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MT Supreme Court rejects AG request to disqualify itself in email case

Court says Legislature `manufactured a conflict'
Mt Supco another wide shot.jpg
Posted at 4:00 PM, May 12, 2021
and last updated 2021-05-13 10:08:32-04

HELENA — A unanimous Montana Supreme Court on Wednesday rejected a request by Attorney General Austin Knudsen to disqualify all seven of its justices from the case involving its internal documents and alleged bias.

The full ruling can be read here.

Justice Laurie McKinnon, writing for the high court, said the Republican-led Legislature has “manufactured a conflict” by issuing subpoenas to the justices, seeking the documents – and that attacking a court or judge is not sufficient grounds to force them to step down from the case.

She said it’s the court’s job to decide the legality of the legislative subpoenas, and that stepping aside would be shirking its constitutional duty.

“Were the court to succumb to the Legislature’s request and evade our responsibilities … We are convinced that public confidence in our integrity, honesty, leadership, and ability to function as the highest court of this State would be compromised,” McKinnon wrote.

Montana Supreme Court Laurie McKinnon.

McKinnon’s order clears the way for the Supreme Court to decide whether the legislative subpoenas are proper – a key question in what’s become an escalating battle waged by the state’s Republican leaders against the high court and the state’s judiciary.

Legislative Republicans are alleging the court – and, some members of the state judiciary – have expressed opinions on the constitutionality on laws that may come before the courts, and are therefore not impartial judges.

Both the attorney general’s office and a leading Republican legislator blasted Wednesday’s order, saying the court clearly has a conflict of interest in the case, and should recuse itself.

“As the Legislature continues to investigate the deletion of public records, improper use of state resources, pre-judging matters that could come before the courts and other potential judicial misconduct, the Montana Supreme Court can’t keep its story straight and continues to sink itself into a deeper and deeper conflict of interest,” said Sen. Greg Hertz, R-Polson.

Hertz is chairing a special committee created by legislative Republicans to investigate the state judiciary.

Beginning in early April, legislative Republicans have issued a series of subpoenas seeking emails and other internal communications from the Supreme Court, saying the documents could shed light on alleged bias.

The Supreme Court on April 16 blocked those subpoenas while it decides whether they are legal.

Republicans also created the Select Committee on Judicial Accountability and Transparency to investigate the judiciary, appropriated $289,000 to fund it, and created a special counsel with specific powers to lead the investigation.

The state Republican Party also sent out mailers earlier this month, assailing the Supreme Court, asking what it was hiding by blocking the subpoenas.

Democrats in the Legislature say the attack is an organized campaign to smear the reputation of the judiciary, which likely will be asked to rule on the constitutionality of several key bills passed by the GOP-led 2021 Legislature.

Almost two weeks ago, Knudsen’s office requested that all seven Supreme Court justices remove themselves from the case deciding the legality of the subpoenas.

His request said “evidence of judicial misconduct has come to public light” and that the Supreme Court should not “self-adjudicate the limits” of the Legislature’s investigation of that judicial conduct.

In her opinion Wednesday, McKinnon said the request is an attempt to “disrupt the normal process of a tribunal whose function is to adjudicate the underlying dispute consistent with the law, the constitution, and due process.”

The legal issues to be decided are in a case brought by Supreme Court Administrator Beth McLaughlin, who was issued two subpoenas by the Legislature, seeking the court internal documents, McKinnon wrote.

She said the Legislature created the so-called conflict itself, by issuing separate subpoenas to the seven justices, requesting essentially the same information, and then asking that the justices be disqualified from the case, without evidence of bias.

“Recusal under such circumstances would permit a party to avoid a particular judge simply by attacking or suing him,” she wrote. “Here, the Legislature itself has created the conflict by issuing a subpoena to each justice during a pending proceeding involving the same issues raised in a legislative subpoena.”