S. Ct. 319, 324, 71 L.Ed. 580 (1927) ). "This ‘power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.’ " Mazars , 140 S. Ct. at 2031 (quoting McGrain , 273 U.S. at 174, 47 S. Ct. at 328 ); see also 43 Mont. Op. Att'y Gen. 60 at 222 (1990) ("The legislative power described by Article V, section 1 of the Montana Constitution contains the inherent power of investigation."). "This has been recognized from the earliest times in the history of U.S. legislation, both federal and state, and from even earlier epochs in the development of British jurisprudence." Mason's Manual of Legislative Procedure (2010 ed.), § 795.1 at 561.

¶7 The Montana Legislature has by statute set forth its authority to issue subpoenas "requiring the attendance of any witness before either house of the legislature or a committee of either house" and the requisite form of the subpoenas so issued. Section 5-5-101, MCA. A witness subpoenaed by the Legislature "cannot refuse to testify to any fact or to produce any paper concerning which the witness is examined for the reason that the witness's testimony or the production of the paper tends to disgrace the witness or render the witness infamous." Section 5-5-105(2), MCA.² See also § 5-11-107, MCA (providing that a statutory or interim committee of the legislature "may hold hearings, administer oaths, issue subpoenas, compel the attendance of witnesses and the production of papers, books, accounts, documents, and testimony, and cause depositions of witnesses to be taken in the manner prescribed by law for taking depositions in civil actions in district court" and allowing enforcement of the same by "the district court of any county[.]").

¶8 A legislature's "power to obtain information is ‘broad’ and ‘indispensable.’ " Mazars , 140 S. Ct. at 2031. Courts generally must indulge a presumption that the legislative activity has as its object a legitimate goal toward possible legislation, McGrain , 273 U.S. at 178-79, 47 S. Ct. at 330. But the Legislature's investigative power, broad as it is, "is not unlimited." Mazars , 140 S. Ct. at 2031 ; Watkins v. U.S. , 354 U.S. 178, 187, 77 S. Ct. 1173, 1179, 1 L.Ed.2d 1273 (1957). The Supreme Court has stated,

Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive.

Barenblatt v. United States , 360 U.S. 109, 111-12, 79 S. Ct. 1081, 1085, 3 L.Ed.2d 1115 (1959).

¶9 The legislative branch is not a law enforcement agency; its inquiry "must be related to, and in furtherance of, a legitimate task of the [Legislature]." Watkins , 354 U.S. at 187, 77 S. Ct. at 1179. To serve a "valid legislative purpose," the subpoena "must ‘concern[ ] a subject on which legislation "could be had." ’ ...