The Montana attorney general last week filed a motion for the state Supreme Court to recuse itself from a case involving its own administrator.
Republican Attorney General Austin Knudsen in an April 30 filing called it an "obvious conflict of interest" for the Supreme Court to hear a case deciding if Administrator Beth McLaughlin should release emails involving the judicial branch.
Hearing the case, and previously granting an emergency weekend motion by McLaughlin to quash a subpoena for her emails, undercut the public's confidence in the integrity of the judiciary, Knudsen argued.
Friday's filing from the attorney general's office is part of a case before the Supreme Court in which McLaughlin is challenging a legislative subpoena for her emails and testimony. It comes in tandem with a Republican-led investigation into alleged violations of public records retention laws and judicial bias. That stems from polls on pending legislation, which were discovered in McLaughlin's emails.
While Knudsen has asked the justices to disqualify themselves, the Legislature, led by Republicans, has sought to altogether dismiss McLaughlin's case challenging the legislative subpoena.
GOP lawmakers also argue the Supreme Court has a conflict of interest in ruling on a case regarding the administrator it appointed and employs. McLaughlin's attorney has pushed back on the argument, saying in court filings the Legislature is trying to act as its own judge.
The legislative committee conducting the investigation also subpoenaed all the Supreme Court justices' communications. The court put a halt on those subpoenas, McLaughlin's included, until hearing further arguments on their validity. McLaughlin and a Supreme Court justice have called the probe an overreach in their respective cases challenging the subpoenas.
But Knudsen argued in his filing that the Supreme Court should not play a role in limiting the Legislature's investigation because it is a target of that investigation.
"The self-interest is so apparent, any attempt by this Court to decide the question runs afoul of state law and the (Montana Code of Judicial Conduct)," Knudsen wrote.
Randy Cox, McLaughlin's attorney, opposed Knudsen's motion to disqualify the justices in a statement to the Montana State News Bureau on Tuesday.
"The Attorney General suggests justices of the Montana Supreme Court know Beth McLaughlin personally and, because of that, cannot fairly judge a case appropriately filed before them," Cox said in an email. "The argument misses the point of the lawsuit. The case before the court involves legal issues regarding the permissible scope of a legislative subpoena. The case is about the law, not about Beth. Whatever the ruling, Beth will abide by it. Further, it is important to note the court has made no substantive ruling on any part of the case. All it has done so far is put production of documents on ice until the legal issues can be briefed and decided in an orderly fashion. Courts do that all the time and those kinds of orders are neither controversial nor unusual."
The Supreme Court's internal operating rules state if a justice disqualifies themselves from a case, the chief justice or acting chief justice shall designate a replacement from the state District Court judges.
Democrats have accused Republicans of attempting to cripple public confidence in the judicial branch — through bills passed last session and by using the Department of Administration, which is housed in the executive branch, to obtain over 5,000 emails from the judiciary.
Republicans, holding the majority in both legislative chambers, have said they sought to give Republican Gov. Greg Gianforte broader power to pick judges more to his liking to reconfigure a judicial branch they deem left-leaning.
The Senate last month rejected a District Court judge appointed by the previous Democratic governor, in part citing the judge's past as a Democratic lawmaker. On Monday the governor's office said it was soliciting applications for the open bench, with a June 1 deadline. The governor's appointee will be named in July 2021, according to the press release.