Attorney General: Disqualify all justices, start negotiations with Legislature

Knudsen responds to Court Administrator’s motions

By: - May 3, 2021 5:21 pm

The Great Seal of the State of Montana in the Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

Montana Attorney General Austin Knudsen has filed a response to a set of emergency motions by Montana Courts Administrator Beth McLaughlin, asserting that all the justices should disqualify themselves and, in a separate response, proposed that the Supreme Court negotiate with Legislature for the release of as many 5,000 of her emails.

In two motions filed late Friday, Knudsen’s office suggested that all the justices must disqualify themselves because their relationship and proximity to McLaughlin, which he said makes it impossible for a fair trail. Moreover, his office argues that the court, which has been inundated with motions, filings and petitions should be stopped so that lawmakers can negotiate with the judicial branch.

The genesis of this suit took place when the GOP-led Senate Judiciary Committee issued a subpoena to the Department of Administration Leader Misty Ann Giles for all of McLaughlin’s email. The DOA is part of the executive branch, but holds the email servers of all three branches of state government. The legislative subpoena was never issued to McLaughlin, but it ordered all of her emails turned over in less than 48 hours, on a Saturday afternoon, which precipitated an emergency motion from the her lawyer to the Supreme Court. On a Sunday afternoon, approximately 24 hours after the Legislature had demanded her email, the Supreme Court issued an order to stop the email search until the matter could be adjudicated. Knudsen’s office fired back that it would not obey the order, escalating the fight that has ensnared all three branches of government.

Friday’s filing by Knudsen was the latest response, which seeks to disqualify the entire court and open negotiations that don’t involve a courtroom.

Disqualify everyone

Citing due process concerns that allege the lawmakers may not be able to get a fair hearing, Knudsen’s office suggests the Supreme Court has no other option but to disqualify the six remaining justices because they work around McLaughlin, an appearance that opens the court to perceived bias, the court papers say.

Judge Matthew Wald of Big Horn County has been selected to take the place of Chief Justice Mike McGrath who previously recused himself.

“Administrator McLaughlin — who was appointed by this court, who performs duties assigned by this court, and who serves at the pleasure of this court — filed this petition to prevent the production of this court’s public record,” the motion said. “McLaughlin’s close relationship with this tribunal — and her efforts to prevent disclosure of this Court’s records — poses far more than a reasonable question about the Court’s ability to hear and decide this matter impartially.”

McLaughlin, through her attorney, Randy J. Cox, has said that she never refused to turn over the records, but raised privacy concerns that much of the material contained in thousands of emails concerned confidential information about employees, youth and deliberative processes of the court, which were protected by privacy laws, and, if released, might open government to liability.

“This matter has arisen because evidence of judicial misconduct has come to public light,” the court document states. “The Legislature cannot get a fair and impartial trial in this case under these circumstances.”

Negotiation, not litigation

Knudsen’s other filing, which is in response to McLaughlin’s plea to the court to intervene, proposes a new way forward — negotiation.

McLaughlin says that the Department of Administration now has more than 5,000 of her emails, that the release or withholding of those documents must be done on case-by-case basis evaluating them individually.

“Determining what documents are public records is necessarily fact-intensive and alone renders this case inappropriate for an original proceeding,” Knudsen said in the document. “McLaughlin has refused to negotiate a resolution with DOA, preferring instead the sanctuary of her bosses’ conflict of interest.”

However, email obtained by the Daily Montanan tell a different tale: When McLaughlin originally learned of the Legislature’s desire for her email, a flurry of correspondence took place between Giles and McLaughlin’s attorney, discussing what could be released and raising privacy concerns.

“This court should decline to entertain McLaughlin’s arguments that despite the plain wording of Article II, Section 9 and despite the warnings that judicial branch employees have no expectation of privacy in their email, she should nonetheless be able to deny public access to public records based on vague assertions of the hypothetical privacy interest of unnamed third parties,” the response to McLaughlin states.

Knudsen said that the fight over legislative subpoenas and email “prevents meaningful access to the court by the legislature to open good faith negotiations.”

The Attorney General proposes dismissing the complaint and working through an unspecified negotiation process.

“The only appropriate path forward for this court is to negotiate with the Legislature in good faith to produce responsive records while continuing to protect confidential information, if any exists, in the emails,” the Attorney General said.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.