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Justices Deny Sweeping Recusal Request in Montana Supreme Court Districting Case

The state attorney general’s office wanted all seven Montana Supreme Court justices to step back from a case

By Eric Dietrich, Montana Free Press

A unanimous Montana Supreme Court has shot down an argument by state attorneys that all sitting justices should recuse themselves from a case about an effort to switch the court from statewide to district-based elections.

State attorneys working under Republican Attorney General Austin Knudsen, representing Republican Secretary of State Christi Jacobsen, had argued that Montana’s seven Supreme Court justices should hand the case over to other judges because its outcome could affect the justices’ campaigns should they choose to run for re-election. That request was denied in an order issued by the high court Tuesday.

At issue is a proposed ballot measure that the Republican-controlled Montana Legislature planned to put before Montana voters this fall. If put on the ballot and passed by a majority vote, the measure would reconfigure the statewide elections that Montana has used to select its high court justices since statehood.

GOP lawmakers had argued the change would make the court better aligned with Montana’s electorate. Opponents accused the measure’s supporters of “judicial gerrymandering”  — drawing a district map deliberately designed to elect more conservative justices.

After a bill to place the change before voters in November passed the Legislature last year, some of those opponents filed suit. In March, that litigation resulted in a ruling by a district court judge in Bozeman striking the measure from the fall ballot. That judge, Peter Ohman, cited a 2012 case, Reichert v. State, in which the Montana Supreme Court declared a similar measure incompatible with the intent of the state Constitution.

Knudsen’s office appealed that ruling up to the state Supreme Court, pairing its appeal filing with a motion seeking the seven justices’ recusal. The district-based-elections ballot measure, state attorneys argued, presents a direct conflict for existing justices because it would “make it easier for upstart candidates with strong local ties to defeat incumbent justices with greater statewide name recognition and institutional backing.”

“Each justice of this Court holds a clear, direct, and personal interest in the outcome of this case,” wrote Solicitor General David Dewhirst. 

That argument echoes the debate that played out in another case, McLaughlin v. Legislature, that spun out of a dispute between Republican lawmakers and the Montana judiciary over the bounds of the Legislature’s power to subpoena internal court documents, including emails in which some judges and Supreme Court justices discussed proposed bills they said could compromise the judiciary.

Montana Supreme Court justices rebuffed a similar recusal push from the attorney general’s office in the McLaughlin case, with Justice Laurie McKinnon writing, “The Legislature’s blanket request to disqualify all members of this court appears directed 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.”

Legislative Republicans and Knudsen responded with an unsuccessful push to appeal the matter to the Supreme Court of the United States.

The state Supreme Court cites both the Reichert and McLaughlin decisions in its new order, saying their precedent guides its decision. The possibility of being a future candidate for re-election doesn’t amount to a significant threat to a judge’s impartiality, the court concluded, adding that if the possibility of being a future state Supreme Court candidate is considered a disqualifying conflict of interest, the judiciary would be left without anyone qualified to hear the case.

“As we noted in Reichert, ‘the potential’ that any given member of this Court could seek re-election and ‘the potential’ that a district judge called in to substitute could also decide to run for the Supreme Court mean that ‘no judge in this state — indeed, no otherwise qualified person with ‘the potential’ to run for Supreme Court justice — could sit on [the] case,’” the court wrote.

The attorney general’s office had asked for the case to be heard by lower court judges who aren’t active Supreme Court candidates and who didn’t participate in an internal poll where judges voted on whether to have the judicial branch’s lobbyist take a formal stance on the district-based-election measure.

This week’s ruling doesn’t decide whether the district-based-election proposal will face voters this fall, but rather concerns who will make that decision, leaving the current Supreme Court justices with jurisdiction over the case. Their final decision on the ballot measure will come at a later date.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.

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