05/12/2021
OP 21-0173 Case Number: OP 21-0173
IN THE SUPREME COURT OF THE STATE OF MONTANA 2021 MT 120-1
BETH MCLAUGHLIN,
Petitioner,
v.
The MONTANA STATE LEGISLATURE, and the MONTANA DEPARTMENT OF ADMINISTRATION,
Respondents.
ORIGINAL PROCEEDING: Petition for Original Jurisdiction
COUNSEL OF RECORD:
For Petitioner:
Randy J. Cox, Boone Karlberg P.C., Missoula, Montana
For Respondent Montana State Legislature:
Austin Knudsen, Montana Attorney General, Kristin Hansen, Lieutenant General, Derek J. Oestreicher, General Counsel, Helena, Montana
For Respondent Montana Department of Administration:
Michael P. Manion, Department of Administration, Helena, Montana
Dale Schowengerdt, Crowley Fleck PLLP, Helena, Montana
Decided: May 12, 2021
Filed:
cir-641.—if __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion and Order of the Court.
¶1 Respondent, Montana State Legislature (Legislature), has filed in this original
proceeding a motion “for the immediate disqualification of all Justices” of the
Montana Supreme Court.1 Petitioner, Beth McLaughlin (McLaughlin), the Judicial
Branch’s Court Administrator, has responded and objects to the Legislature’s motion. To
best address the Legislature’s motion, some discussion of the procedural background and
underlying issues is necessary.
¶2 In an original proceeding before this Court filed March 17, 2021, Brown, et. al. v.
Gianforte, OP 21-0125, the Legislature, as an intervenor, and Respondent Governor
Greg Gianforte raised concerns about a Montana Judges Association (MJA) survey of its
members (poll) facilitated by McLaughlin regarding Senate Bill 140 (SB 140). At the time
of the poll, the Legislature was considering SB 140. SB 140, which has since been signed
into law, changes the way the Governor fills vacancies for judges and justices in Montana.
After learning of the MJA poll, the Legislature requested McLaughlin provide information
on the poll. McLaughlin provided the final tally of the poll but indicated some of the emails
from judges responding to the poll had been routinely deleted. On April 8, 2021, the
Legislature issued an investigative subpoena to the Department of Administration, which
administers the Judiciary’s computer system, seeking the production of “[a]ll emails and
1 Since the Legislature’s filing of the instant motion, the Court appointed District Court Judge Donald Harris to preside in place of Justice Jim Rice, who had recused himself. The Legislature has not indicated whether their disqualification request pertains to Judge Harris. However, for purposes of this ruling the Court will assume that it does. 2 attachments sent and received by Court Administrator Beth McLaughlin between
January 4, 2021 and April 8, 2021 . . .” and “[a]ny and all recoverable deleted e-mails sent
or received by Court Administrator Beth McLaughlin between January 4, 2021 and
April 8, 2021 . . . .” The legislative subpoena required production of the documents by
3 p.m. the next day, April 9; however, the Court was informed that the Department of
Administration began producing the documents immediately. In the subpoena, purportedly
issued by the Chair of the Senate Judiciary Committee, the Legislature did not provide a
reason or purpose for its request or otherwise state what it was investigating. The subpoena
was issued without notice to McLaughlin or to the Judicial Branch. When McLaughlin
learned of the investigative subpoena one day later, on April 9, several thousand emails
involving her communications with Montana’s judges and justices had been released to the
Legislature. It now appears there were more than 5,000 Judicial Branch e-mails disclosed
to the Legislature. The Legislature determined on its own that many of those e-mails were
not privileged, sensitive, or work related, and it released these judicial communications for
distribution to the press. In response to an emergency motion filed by McLaughlin, this
Court entered an order on April 11, 2021, quashing the subpoena until we could address
the scope and parameters of the Legislature’s subpoena power when privileges have been
asserted. Thereafter, McLaughlin, who was not a party or intervenor in OP 21-0125, filed
a Petition for Original Jurisdiction and Emergency Request to Quash/Enjoin Enforcement
of Legislative Subpoena on April 12, 2021, which began the instant proceeding.
¶3 Also, on April 12, 2021, the Court received a letter from Lieutenant General
Kristen Hansen, of the Montana Department of Justice, stating that she had been retained
3 by the legislative leadership to “represent the interests of the Montana State Legislature to
resolution [sic] of the ex parte Motion of Beth McLaughlin . . . .” In her letter, Hansen
wrote:
The Legislative power is broad. In fulfilling its constitutional role, the Legislature’s subpoena power is similarly broad. The questions the Legislature seeks to be informed on through the instant subpoena directly address whether members of the Judiciary and the Court Administrator have deleted public records and information in violation of state law and policy; whether the Court Administrator has performed tasks for the Montana Judges Association during taxpayer funded worktime in violation of state law and policy; and whether current policies and processes of the Judicial Standards Commission are sufficient to address the serious nature of polling members of the Judiciary to prejudge legislation and issues which have come and will come before the courts . . . .
The Legislature does not recognize this Court’s Order as binding and will not abide [by] it. The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary. The subpoena is valid and will be enforced.
In like regard, the Legislature, through its counsel, Derek J. Oestreicher, filed a Motion to
Dismiss stating the Montana Supreme Court “lacks jurisdiction to hinder the Legislature’s
power to investigate these matters of statewide importance,” and that this Court’s order
“will not bind the Legislature and will not be followed.” These representations from
counsel that the Court’s orders would not be followed were disruptive to the Court’s
functioning as a tribunal and the administration of justice, particularly because the Court
was dealing with the unrestrained and ongoing dissemination of thousands of
Judicial Branch e-mails.
4 ¶4 Two days later, on April 14, 2021, and during the pendency of the instant
proceeding, the Legislature issued a subpoena to each justice of the Montana Supreme
Court demanding that the justices appear before it on April 19, 2021, and produce:
(1) Any and all communications, results, or responses, related to any and all polls sent to members of the Judiciary by Court Administrator Beth McLaughlin between January 4, 2021 and April 14, 2021; including emails and attachments sent and received by your government e-mail account . . . as well as text messages, phone messages, and phone logs sent or received by your personal or work phones; and any notes or records of conferences of the Justices regarding the same. (2) Any and all emails or other communications between January 4, 2021 and April 14, 2021 regarding legislation pending before, or potentially pending before, the 2021 Montana Legislature; including emails and attachments sent and received by your government email account . . . as well as text messages, phone messages, and phone logs sent or received by your personal or work phones; and any notes or records of conferences of the Justices regarding the same. (3) Any and all emails or other communications between January 4, 2021 and April 14, 2021 regarding business conducted by the Montana Judges Association using state resources . . . .
The subpoena provided that: [t]his request pertains to the Legislature’s investigation into whether members of the Judiciary or employees of the Judicial Branch deleted public records and information in violation of state law and policy; and whether the current policies and processes of the Judicial Standards Commission are sufficient to address the serious nature of polling members of the Judiciary to prejudge legislation and issues which have come and will come before the courts for decision.
¶5 Also on April 14, 2021, Hansen sent e-mails with an attachment entitled
“PRESERVATION REQUEST” to all District Court judges, their staff members, and
employees or contracted employees of the MJA “who might have received emails from or
sent emails to Ms. McLaughlin” between January 4, 2021 and April 8, 2021. The letter
asked all recipients to segregate and hold “any emails, documents, notes, or other records”
5 sent to or received from McLaughlin and to “preserve all existing materials relevant to this
dispute . . . .” Hansen asked the recipients to suspend any deletion, overwriting or
destruction of such documents and that “[t]his hold overrides what might be your normal
retention policy so these documents and data should not be deleted even if otherwise
allowed.” Hansen stated that the Legislature had previously sought the information from
McLaughlin but “received an unsatisfactory response.”
¶6 On April 16, 2021, this Court entered its first order in these proceedings, which
continued the injunction against the subpoena issued to McLaughlin in OP 21-0125; set a
briefing schedule; and stayed enforcement of any subpoenas for judicial communications,
including those served on the Court on April 14, 2021, until the issues presented by the
Legislature’s subpoenas could be adjudicated during the course of due process. At the
time, and in light of the representations made by Hansen, Oestreicher, and the Legislature,
it was unclear whether the release of judicial e-mails to the Legislature was ongoing and
would continue indiscriminately. The Department of Administration has since retained
counsel who immediately assured this Court that it will abide by the Court’s orders and
would not release any more judicial communications unless directed by the Court to do so.
On April 19, 2021, every justice of the Montana Supreme Court appeared before the
Legislature and answered, to the extent permitted by the Montana Code of Judicial
Conduct, questions propounded by the Special Joint Select Committee on Judicial
Transparency and Accountability, a newly formed legislative committee to investigate
alleged misconduct in the Judicial Branch.
6 ¶7 In its Response to Petition for Original Jurisdiction, the Legislature provided its
purpose behind seeking McLaughlin’s records:
The purpose of the Select Committee is to investigate and determine whether legislation should be enacted concerning: the judicial branch’s public information and records retention protocols; members of the judicial branch improperly using government time and resources to lobby on behalf of a private entity; judges’ and justices’ statements on legislation creating judicial bias; and the courts’ conflict of interest in hearing these matters.
Important to the forthcoming discussion, the MJA includes Montana’s district judges and
justices.
¶8 Before addressing the law as it applies to the Legislature’s disqualification motion,
we make several observations about the motion. First, the Legislature argues that
“[t]his matter has arisen because evidence of judicial misconduct has come to public light”
and “[t]he Legislature is actively investigating that misconduct, and the judiciary is the
target of that investigation.” Presumably, this refers to the MJA poll and the
Judicial Branch permitting the poll to be conducted using state resources. However, this
Court has not yet determined whether the MJA polling of judges constitutes
“judicial misconduct” or an improper use of state resources; that issue implicates the scope
and legitimacy of the legislative subpoenas and is directly at issue in this case. The
Legislature concedes that the subpoenas issued to the justices raise “the same or similar
issues presented in McLaughlin’s Petition . . . .” This representation and others made in
the Legislature’s pleadings, letters, and subpoenas make abundantly clear that the
Legislature’s investigation is directed to the Judicial Branch as a whole, and, therefore,
includes every judicial officer employed in the Judicial Branch. Thus, the scope of the
7 Legislature’s authority when issuing subpoenas to judicial officers for judicial electronic
communications implicates the potential interests of every judge in Montana—
district judges, water court judges, worker’s compensation court judges, limited
jurisdiction judges, and justices.
¶9 Second, the Legislature argues the “Court should not presume to self-adjudicate the
limits of that investigation” and that we are “umpiring [our] own game” in a case in which
we “are not parties.” However, none of the justices are parties to this case or any other
pending litigation involving the scope of the Legislature’s subpoena power,2 and this case
does not involve adjudication of any subpoena issued to a member of this Court.
Nonetheless, the Legislature relies on § 3-1-803, MCA, to assert a justice must recuse
himself or herself in any proceeding “to which he is a party, or in which he is
interested . . .,” and argues due process does not allow a judge to be a judge in his own case
(emphasis added). There are no cases in which any of the justices sitting on this case are
parties; nor has there been established, with respect to any justice, any interest in the
outcome of this litigation, apart from each justice being a member of the Judicial Branch
and the MJA. However, that fact would disqualify every judge in Montana. Moreover, no
suggestion has been made that any justice presiding over these proceedings would be unfair
or partial in adjudicating the scope of legislative subpoena power in the context of
Judicial Branch communications. The Legislature’s unilateral act of issuing legislative
2 The exception is Justice Jim Rice, who filed an individual proceeding in district court challenging the legislative subpoena issued to him. As noted, Justice Rice has recused himself from this proceeding. 8 subpoenas to the justices after this litigation was commenced does nothing to impugn the
integrity, impartiality, and honesty in the justices serving as adjudicators. Once this issue
is decided, the Judicial Branch and its members will be able to adjudicate related issues
respecting legislative subpoenas in the district courts and on appeal. - ¶10 Third, Counsel for the Legislature argues this Court cannot preside over a case
involving the Court Administrator. It maintains that McLaughlin’s purported “efforts to
prevent disclosure of this Court’s records” equate to this Court being unable to maintain
its impartiality. However, Montana judges have in the past presided over cases where the
Court Administrator has been a party, without a conflict of interest. See State v. Berdahl,
2017 MT 26, 386 Mont. 281, 389 P.3d 254; Boe v. Court Adm’r for the Mont. Judicial
Branch of Pers. Plan & Policies, 2007 MT 7, 335 Mont. 228, 150 P.3d 927. In this case,
the Court is called upon to assess, for the first time, the appropriate scope of the legislative
subpoena power in Montana—not to judge the conduct of McLaughlin. Importantly, if the
Court were to adopt the Legislature’s argument, then Judicial Branch officers and
employees, as well as parties seeking relief from their actions, would be denied access to
justice, and their interests in having their rights vindicated would be frustrated in every
court in Montana. Accordingly, the Legislature’s argument runs afoul of Article II,
Section 16, of the Montana Constitution, which guarantees, as a fundamental right, that
“[c]ourts of justice shall be open to every person . . . and that no person should be deprived
of this full legal redress for injury incurred in employment . . . .” The Legislature’s position
that it will be the arbiter of the scope and purpose of its own subpoenas effectively
abrogates Article II, Section 16.
9 ¶11 Fourth, conspicuously absent from the Legislature’s motion is any specific
allegation or assertion of actual bias on the part of a justice. The Legislature has not alleged
that a member of this Court has an actual bias, prejudice, or is otherwise unable to
adjudicate these proceedings fairly and impartially. The Legislature’s unilateral attempt to
manufacture a conflict by issuing subpoenas to the entire Montana Supreme Court must be
seen for what it is. Much of the same information the Legislature subpoenaed from the
justices after this case was filed is being requested in the subpoena issued to McLaughlin;
the Legislature has conceded this point. Thus, once the issues determining purpose and
scope of legislative subpoena authority are adjudicated, the Legislature can acquire those
documents through McLaughlin’s subpoena. 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. Importantly, each justice has made abundantly clear, on
several occasions, that they did not participate in the activity that is the primary subject of
the Legislature’s investigation—the poll conducted by the MJA.
¶12 This is not the first time legislators have moved to disqualify justices in cases where
the Court will decide the constitutionality of their legislation or actions. In Reichert v.
State, 2012 MT 111, 365 Mont. 92, 278 P.3d 455, voters brought an action against the
Montana Secretary of State seeking to have Legislative Referendum 119, which addressed
statutory changes regarding the election of justices to the Montana Supreme Court,
declared constitutionally defective and to enjoin the State from having it placed on the
ballot. Seven legislators, who appeared as amici curiae, argued that non-retiring justices
10 of the Court should recuse themselves under the Due Process Clause and the Montana Code
of Judicial Conduct, contending that they have an interest in the outcome of the case. As
does the Legislature here, legislators in Reichert relied on Caperton v. A.T. Massey
Coal Co., 556 U.S. 868 (2009), to argue that the non-retiring justices had an interest in the
outcome of the case, requiring their disqualification. We concluded that the justices’
interest in being reelected by statewide election did not arise to the level of a constitutional
due process violation as in Caperton. We noted that “the interest identified by Legislators
as necessitating recusal is not exclusive to the four not-presently-retiring justices.”
Reichert, ¶ 37. We explained in the event of a justices’ disqualification, a district judge
would be appointed. “A district judge, however, has ‘the potential’ to run for a seat on this
Court in the future, ‘could possibly’ be prevented by LR-119 from getting elected, and thus
(under Legislator’s theory) has an ‘interest’ in the outcome of the case.” Reichert, ¶ 37.
Therefore, “[u]nder a logical extension of Legislator’s argument, no judge in this state—
indeed, no otherwise qualified person with ‘the potential’ to run for Supreme Court
justice—could sit on this case.” Reichert, ¶ 37. We applied the Rule of Necessity to
conclude none of the justices would be disqualified. Reichert, ¶ 37.
¶13 In the case of disqualification generally, when an individual judge is disqualified
from a particular case by reason of §§ 3-1-803 and 3-1-805, MCA, the disqualified judge
simply steps down and allows the normal administrative process of the court to assign the
11 case to another judge not disqualified.3 In the highly unusual circumstances of this case,
all Montana judges have an interest in the outcome of this case since it involves an
investigation into alleged judicial misconduct of the Judicial Branch and the polling
procedures of an entity in which every judge and justice in Montana is a member and from
which they receive e-mails. It was precisely considerations of this kind that gave rise to
the Rule of Necessity, a well-settled principle at common law that had its genesis at least
five and a half centuries ago. Its earliest invocation was in 1430, when it was held that the
Chancellor of Oxford could act as judge of a case in which he was a party when there was
no provision for appointment of another judge. Rolle’s Abridgment summarized this
holding as follows: “[i]f an action is sued in the bench against all the Judges there, then by
necessity they shall be their own Judges.” 2 H. Rolle, An Abridgment of Many Cases and
Resolutions at Common Law 93 (1668) (translation).
¶14 When the matter to be decided affects the interests of every judge qualified to hear
it, the Rule of Necessity applies without resort to further factual development.
State ex rel. Hash v. McGraw, 376 S.E.2d 634, 639 (W. Va. 1988). The theory on which
the Rule rests when such circumstances arise is that “where all are disqualified, none are
disqualified.” Ignacio v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160,
1165 (9th Cir. 2006) (quoting Pilla v. Am. Bar Ass’n., 542 F.2d 56, 59 (8th Cir. 1976))
(applying the Rule because a litigant sued all the judges in a federal circuit); see Bd. of Trs.
3 Section 3-1-803, MCA, applies to all judges, including justices, in Montana. In contrast, § 3-1-805, MCA, which provides a procedure for adjudicating challenges for cause does not apply to justices. 12 v. Hill, 472 N.E.2d 204, 206 (Ind. 1985) (applying the Rule to consider a challenge to a
statutory amendment affecting judicial retirement benefits); see also Weinstock v. Holden,
995 S.W.2d 408, 410 (Mo. 1999) (applying the rule to consider a resolution affecting
judicial pay). Courts ordinarily invoke the Rule of Necessity in such circumstances
because disqualifying every judge with an interest to be decided would leave the parties
with no court in which to resolve the dispute. The common law tradition has
“long regarded the absence of an appropriate forum in which to resolve a legitimate case
to be intolerable.” Hill, 472 N.E.2d at 206. The Rule of Necessity thus reflects the
longstanding principle that to deny an individual access to courts for vindication of his or
her rights constitutes a far more egregious wrong than to permit a judge to hear a matter in
which he or she has some interest. See Weinstock, 995 S.W.2d at 410. Thus, implicit in
the Rule is the concept of the absolute duty of judges to hear and decide cases within their
jurisdiction and that “actual disqualification of a member of a court of last resort will not
excuse such member from performing his official duty if failure to do so would result in
denial of a litigant’s constitutional right to have a question, properly presented to such
court, adjudicated.” United States v. Wills, 449 U.S. 200, 214 (1980) (quoting
State ex rel. Mitchell v. Sage Stores Co., 143 P.2d 652, 656 (Kan. 1943)).
¶15 Here, the Legislature’s investigation into alleged misconduct of the Judicial Branch
and the polling practices of the MJA is an investigation of every judge of this State.
Because of the expansive and overarching nature of the Legislature’s investigation into the
Judicial Branch of government, no Montana judge is free of a disqualifying interest and,
thus, this Court is required to invoke the Rule of Necessity; where “all judges are
13 disqualified, none are disqualified.” Ignacio, 453 F.3d at 1165. In reaching this
conclusion, we are mindful of Montana Code of Judicial Conduct 2.7, which
states: “A judge shall hear and decide matters assigned to the judge, except when
disqualification is required by Rule 2.12 or other law.” The comment to this Rule explains:
Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.
M. C. Jud. Cond. 2.7 cmt [1]. Were we to grant the Legislature’s request to disqualify
every member of Montana’s highest court on an issue involving co-equal branches of
government and principles of separation of powers, the Court’s ability to fulfill its
constitutional duties to adjudicate difficult and controversial matters would be
compromised. See Larson v. State, 2019 MT 28, ¶ 42, 394 Mont. 167, 434 P.3d 241 (noting
exclusive constitutional duty and authority of this Court to “adjudicate the nature, meaning,
and extent of applicable constitutional, statutory, and common law and to render
appropriate judgments thereon . . . .”) (citing Mont. Const. arts. III, § 1, and VII, § 1,
inter alia; Best v. City of Billings Police Dep’t, 2000 MT 97, ¶ 16, 299 Mont. 247,
999 P.2d 334 (among the three coordinate branches of a constitutional government “it is
the province and duty of the judiciary ‘to say what the law is’”) (citing Marbury v.
Madison, 5 U.S. 137, 177 (1803) (the constitution is the “fundamental and paramount law”
and the fundamental “theory of every such [constitutional] government” is “that an act of
14 the legislature, repugnant to the constitution, is void. . . . It is emphatically the province
and duty of the judicial department to say what the law is” and “of necessity [to] expound
and interpret that rule” to resolve any conflict of law)).
¶16 Finally, and perhaps most importantly, we would be remiss in our analysis of the
Legislature’s disqualification request, if we did not consider the context in which it has
been made. The Legislature has unilaterally attempted to create a disqualifying conflict
for every duly constituted and elected member of this Court, during the pendency of a
proceeding before the Court, by issuing a subpoena to every presiding justice in the case
which is nearly identical to the subject of the litigation—McLaughlin’s subpoena. It is
well recognized that a party’s unilateral acts personally attacking or suing the judge for
acts taken in his or her judicial capacity do not create a proper basis for recusal. Recusal
under such circumstances would permit a party to avoid a particular judge simply by
attacking or suing him. See United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986);
see also United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977); see also
United States v. Whitesel, 543 F.2d 1176, 1181 (6th Cir. 1976). Here, the Legislature itself
has created the conflict by issuing a subpoena to each justice during a pending proceeding
involving the same issues raised in a legislative subpoena. The Legislature’s unilateral act
of issuing subpoenas to the justices during the pendency of this case is not ground for
recusal of every member of this Court. A judge is required to act in a manner that promotes
“public confidence in the independence, integrity, and impartiality of the judiciary, and
shall avoid impropriety and the appearance of impropriety.” M. C. Jud. Cond. 1.2. Were
the Court to succumb to the Legislature’s request and evade our responsibilities and
15 obligations as a Court, we are convinced that public confidence in our integrity, honesty,
leadership, and ability to function as the highest court of this State would be compromised.
¶17 IT IS HEREBY ORDERED that the Legislature’s Motion to Disqualify the justices
of the Court is DENIED.
DATED this 12th day of May, 2021.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ BETH BAKER /S/ DIRK M. SANDEFUR /S/ DONALD HARRIS Hon. Donald Harris, District Judge, sitting by designation