Legislature again moves for Supreme Court to recuse itself in McLaughlin case

Legal counsel for the Montana Legislature on Wednesday once again asked the state Supreme Court to disqualify itself from hearing a case stemming from a series of legislative subpoenas for communications and other records from members of the court.

The court on May 12 had previously denied a motion from the Legislature and its counsel, Attorney General Austin Knudsen, to the same effect, essentially accusing the Legislature of manufacturing disqualifying conflicts and stating that the blanket recusal would, among other implications, go against the doctrine of necessity, a legal philosophy under which a judge who might otherwise have a personal interest in a case can still hear it if no other judges are available. The underlying case — which involves a legislative probe into the judicial system and its lobbying practices — would disqualify essentially any judge if the court were to establish that precedent, Justice Laurie McKinnon wrote then.

But the Legislature wasn’t satisfied with that reasoning, writing in its May 26 filing that this is plainly an “interbranch conflict” from which the justice system is trying to shield itself.

“The lawsuit came second and is now being used by this Court as an off-ramp from that interbranch conflict,” wrote Deputy Attorney General Kristin Hansen in the Wednesday motion. “This cannot be, however, for the simple and timeless reason that the Court may not act as a judge in its ‘own cause.'”

This case, McLaughlin v. Montana Legislature, stems from a legislative subpoena issued to Supreme Court Administrator Beth McLaughlin for documents and communications related to legislation that could come before the court and the issuance of polls about bills that would affect court administration to member judges of the Montana Judges Association, which the Legislature has argued amounts to the court “pre-judging” its proposals.

The state Department of Administration fulfilled part of the records request before the court issued an enjoinder until it could hear legal arguments on the extent of the Legislature’s subpoena power, with an attorney for McLaughlin saying that the records requested by the Legislature could contain private information. The Legislature has also issued subpoenas to the justices themselves, though to no avail.

In its previous request, the Legislature said it could not possibly get a “fair and impartial trial” in the case due to the context of the litigation. McLaughlin, a court employee, has too close a relationship to the justices for that to be possible, the Legislature’s attorneys wrote.

The May 26 filing rehashes that argument and responds to the court’s May 12 ruling, launching a few barbs at the justices along the way.

“The Court deigns that this is a dispute between two ‘co-equal branches of government,'” the motion reads. “It nevertheless has designated itself the arbiter of this dispute and asserted that the Legislature will be bound by whatever decision it makes regarding the legislative subpoena (to it). Perhaps ‘co-equal’ has more than one meaning.”