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MT SupCo administrator: U.S. Supreme Court should deny Knudsen’s appeal in judiciary dispute

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Posted at 9:25 PM, Feb 09, 2022
and last updated 2022-02-09 23:25:03-05

HELENA — Montana Attorney General Austin Knudsen’s request to have the U.S. Supreme Court intervene in a legislative dispute with the Montana Supreme Court should be denied, because no federal issues are involved, the state court’s administrator argued Wednesday.

State Supreme Court Administrator Beth McLaughlin also said Knudsen’s arguments on behalf of the Republican-led Legislature, asking the nation’s high court to take the case, are “heavy on rhetoric but light on factual and legal support.”

“The Legislature’s attempt to rewrite the history of this litigation and the issues presented to obtain review should be rejected,” wrote her lawyer, Randy Cox of Missoula.

Wednesday’s filing is the latest action in a months-long battle between majority Republicans in the 2021 Montana Legislature and the state Supreme Court and judiciary, in which GOP lawmakers have sought to paint the state high court and judiciary as unduly biased against Republican-passed laws.

Last August, the Montana Supreme Court said the Legislature exceeded its authority when GOP leaders used their subpoena power in April 2021 to obtain thousands of court emails, searching for potential bias. It quashed the subpoenas and ordered the records returned.

The court also earlier rejected Knudsen’s request that the entire court remove itself from the case and let other judges decide, because it involved Supreme Court personnel and its own policy. Knudsen in December asked the U.S. Supreme Court to take the case and overturn that ruling.

He said the Montana Supreme Court improperly ruled on issues directly affecting itself, violating due process of law.

Knudsen and the Legislature will file a final reply to McLaughlin before the high court decides whether to take the case, probably by this spring. The U.S. Supreme Court accepts only a small percentage of cases offered to it on appeal.

McLaughlin told the U.S. Supreme Court Wednesday that whether Montana’s justices should have recused themselves from the case is a decision based entirely in state law, and not federal “due process” as argued by the Legislature.

The Montana justices properly decided the case, based on state law, and the Legislature’s request that the justices remove themselves was part of an attempt to manufacture a conflict that would “disrupt the normal process of a tribunal” that must decide the issues, she said.

“If allowed, future litigants will be encouraged to create conflicts, suggest improprieties and demand recusals for purely tactical reasons,” her lawyer wrote. “Countenancing these tactics would paralyze Montana’s judiciary, in which a single court – the Montana Supreme Court – possesses original and appellate jurisdiction and authority to issue writs.”

She also said the Legislature does not have due process rights, which are reserved for individuals, and that the Montana Supreme Court’s decision on the subpoenas is consistent with earlier U.S. Supreme Court decisions on the breadth of subpoena power by a legislature or Congress.