Supreme Court says it won’t need to recuse itself in ‘districting’ case

By: - June 15, 2022 4:21 pm

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

A three-page opinion from the Montana Supreme Court might be summed up as, “See previous comment.”

Largely, a case that challenges whether state Supreme Court judges should be elected from districts, rather than the state at-large, has been tried and settled several times, including recently.

However, Montana Attorney General Austin Knudsen appealed a lower court’s ruling that reaffirmed that state law and the state constitution require the judges to be elected at-large, and he asked the entire court to recuse itself in a motion that was similar to one that sought thousands of emails from Montana courts administrator Beth McLaughlin.

Like that case, the state’s Supreme Court judges denied the request, saying that because any judge or lawyer could run for the state’s highest court, there would be no qualified judges because everyone would have a hypothetical conflict of interest.

The court’s order, released on Tuesday, was signed by all members of the court.

“As we noted … ‘the potential’ that a district judge called in to substitute also could decide to run for the Supreme Court meant that ‘no judge in this state – indeed, no otherwise qualified person with the ‘potential’ to run fun for Supreme Court justice  — could sit on the case,’ thereby invoking the Rule of Necessity,” the court’s opinion said. “That ‘potential’ also did not amount to the ‘direct, personal, substantial, and pecuniary’ interest requiring disqualification.”

In the appeal to the Supreme Court filed last month, the Attorney General’s office spent the bulk of the brief discussing why the justices should be recused, leading the court to note it allowed the office to file a brief that was nearly three times the standard 1,250-word limit. A much smaller portion of the brief was focused on merits of electing justices by district.

The attorney general’s briefing argues that incumbents have an almost unreal record of being re-elected, and by slimming the districts, it may make the court more competitive and more representative of constituents. Throughout the 2021 Legislative session and beyond, conservative state lawmakers and leaders have complained about what they perceive as a liberal, biased judiciary.

“Since 2002, 17 Supreme Court elections have featured an incumbent candidate. In those races, the incumbent has won 17 times,’” the brief said. “Even though district court judges can run for a Supreme Court seat, they have a far more remote interest in the method of election for Supreme Court justices.”

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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.