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Montana AG wants to disqualify Supreme Court from case involving itself

Court ruling on subpoenas requesting internal emails
MT Supreme Court justices.jpg
Posted at 8:20 AM, May 04, 2021
and last updated 2021-05-04 10:20:32-04

HELENA — In the escalating battle between leading Republicans and the Montana judiciary, Attorney General Austin Knudsen has asked that all seven justices of the Montana Supreme Court disqualify themselves from deciding the legality of legislative subpoenas seeking internal documents from the court.

Knudsen, a Republican, filed the motion late Friday, saying the justices have an inherent conflict of interest in ruling on the subpoenas, which are directed at the court, and the request to block them, brought by its top administrator.

“We are well beyond the point where the court’s impartiality and independence `might reasonably be questioned,’” wrote Knudsen’s general counsel, Derek Oestreicher. “This is not merely the appearance of impropriety. This is actual impropriety.”

Knudsen filed his request in the case brought by Court Administrator Beth McLaughlin, who asked the Supreme Court three weeks ago to quash subpoenas from legislative Republicans that sought internal emails and other documents from the court.

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

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.

The Supreme Court on April 16 ordered the subpoenas quashed, while it decides whether those subpoenas are legal.

The court also is in the midst of deciding the constitutionality of a law – backed and passed by Republicans – that gives Republican Gov. Greg Gianforte more power to choose and appoint state judges, to fill vacancies on the Supreme Court and district courts.

Knudsen’s motion said the Supreme Court has an obligation to “promote confidence in the independence, integrity or impartiality of the judiciary,” but that its actions so far in the case “do precisely the opposite.”

“This matter has risen because evidence of judicial misconduct has come to public light,” Oestreicher wrote. “The Legislature is actively investigating that misconduct and the judiciary is the target of that investigation. The Court should not presume to self-adjudicate the limits of that investigation.”