B. McLaughlin v. MT Legislature

06/29/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0173
OP 21-0173
_________________
BETH McLAUGHLIN,
Petitioner,
v.
ORDER
The MONTANA STATE LEGISLATURE, and
the MONTANA DEPARTMENT OF
ADMINISTRATION,
Respondents.
_________________
On June 22, 2021, Respondent Montana State Legislature (Legislature) filed a
motion to dismiss this action as moot, citing the Legislature’s June 22, 2021 letter to
Petitioner Beth McLaughlin (McLaughlin) withdrawing the April 14, 2021 legislative
subpoena to McLaughlin at the center of this proceeding. McLaughlin opposes this motion.
The background facts of this case have been laid out in McLaughlin v. Legislature,
2021 MT 120, 404 Mont. 166, ___ P.3d ___. The procedural history relevant here is
summarized as follows.
McLaughlin’s April 12, 2021 emergency petition to this Court requested, among
other things, that this Court temporarily stay further production of Judicial Branch emails
by the Department of Administration (DOA), acting pursuant to an April 8, 2021
Legislative Subpoena. See Petition for Original Jurisdiction and Emergency Request to
Quash/Enjoin Enforcement of Legislative Subpoena. It also asked this Court to enjoin the
Legislature from “disseminating, publishing, re-producing, or disclosing in any manner,
internally or otherwise, any documents produced pursuant to the Subpoena” and to issue
an order “directing the Montana Legislature to immediately return any documents
produced pursuant to the Subpoena, or any copies or reproductions thereof, to Beth
McLaughlin.” On April 14, 2021, the Legislature issued another subpoena, this one to
McLaughlin, directing her to appear before the Legislature and produce documents as well
as State “laptops, desktops, hard-drives, or telephones” used to facilitate polling of
Montana judges and justices on pending legislation. McLaughlin filed a supplementary
filing notifying the Court of this development and requesting an order quashing the new
subpoena. This Court ordered a temporary stay on all Legislative subpoenas seeking
electronic judicial records pending consideration of proper legal filings in due course. The
Legislature withdrew its subpoena to McLaughlin and moved to dismiss this matter as moot
on June 22, 2021.
A matter is considered moot when the issue has ceased to exist such that it no longer
presents an actual controversy and the court cannot grant effective relief. Shamrock
Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, 974 P.2d 1150. The
mootness doctrine does, however, contain several exceptions, including “public interest,”
“voluntary cessation,” and “capable of repetition, but evading review.” Havre Daily News,
LLC v. City of Havre, 2006 MT 215, ¶ 32-33, 333 Mont. 331, 142 P.3d 864. McLaughlin
cites all three doctrines in support of her response to the Legislature’s motion to dismiss.
McLaughlin petitions this Court to address both (a) the temporarily-stayed
subpoenas directed to her and her information and (b) the documents that the Legislature
has already obtained through the DOA, before McLaughlin was able to seek review from
this Court. The Legislature’s withdrawal of its subpoena to McLaughlin does not impact
the litigation surrounding the status of the documents the Legislature has already obtained.
The Legislature has not made this Court aware of any effort to return, destroy, account for,
or otherwise address the thousands of unredacted Judicial Branch emails that it previously
obtained, without judicial oversight or procedural protections, through the DOA. Thus,
McLaughlin’s request that this Court order such documents be immediately returned is not
moot. As counsel for McLaughlin pointed out while unsuccessfully attempting to negotiate
for a pause amidst the ongoing release of thousands of unredacted Judicial Branch emails
with which to implement legal and procedural protections, it is “uncertain how that bell
can be un-rung,” once the information has been released. Petitioner’s Response to
Respondent’s Motion to Dismiss as Moot, Exhibit A-4 (filed June 24, 2021) (Petitioner’s
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Response). The Legislature’s decision to act first, and deal with legal ramifications later,
does not allow it to declare the issue moot when it determines that it has achieved what it
wishes. Because the issue has not ceased to exist as an actual controversy and it is within
the power of this Court to grant effective relief, McLaughlin’s petition is not moot with
respect to these documents. See Shamrock Motors, ¶ 19.
Addressing the Legislature’s April 14, 2021 subpoena directed to McLaughlin,
McLaughlin raises the “public interest exception” to the mootness doctrine. Havre Daily
News, LLC, ¶ 32 (quoting Walker v. State, 2003 MT 134, ¶ 41, 316 Mont. 103, 68 P.3d
872). This exception applies to a “[(1)] question of public importance [(2)] that will likely
recur and [(3)] whose answer will guide public officers in the performance of their duties.”
Gateway Opencut Mining Action Group v. Bd. of County Comm’rs, 2011 MT 198, ¶ 14,
361 Mont. 398, 260 P.3d 133. “We have consistently held that where questions implicate
fundamental constitutional rights or where the legal power of a public official is in
question, the issue is one of public importance.” Ramon v. Short, 2020 MT 69, ¶ 22, 399
Mont. 254, 460 P.3d 867 (citations omitted); see also Ramon, ¶ 24 (noting that a ruling
would benefit the government officers at issue by providing “authoritative guidance on an
unsettled issue” in the absence of an existing Montana Supreme Court ruling on the matter).
First, the scope of the legislative subpoena power when directed towards another
branch of government is clearly an issue of great public interest, as it goes to not only the
“legal power of a public official,” Ramon, ¶ 22, but the very core of a constitutional system
premised on separation of powers. See Brown v. Gianforte, 2021 MT 149, ¶¶ 52-66, 404
Mont. 269, ___ P.3d ___ (Rice, J., concurring).
Second, while conflicts between the political branches and members of the judicial
branch have been exceedingly rare—perhaps a prerequisite to the long-term survival of
functioning democracy—it appears in this case that the issue is likely to reoccur.
McLaughlin points to material in the record demonstrating that the Legislature intends to
continue seeking the documents at the heart of the present controversy. See Petitioner’s
Response, Exhibit B-3 (quoting Senator Greg Hertz, Chair of the “Select Committee on
Judicial Transparency and Accountability” stating that “[t]o be clear, we expect the judicial
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branch to release public records . . . .”). In its motion to dismiss, the Legislature represents
that its “justified interests in the underlying matters” remains fully intact, despite its motion
to dismiss. See The Montana State Legislature’s Motion to Dismiss as Moot at 3 (filed
June 22, 2021) (Motion to Dismiss).
The history of this litigation has given us reason to be skeptical of the
representations by the Legislature and its counsel in this matter. Rather than work in good
faith with McLaughlin to develop an orderly process to protect confidential and privileged
materials, the Legislature unilaterally accessed thousands of unredacted messages, without
proper procedural protections, through the DOA. Once McLaughlin learned of this release,
the record shows that the repeated efforts made by McLaughlin’s counsel to seek a good
faith resolution to implement a process to protect citizens’ privacy rights went unrequited.
See Petitioner’s Response, Exhibit A (showing a series of correspondence from Petitioner’s
counsel repeatedly requesting “an orderly process that protects existing privacy interests”
amidst the wholesale release of judicial branch communications likely containing “private
medical information, personnel matters including employee disciplinary issues,
discussions with judges about ongoing litigation, information regarding Youth Court cases,
judicial work product, ADA requests for disability accommodations, confidential matters
before the Judicial Standards Commission, and information that could subject the State to
liability were protected information exposed.”).
Third, a ruling on the matter will guide public officers in the performance of their
duties. We are aware of no Montana caselaw directly addressing the issue presented by
this Petition, which could guide the Legislature, the Court Administrator, and the DOA in
the future. The matter at hand is one of serious public interest, is likely to reoccur, and is
in need of a ruling to guide public officers in the performance of their duties. The public
interest exception to the mootness doctrine applies.
The second mootness exception pointed to by McLaughlin is the “voluntary
cessation” doctrine. This doctrine applies when the challenged conduct is of indefinite
duration but is voluntarily terminated prior to the completion of appellate review. Havre
Daily News, LLC, ¶ 34. Due to the concern that a party “may utilize voluntary cessation
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to manipulate the litigation process, ‘the heavy burden of persuading’ the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party
asserting mootness.’” Havre Daily News, LLC, ¶ 34 (quoting Friends of the Earth, Inc., v.
Laidlaw Environmental Services, Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708 (2000)
(internal quotations and alterations omitted)).
Unfortunately, the actions of counsel before this Court during these proceedings
have raised serious concerns of “manipulat[ion] of the litigation process.” See McLaughlin
v. Mont. State Legislature, 2021 MT 120, ¶¶ 3, 11, 404 Mont. 166, ___ P.3d ___ (noting
that counsel’s representations that Court orders would not be respected and subsequent
“unilateral attempt to manufacture a conflict by issuing subpoenas to the entire Montana
Supreme Court . . . . appears directed to disrupt the normal process of a tribunal”).
Notably, in its Motion to Dismiss, the Legislature has not committed itself to refraining
from resuming the challenged conduct if its motion were granted. The gravity of the
problem is once again magnified by the fact that the Legislature already has in its
possession thousands of unredacted Judicial Branch emails—after demonstrating a
willingness to act quickly and without notice before an aggrieved party can seek procedural
protections or judicial review—significantly raising the stakes should the Legislature
resume the complained-of conduct. See Petitioner’s Notice of Additional Legislative
Subpoena at 3 (filed Apr. 26, 2021) (notifying the Court that the Legislature had sent
another subpoena to DOA seeking McLaughlin’s emails on April 13, 2021, without
notifying McLaughlin); Legislative Subpoena to Director Misty Ann Giles of April 8, 2021
(directing DOA to compile and produce thousands of McLaughlin’s emails to the
Legislature by the next day). Here, the Legislature has failed to bear its “heavy burden” of
persuading this Court that it will not simply reissue the same subpoena to McLaughlin
should it be dissatisfied with the results of its efforts to obtain the sought-after materials
without litigation. Thus, the “voluntary cessation” exception to the mootness doctrine
applies.
For the reasons stated above, this Court has determined that the matter is not moot
with regard to documents already in the Legislature’s possession. Additionally, the
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mootness doctrine does not apply with respect to the withdrawn subpoena to McLaughlin
as it falls within the public interest and voluntary cessation exceptions.
THEREFORE,
IT IS ORDERED that the motion to dismiss is DENIED.
DATED this 29th day of June, 2021.
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA
/S/ DONALD HARRIS
Honorable Donald Harris, District Judge
sitting for Justice Jim Rice
6 Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
June 29 2021