Petition for Writ of Certiorari — The Montana State Legislature, et al., Petitioners v. Beth McLaughlin

No. ________

In the Supreme Court of the United States

THE MONTANA STATE LEGISLATURE, ET AL.,

Petitioners,

v.

BETH MCLAUGHLIN,

Respondent.

On Petition For A Writ Of Certiorari

To The Montana Supreme Court

PETITION FOR A WRIT OF CERTIORARI

AUSTIN KNUDSEN

Attorney General

KRISTIN HANSEN

Lieutenant General

DEREK OESTREICHER

General Counsel

DAVID M.S. DEWHIRST

Solicitor General

*Counsel of Record

BRENT MEAD

Assistant Solicitor

General

MONTANA DEPARTMENT

OF JUSTICE

215 N Sanders

Helena, MT 59602

David.Dewhirst@mt.gov

(406) 444-2026

Counsel for Petitioners

i

QUESTION PRESENTED

When emails surfaced showing numerous Montana judges engaged in unethical and prejudicial behavior, the Montana State Legislature began investigating and ultimately issued subpoenas to the Court

Administrator and the Justices of the Montana Supreme Court. The Court Administrator sued in the

Montana Supreme Court to quash the subpoenas.

After a flurry of procedural irregularities, the Montana Supreme Court quashed the legislative subpoenas—including those issued to themselves. The Legislature moved to disqualify the Justices on due process grounds. The court denied that motion, and

then issued a wide-ranging opinion clearing itself of

any wrongdoing and eviscerating the Legislature’s

investigative powers.

The question presented is:

Whether the refusal by the Justices of the Montana Supreme Court to recuse from a case in which

they harbored direct, substantial, and admittedly

disqualifying interests violates this Court’s rule under the Due Process Clause of the Fourteenth

Amendment that no man may be a judge in his own

cause.

ii

PARTIES TO THE PROCEEDING

Petitioners are the Montana State Legislature;

Representative Wylie Galt, Speaker of the Montana

House of Representatives; Senator Mark Blasdel,

President of the Montana Senate; Senator Keith Regier, Chairman of the Senate Judiciary Standing

Committee.

Respondent is Beth McLaughlin, Montana’s Court

Administrator. She is appointed by the Montana Supreme Court and holds her position at the court’s

pleasure. See MCA §3-1-701.

The Montana Department of Administration—an

executive branch agency organized under the Governor—was a nominal respondent below, but the Department is not participating in this petition.

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is directly related to the

following proceedings in the Montana Supreme

Court:

McLaughlin v. Montana State Legislature

(McLaughlin I), OP 21-0173, 489 P.3d 482 (Mont.

2021).

McLaughlin v. Montana State Legislature

(McLaughlin II), OP 21-0173, 493 P.3d 980 (Mont.

2021).

Brown, et al. v. Gianforte, OP 21-0125, 488 P.3d

548 (Mont. 2021).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ......................................xii

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

PETITION FOR A WRIT OF CERTIORARI.............. 1

STATEMENT OF THE CASE .................................... 4

REASONS FOR GRANTING THE PETITION........ 18

I.

The Montana Supreme Court’s decision to

judge its own case conflicts with this Court’s

due process precedents ....................................... 18

A. The Fourteenth Amendment’s Due Process Clause guarantees the Montana

Legislature’s right to a fair and impartial state tribunal.......................................... 19

B. The Court violated due process by assuming jurisdiction and ruling in a case

over which its members had direct institutional and personal interests .................... 21

iv

C. The McLaughlin Justices violated due

process by refusing to withdraw where

their interests created the appearance of

bias and a probability of unfairness ............ 25

II. Montana’s Supreme Court Justices improperly invoked the Rule of Necessity to justify

retaining jurisdiction in a case where they

had disqualifying conflicts .................................. 28

CONCLUSION .......................................................... 31

APPENDIX

Appendix A

Order in the Supreme Court of the State of Montana

(April 16, 2021) ................................................... App. 1

Appendix B

Order in the Supreme Court of the State of Montana

(May 5, 2021) .................................................... App. 10

Appendix C

Opinion and Order in the Supreme Court of the State

of Montana

(May 12, 2021) .................................................. App. 12

Appendix D

Order in the Supreme Court of the State of Montana

(June 29, 2021) ................................................. App. 31

v

Appendix E

Order in the Supreme Court of the State of Montana

(July 14, 2021) .................................................. App. 40

Appendix F

Opinion and Order in the Supreme Court of the State

of Montana

(July 14, 2021) .................................................. App. 42

Appendix G

Order in the Supreme Court of the State of Montana

(September 7, 2021) ........................................ App. 104

Appendix H

Order in the Supreme Court of the State of Montana

(March 24, 2021) ............................................. App. 108

Appendix I

Notice of Recusal in the Supreme Court of the State

of Montana

(April 2, 2021) ................................................. App. 110

Appendix J

Order in the Supreme Court of the State of Montana

(April 7, 2021) ................................................. App. 111

Appendix K

Temporary Order in the Supreme Court of the State

of Montana

(April 11, 2021) ............................................... App. 115

vi

Appendix L

Order in the Supreme Court of the State of Montana

(April 14, 2021) ............................................... App. 120

Appendix M

Order in the Supreme Court of the State of Montana

(April 16, 2021) ............................................... App. 123

Appendix N

Order in the Supreme Court of the State of Montana

(April 27, 2021) ............................................... App. 132

Appendix O

Opinion in the Supreme Court of the State of Montana

(June 10, 2021) ............................................... App. 135

Appendix P

Motion to Dismiss in the Supreme Court of the State

of Montana

(April 14, 2021) ............................................... App. 192

Appendix Q

Response to Petition for Original Jurisdiction in the

Supreme Court of the State of Montana

(April 30, 2021) ............................................... App. 203

Appendix R

Motion to Disqualify Justices in the Supreme Court

in the State of Montana

(April 30, 2021) ............................................... App. 222

vii

Appendix S

The Montana State Legislature’s Petition for Rehearing Regarding the Court’s May 12 Order in the

Supreme Court of the State of Montana

(May 26, 2021) ................................................ App. 230

Appendix T

The Montana State Legislature’s Petition for Rehearing in the Supreme Court of the State of Montana

(August 11, 2021)............................................ App. 243

Appendix U

Petition for Original Jurisdiction in the Supreme

Court of the State of Montana

(March 17, 2021) ............................................. App. 265

Appendix V

Declaration of Derek J. Oestreicher in the Supreme

Court of the State of Montana

(April 1, 2021) ................................................. App. 288

Appendix W

Motion to Disqualify Judge Kurt Krueger and For

Other Miscellaneous Relief in the Supreme Court

of the State of Montana

(April 1, 2021) ................................................. App. 342

Appendix X

Montana State Legislature Subpoena

(April 11, 2021) ............................................... App. 356

viii

Appendix Y

Intervenor Beth McLaughlin’s Emergency Motion to

Quash and Enjoin Legislative Subpoena Duces Tecum

(April 11, 2021) ............................................... App. 358

Appendix Z

Letter from State of Montana Department of Justice

(April 12, 2021) ............................................... App. 379

Appendix AA

Motion to Strike and Vacate in the Supreme Court of

the State of Montana

(April 13, 2021) ............................................... App. 382

Appendix BB

Montana State Legislature’s Summary Response to

Petition in the Supreme Court of the State of Montana

(April 14, 2021) ............................................... App. 394

Appendix CC

Emergency Motion to Quash Revised Legislative

Subpoena in the Supreme Court of the State of

Montana

(April 15, 2021) ............................................... App. 418

ix

Appendix DD

Montana State Legislature’s Response in Opposition

to Non-Party’s Second Emergency Motion to

Quash in the Supreme Court of the State of Montana

(April 16, 2021) ............................................... App. 429

Appendix EE

Updated Motion to Strike in the Supreme Court of

the State of Montana

(April 16, 2021) ............................................... App. 439

Appendix FF

Letter from State of Montana Department of Justice

(April 18, 2021) ............................................... App. 452

Appendix GG

Petition for Original Jurisdiction and Emergency Request to Quash/Enjoin Enforcement of Legislative

Subpoena in the Supreme Court of the State of

Montana

(April 12, 2021) ............................................... App. 455

Appendix HH

Exhibit A – Montana State Legislature Subpoena

(April 12, 2021) ............................................... App. 490

Appendix II

Exhibit B – Declaration of Beth McLaughlin in the

Supreme Court of the State of Montana

(April 12, 2021) ............................................... App. 492

x

Appendix JJ

Emergency Motion to Quash Revised Legislative

Subpoena in the Supreme Court of the State of

Montana

(April 15, 2021) ............................................... App. 497

Appendix KK

Letter from State of Montana Department of Justice

(May 19, 2021) ................................................ App. 509

Appendix LL

The Montana State Legislature’s Motion to Dismiss

as Moot in the Supreme Court of the State of Montana

(June 22, 2021) ............................................... App. 513

Appendix MM

Appendix A – Letter to Justice Baker from the State

of Montana Department of Justice

(June 22, 2021) ............................................... App. 518

Appendix NN

Preservation Request from the State of Montana Department of Justice

(April 14, 2021) ............................................... App. 528

Appendix OO

Initial Report of Judicial Accountability and Transparency – Initial Report to the 67th Montana Legislature

(May 2021) ...................................................... App. 531

xi

Appendix PP

Exhibits A and B – Montana State Legislature’s Subpoenas

(April 14, 2021) ............................................... App. 577

Appendix QQ

Exhibits E and G – Letter from the Supreme Court of

Montana and Order in the Supreme Court of the

State of Montana

(April 16, 2021 and April 7, 2021) ................. App. 627

Appendix RR

Exhibit K – Emails

(April 7, 2021) ................................................. App. 638

xii

TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Lavoie,

475 U.S. 813 (1986) ................................................ 26

Bolin v. Story,

225 F.3d 1234 (11th Cir. 2000) .............................. 30

Bracy v. Gramley,

520 U.S. 899 (1997) .................................... 20, 21, 22

Brown v. Gianforte,

OP 21-0125, 488 P.3d 548 (Mont. 2021)

................................................................ ii, 4, 5, 9, 27

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ........................................ passim

Chambers v. Florida,

309 U.S. 227 (1940) ................................................ 20

Commonwealth Coatings Corp. v. Cont'l Cas. Co.,

393 U.S. 145 (1968) .................................................. 3

Haase v. Countrywide Home Loans, Inc.,

838 F.3d 665 (5th Cir. 2016) .................................. 30

Hernandez v. Bd. of County Comm'rs,

189 P.3d 638 (Mont. 2008) ..................................... 24

xiii

Ignacio v. Judges of the United States Court of

Appeals for the Ninth Circuit,

453 F.3d 1160 (2006).............................................. 30

In re Murchison,

349 U.S. 133 (1955) ........................ 18, 21, 25, 26, 27

Johnson v. Mississippi,

403 U.S. 212 (1971) ................................................ 26

Mayberry v. Pennsylvania,

400 U.S. 455 (1971) .......................................... 26, 27

McLaughlin v. Montana State Legislature

(McLaughlin I),

OP 21-0173, 489 P.3d 482 (Mont. 2021)........ passim

McLaughlin v. Montana State Legislature

(McLaughlin II),

OP 21-0173, 493 P.3d 980 (Mont. 2021)

................................................................ ii, 16, 24, 27

Mistretta v. United States,

488 U.S. 361, 407, 109 S. Ct. 647,

102 L. Ed. 2d 714 (1989) ........................................ 25

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ................................................ 20

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................................ 20

xiv

Switzer v. Berry,

198 F.3d 1255 (10th Cir. 2000) .............................. 30

Tapia-Ortiz v. Winter et al.,

185 F.3d 8 (2d Cir. 1999) ....................................... 30

Tumey v. Ohio,

273 U.S. 510 (1927) .......................................... 22, 26

United States v. Will,

449 U.S. 200 (1980) .......................................... 28, 29

Walker v. Birmingham,

388 U.S. 307 (1967) ............................................ 3, 27

Williams v. Pennsylvania,

136 S. Ct. 1899 (2016) ................................ 19, 23, 25

Withrow v. Larkin,

421 U.S. 35 (1975) ............................................ 21, 26

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................................ 29

Constitution and Statutes

U.S. Const. amend. XIV .............................................. 1

MONT. CONST. art VII ................................................ 28

28 U.S.C. § 1257(a) ...................................................... 1

xv

MCA §2-6-1002(13) ...................................................... 7

MCA §3-1-701 ............................................................. ii

MCA §3-1-702(10) ...................................................... 23

MCA §5-5-101 .............................................................. 7

MCA §19-5-103(1)(a)-(b) ............................................ 28

Other Authorities

FEDERALIST No. 10 (R. Scigliano ed. 2000) (Madison). ...................................................................... 21

THE FEDERALIST No. 51 (R. Scigliano ed. 2000)

(Madison) .................................................................. 3

1

OPINIONS BELOW

The opinion of the Montana Supreme Court is reported at 493 P.3d 980. See App.42–103. The Montana Supreme Court’s order assuming jurisdiction is

not reported but is available at 2021 WL 1526432.

See App.1–9. The Montana Supreme Court’s order

denying the State’s motion to disqualify the justices

is reported at 489 P.3d 482. See App.12–30.

JURISDICTION

The Montana Supreme Court denied rehearing on

September 7, 2021. Petitioners invoke this Court’s

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the U.S. Constitution provides, in the relevant part:

No State shall … deprive any person of

life, liberty, or property, without due

process of law ….

U.S. Const. amend. XIV, § 1.

PETITION FOR A WRIT OF CERTIORARI

For some years now, Montana’s state judges have

shared lengthy email chains on government email

servers where they opine on the legality, prudence, or

agreeability of proposed legislation—much of which

is sure to be challenged in their courts. Learning of

this, the Montana State Legislature launched an investigation and ultimately subpoenaed the emails of

Beth McLaughlin, the Court Administrator, who facilitated those email discussions. More records were

disclosed that revealed more inappropriate conduct.

2

So McLaughlin responded by filing an emergency

motion to quash the subpoena in a Montana Supreme

Court case to which neither she nor the Legislature

were parties. Despite the jurisdictional obstacles, the

Court granted her motion.

Days later, McLaughlin filed a new original action

against the Legislature, challenging the limits of the

Legislature’s subpoena power. The Legislature issued more subpoenas—a renewed version to

McLaughlin and seven more to each individual Supreme Court Justice. And in that new case, the Justices quashed all the subpoenas—including the ones

issued to them.

Those actions justified the Legislature’s concerns

from the beginning: its view that settling this dispute

in the courts is improper because the state judiciary

is itself a disputant. The Supreme Court should have

accepted the repeated invitations to resolve their differences via negotiation and accommodation. But the

Justices refused to negotiate on the ground that it

would be inappropriate to discuss matters relating to

a case pending before them—a case involving their

appointee who was shielding their improper communications over which they were accepting jurisdiction.

So the Legislature moved to disqualify each Justice, noting that both institutional and personal conflicts would prevent the Justices from rendering fair

and equal justice. The Court refused. The Legislature asked again to no avail. Instead, the Court issued an opinion eviscerating the Legislature’s investigative powers.

Judicial self-dealing on this scale might be unprecedented in the Nation’s history. It violates the

3

core due process tenet that “no man can be judge in

his own case.” Walker v. Birmingham, 388 U.S. 307,

320 (1967). “[A]ny tribunal permitted by law to try

cases and controversies not only must be unbiased

but also must avoid even the appearance of bias.”

Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393

U.S. 145, 150 (1968). Fundamentally, due process

protections recognize the frailties of human nature.

Judges—like everyone else—aren’t angels. See generally THE FEDERALIST No. 51, p. 331 (R. Scigliano ed.

2000) (Madison). Due process guards against the

perilous proclivities of human power that would deprive parties of the substantial justice Americans expect from their judges. For our system to endure,

parties must be guaranteed a fair shake in court.

The Montana Supreme Court nevertheless believes itself unbound by these strictures. Below, the

Montana Legislature was dragooned into court under

dubious circumstances. Once it arrived, though, it

had the fundamental right to due process—to adjudication by judges free from disqualifying interests.

Instead, the Montana Supreme Court trounced nearly every principle of due process this Court has ever

enunciated. But due process rules ensure that no

party is left to the gentle mercies of a judge he’s

fighting against—particularly when the dispute arises from the judge’s alleged misconduct.

This Court should grant the petition and reaffirm

that due process forbids even the Justices of the

Montana Supreme Court to be the judges in their

own case.

4

STATEMENT OF THE CASE

1. The underlying dispute here arises from a statutory change to the way Montana’s Governor fills

mid-term judicial vacancies. For decades, Montana’s

Judicial Nomination Commission vetted candidates

and recommended names to the Governor when midterm judicial vacancies arose. This year, however,

the Montana State Legislature introduced Senate

Bill 140, which abolished the Commission and allowed the Governor—with public input—to make direct judicial appointments. Among those who unsuccessfully lobbied against the bill was Montana’s Chief

Justice, Mike McGrath. On March 16, 2021, the

Governor signed SB 140 into law. One day later,

challengers filed suit directly in the Montana Supreme Court to declare it unconstitutional. App.265–

87; Brown v. Gianforte, OP 21-0125 (Mont. 2021).

Due to his public lobbying, the Chief Justice

recused and selected District Court Judge Kurt

Krueger to hear the case in his stead. App.108, 561

Per court rules, Associate Justice James Rice was

appointed Acting Chief Justice for the Brown case.

In a rare move, the court accepted original jurisdiction, and the parties began preparing their briefs.

But Brown was interrupted when—on March 30,

2021—emails publicly surfaced that revealed a troubling pattern of judicial misbehavior. Here’s the story.

On January 29, 2021—when the Legislature was

still considering SB 140—Court Administrator Beth

McLaughlin emailed every Montana Supreme Court

Justice and every Montana district court judge—that

is, every Montana state judge (since Montana has no

5

intermediate court of appeals)—using government

email accounts, asking that they “review and take a

position on” SB 140. She apologized for doing this

“again.” App.293. The email included a click-poll, to

which many state judges responded. The Court never disclosed which judges or justices voted in the poll.

App.111–114. Even so, some judges’ individual views

became public when they chimed in on the long chain

of “reply-alls.” App.288–341. Every single judge who

sounded off in writing opposed SB 140. Many simply

declared their opposition. Others offered more fulsome explanations. Still others went further, explicitly stating their view that SB 140 was unconstitutional. App.326–27.

Those communications all violate Rule 2.11 of the

Montana Code of Judicial Conduct, which prohibits

judges from making public or nonpublic statements

that would prejudice an impending case. And because Administrator McLaughlin emailed every judge

in Montana, every judge in Montana received the entire, prejudicial correspondence from their colleagues.

Judge Krueger, the Chief Justice’s replacement in

Brown, specifically offered his views: “I am also adamantly oppose [sic] this bill.” App.332.

Learning this, the State quickly moved in

Brown—on due process and ethics grounds—to disqualify Judge Krueger and any other judicial officers

who took a position on SB 140 before it was enacted.

App.342–55. Judge Krueger recused within hours;

the Montana Supreme Court followed soon after with

an order denying that any Supreme Court Justice

had participated in the poll or inappropriate corre-

6

spondence. App.111–14. 1 It disclosed that 37 judicial

officers had participated in the click-poll but declined

to identify the participants.

2. In response, the Legislature opened an investigation to learn the extent of the judiciary’s prejudicial behavior—and whether statutory changes could

put an end to it. So on April 2, 2021, the Legislature

requested that Administrator McLaughlin produce

all public records in her possession related to the SB

140 poll she facilitated.

App.535. McLaughlin

agreed to produce the public records by April 9, 2021.

App.535. She responded a day early, on April 8, but

with only two emails.

She explained: “Judicial

Branch policy does not require retention of these

ministerial-type e-mails.” App.638. Later on April 8,

the Legislature asked McLaughlin to provide the judicial branch record retention policy and asked

McLaughlin if she deleted records.

App.642.

McLaughlin sent an immediate response, admitting

that she collected the poll results “as an administrative courtesy to the judges” and—apologizing for

“sloppiness”—that she didn’t retain the emails.

App.641. Sensing the unsatisfactory nature of her

response, McLaughlin offered, “the Judicial Branch

1 During an April 19 hearing of the Montana Legislature’s Se-

lect Committee on Judicial Accountability and Transparency,

Chief Justice McGrath admitted that he directed the appointment of Judge Krueger, even though Acting Chief Justice Rice

signed the appointment order: “I contacted Judge Krueger to sit

in my place. I didn’t ask him if he’d participated in any poll. I

forgot there was a poll. Didn’t even consider that. I just asked

him if he would be available to sit in that case, and he said he

would. That was the extent of our discussion.” App.561. But

both McGrath and Rice received Krueger’s “adamantly oppose”

email, so both should have known better.

7

should consider policy changes to provide specifics

around retention of e-mail and other administrative

documents.” App.641. 2

Learning that the judiciary failed to retain these

inappropriate emails (and perhaps others), Senate

Judiciary Chairman Keith Regier on April 8, 2021,

issued legislative subpoenas to the Director of the

Department of Administration (“DOA”) for McLaughlin’s emails during the 2021 Legislative session.

App.356–57. The hope was that DOA’s email archives would still house copies of emails McLaughlin

had not preserved. App.535. Chairman Regier’s

subpoena was issued under M.C.A. § 5-5-101, et seq.,

which, contemplates the Legislature’s power to compel testimony and the production of documents.

App.357. The Chairman’s subpoena importantly “exclude[d] any emails and attachments related to decisions made by the justices in disposition of final opinion.” App.357. On Friday, April 9, 2021, DOA partially complied with the subpoena, providing a 2,450page installment of documents that showed more inappropriate emails related to SB 140 and other proposed legislation. App.463, 536. 3

2 These emails are clearly “public records” by law, see MCA, § 2-

6-1002(13), and should have been retained for at least three

years under applicable policy. App.566–67.

3 The Montana Judges Association (“MJA”), a Montana nonprofit organization, appears throughout the e-mails. App.544–66.

Its membership includes all of Montana’s judicial officers.

App.545. According to its incorporation papers, the MJA exists

to provide education services to the Montana Judiciary.

App.628. But the emails show that it also engaged in extensive

lobbying and facilitated the illicit communications that caught

the Legislature’s attention. App.544–66. The Legislature took

8

These newer emails validated and deepened the

Legislature’s well-founded concerns. On March 12,

2021, for example, McLaughlin sent Chief Justice

McGrath, Justice Jim Shea, and Judge Kreuger an

email entitled, “thought you might enjoy this.”

App.562. In it, she linked to an article that levied ad

hominem attacks against legislators who supported a

judicial reform bill. App.562. On March 24, 2021,

Chief Justice McGrath emailed McLaughlin, Judge

Menahan, and Judge Spaulding opining that “[o]f

course the problem here [with a proposed judicial reform bill] is it allows a citizen’s commission to discipline or remove judges. Not clear who appoints them

but God forbid they put any judges on it or more than

one atty. Then there is the problem that it would be

entirely inconsistent with other provisions of the constitution….” App.565–66. Not content to leave it at

that, Chief Justice McGrath followed-up with, “[j]ust

noticed the new name will be ‘The Judicial Inquiry

Commission’. Think this straight out of the book

‘Where Democracies Go To Die.’” App.566. On

March 30, 2021, lobbyist Bruce Spencer emailed

Chief Justice McGrath, Judge Menahan, and

McLaughlin, stating another bill—HB 380—was

“[o]ne more for the great unconstitutional void.”

App.563. After another bill failed to pass, Chief Justice McGrath, using his personal email, ebulliently

proclaimed: “This could not have ended any better.

Great effort. Thanks again for your hard work these

last few months. What a challenge this session has

special interest in the amount of private lobbying McLaughlin

and others were conducting on behalf of the MJA using public

time and resources. App.544–66.

9

been. I think it is fair to say we have been able to

protect nothing less than the independence of the judicial branch and uphold the basic principles of our

state democracy. No small accomplishment in these

difficult times. Congratulations.” App.548–49.

Then things truly went sideways.

3. On Sunday, April 11, 2021, McLaughlin filed

an emergency motion to quash the subpoena directly

with her bosses, the Montana Supreme Court. But

she filed this motion in Brown v. Gianforte, a case in

which neither she nor the Legislature nor DOA were

parties. App.358–78. Both McLaughlin and the

court failed to provide notice or an opportunity to respond to the Legislature or the actual parties in

Brown. App.385. Yet hours later on Sunday, the

court temporarily quashed the subpoena that had

been issued to DOA to recover McLaughlin’s lost public records. App.115–19.

The Court recognized the procedural improprieties but nevertheless entertained its appointee’s motion. “McLaughlin’s motion raises serious procedural

questions. Neither the Legislature nor the Department of Administration are parties in this litigation.”

App.116. “[T]he subpoena itself does not reference

this litigation, or SB 140. Nor does it reference any

other litigation …. we cannot be certain, at this juncture, that the subpoena challenged by McLaughlin

has anything to do with the pending proceeding in

[Brown], or is properly filed herein.” App.117. The

Legislature agreed with that assessment entirely.

But unfortunately, the order kept going.

10

“Nonetheless, the actions commanded by the legislative subpoena are, facially, extremely broad in

scope, with a substantial potential of the infliction of

great harm if permitted to be executed as stated.”

App.117. “Consequently, to address these various

issues, and to prevent the infliction of harm in the

meantime …. The subpoena issued by the Legislature

on April 8, 2021, is hereby quashed pending further

order of the Court.” App.118.

On Monday, April 12, 2021, the Montana Legislature retained the Attorney General as counsel. That

same day, Lieutenant General Kristin Hansen

penned a letter to the court, relaying the Legislature’s position on its unnoticed weekend order. The

letter focused on the order’s procedural irregularities

and the Legislature’s view that the court lacked jurisdiction to quash—even temporarily—a nonparty’s

duly authorized subpoena issued to a different nonparty. App.379–81.

In response, Administrator McLaughlin took the

hint and filed her own lawsuit to quash the Legislature’s subpoena. That lawsuit was an original petition with her bosses at the Montana Supreme Court.

See McLaughlin v. Montana State Legislature, OP

21-0173 (Mont.); App.455–489. While recused in

Brown, Chief Justice McGrath didn’t recuse from

McLaughlin.

Two days later, the Legislature moved to dismiss

the McLaughlin case. App.192–202. Beyond jurisdictional arguments, the Legislature argued dismissal was required by the separation of powers, due

process, and judicial ethics rules. The Legislature

11

reiterated that the subpoena sought to recover the

inappropriate, unethical, and potentially unlawful

judicial communications McLaughlin failed to retain—not any case-related and decisional documents.

App.193–95. Not only was McLaughlin the court’s

appointee, her case was intended to protect them.

App.197–98. So from the start, the court’s maintenance of the action was entirely inappropriate.

App.198–200. The motion further noted that the

court had failed to comply with ethics rules requiring

it to disclose its ex parte communications with

McLaughlin. 4 App.198.

4. The same day—April 14—the Legislature

formed the Special Joint Select Committee on Judicial Accountability and Transparency to investigate

judicial document retention, judicial lobbying, and

other potential judicial impropriety. App.536. The

next day, legislative leadership issued an additional

subpoena to McLaughlin and subpoenas to each Supreme Court Justice. 5 App.577–600. The subpoenas

ordered appearance before the Special Select Committee on April 19, 2021, and the production of specific public records: (1) communications regarding judicial branch polls during the 2021 legislative session; (2) communications regarding judicial branch

lobbying during the 2021 legislative session; and

(3) communications indicating use of state time and

resources on behalf of the Montana Judges Associa4 To date, the court has failed to disclose its ex parte communications with McLaughlin and never gave the Legislature the

opportunity to respond to those communications.

5 The Legislature first issued the second round of subpoenas on

April 14, 2021, but reissued them on April 15, 2021, to correct a

typographical error.

12

tion, a private, non-profit organization. App.580–81.

McLaughlin’s new subpoena also ordered her to produce her computer, with the aim of preserving or recovering public records she failed to retain. App.577–

78. But the subpoenas were careful to note that the

Legislature wasn’t interested in case-related deliberations, drafts, and other decisional materials; nor

was it seeking personal and confidential documents.

App.582.

5. After a second emergency motion from their

appointee, McLaughlin, the Supreme Court on April

16, 2021, issued a combined order in both the Brown

and McLaughlin cases. App.1–9. The court requashed the April 8 legislative subpoena. It proceeded to temporarily enjoin McLaughlin’s second subpoena, and then—astonishingly—it stayed its own

subpoenas. App.7–8. So the day after receiving their

subpoenas, six Montana Supreme Court justices

ruled—in their own favor, on their own subpoenas, in

a case to which they were not party—to put those

subpoenas on ice. App.1–9.

Alone, Justice Rice recused from McLaughlin and

requested that the Montana Supreme Court not stay

his subpoena so that he could seek relief in a district

court. App.8, 10–11. 6

6 Chief Justice McGrath acted less scrupulously.

Though still

recused in Brown, he signed the April 16 order entered in both

Brown and McLaughlin. App.9. (Stating “[t]he Chief Justice

has signed this order only for purposes of participating in 210173” (McLaughlin)); but see App.6. (According to the Court, the

legislative subpoenas “are directly or indirectly related, and certainly have directly arisen from” Brown).

13

Also on April 16, Chief Justice McGrath sent a

letter to the Legislature stating that the emails requested by the Legislature were categorically privileged and that the Court would not produce them.

App.631 (“the subpoenas issued this week broadly

seek confidential judicial communications that we

cannot divulge.”). Before even preliminary briefing

concluded in that case, the Chief Justice broadcasted

that the court had already decided to rule against the

Legislature on the merits—in its case against the

court.

So much for the “further proceedings” the

court mentioned the same day in its order. App.7.

6. On April 19, 2021, the Select Committee conducted its hearing. App.538. McLaughlin failed to

appear or produce any materials. App.542. All the

Supreme Court Justices appeared. App.542–43. But

only Justice Sandefur produced some of the requested

public records. App.601–20.

During the hearing, Justice Baker testified that

“the Chief Justice works with [McLaughlin] day in

and day out” and that “on legislative matters, the

Chief is the direct contact for the Court Administrator.” App.547. The recovered emails corroborate

Justice Baker’s testimony. App.547–49. On March

24th, Chief Justice McGrath emailed McLaughlin regarding a pending bill, HB 685, requesting “[w]e

should probably get a membership vote on this and

ask who can make calls.” App.548. McLaughlin responded that day saying, “I can send it out to the

membership for a vote, but people need to not do the

‘reply to all.’” App.548.

7. On April 30, 2021, the Legislature filed a Motion to Disqualify the Justices in McLaughlin.

14

App.222–29. The Motion argued again that due process, and judicial ethics rules couldn’t tolerate the institutional and personal conflicts this case triggered

for each of the Justices: “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

production of this Court’s public records.” App.224–

25. And even absent their disqualifying connection

to McLaughlin, the Legislature argued the Justices

were now personally conflicted because they stayed

their own subpoenas. App.226–27.

The Legislature echoed these points in other

McLaughlin filings: “the instant dispute demands

negotiation because … the Court cannot serve as an

impartial tribunal when it is itself party to the case.”

App.218.

On May 12, 2021, the Montana Supreme Court

denied the Legislature’s Motion to Disqualify the

Justices. McLaughlin v. Mont. State Legislature, 489

P.3d 482 (Mont. 2021) (hereafter “McLaughlin I”);

App.12–30. The Opinion entirely dismissed the Legislature’s legitimate investigatory concerns, and instead chalked the disqualification controversy up to

legislative bad faith. App.23 (“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.”); App.23 (“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.”); App.28–29 (“Fi-

15

nally, 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.”).

The Court didn’t disagree that it bore disqualifying interests. “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.” App.27 (emphasis added). But instead of recusing, the Justices

leaned into those acknowledged disqualifying interests—invoking the Rule of Necessity and refusing to

withdraw. App.26–29.

8. On June 10, 2021, the court, 6-1, affirmed the

constitutionality of SB 140 in Brown. 488 P.3d 548,

561; App.135–191. This is notable for two reasons:

first, it shows how off-base so many Montana district

judges were on the question of SB 140’s legality. But

second, Justice Rice authored a fiery concurrence

that indicated the Justices were now taking this personally. His Brown concurrence focuses on the subject matter in McLaughlin, where he had recused.

But at any rate, he used the occasion to “address the

extraordinary, indeed extraconstitutional, actions

taken by the Legislature and the Department of Justice.” App.163 (Rice, J. concurring). He mused that

perhaps the Legislature should in future be barred

from participating in any lawsuits before the court.

But he reserved special reprobation for the attorneys

at the Montana Department of Justice, who—for rep-

16

resenting their client—he labeled “contemptuous.”

Justice Rice even compared the Attorney General

and his conduct to Andrew Jackson and the Trail of

Tears. App.168–73

9. Back in McLaughlin, the court refused to discuss the investigation or the subpoenaed documents

with the Legislature, allegedly because of the pending suit. So on June 22, 2021, the Legislature withdrew its subpoenas issued to DOA, McLaughlin, and

the Supreme Court Justices. App.518–27. And then

the Montana Legislature moved to dismiss McLaughlin as moot. App.513–17. In that motion, the Legislature repeated its position, “the only appropriate

path to resolution in this dispute between co-equal

branches of government is for the branches to negotiate and make accommodations in good faith.”

App.514–15. “That path has been foreclosed because

the Court has used this action—initiated by its appointed employee—to spurn any such negotiations.”

App.515. The Legislature withdrew the subpoenas in

“good faith” to spur negotiation. App.515. It will not

surprise the reader that the court denied that motion, too. It blamed the Legislature for its “unilateral

attempt to manufacture a conflict” by subpoenaing

the Justices, a move the court felt “directed to disrupt

the normal process of a tribunal.” App.31–39. Now

trapped in a case it never wanted to enter, the Legislature waited for the inevitable decision.

On July 14, 2021, the Montana Supreme Court issued its opinion quashing the withdrawn subpoenas.

McLaughlin v. Mont. State Legislature, 493 P.3d 980,

997 (Mont. 2021) (“McLaughlin II”); App.42–103.

The court found that the Legislature’s investigation

17

into judicial branch lobbying, record retention, and

judicial standards lacked any legitimate legislative

purpose. See App.58–74. It also preemptively ruled

that, in future, judicial pre-clearance is required before any public officials produce records responsive to

a legislative subpoena. App.80.

And by its plain terms, the opinion prohibited any

further discussions regarding the emails or their contents between legislators, between legislators and

legislative staff, between legislators and their counsel, and among counsel’s staff. App.81. It also ordered the Legislature to take measures to retrieve

any of the judicial emails that had been disseminated

to third parties—like the media. App.81–82. So, a

gag order and an order to gag.

The concurring opinions in McLaughlin picked up

where Justice Rice left off in Brown. Justice McKinnon called the Legislature’s actions a “blemish upon

Montana’s history[.]” App.99 (McKinnon, J. concurring). Justice Sandefur characterized the Legislature

as engaging in “irresponsible rhetoric that has and

will likely continue to spew forth from those intoxicated with their long-sought unitary control over the

political branches of government.” App.100 (Sandefur, J. concurring). He persisted by saying this case

was “an unscrupulously calculated and coordinated

partisan campaign.” App.100. He closed by calling

the Legislature’s investigation an “irresponsibl[e] attack and attempt to undermine the only non-partisan

branch in an effort to attain unitary, unfettered—in

effect, authoritarian—power, unconstrained by constitutional limits.” App.102.

18

The Legislature petitioned for rehearing based

upon the court’s misapplication of relevant law, new

persuasive authority, and on prudential grounds.

App.243–64. And it again raised its due process objections: “Issuing an expansive, disarming Opinion

against this backdrop confirms the Legislature’s consistent argument: it cannot obtain due process from

this Court under these circumstances.” App.251.

On September 7, 2021, the court denied rehearing. App.104–07. Throughout this tangle, neither

the Legislature nor its counsel ever disobeyed any

order of the Montana Supreme Court. The Montana

Supreme Court, meanwhile, has flagrantly disobeyed

the due process teachings of this Court.

REASONS FOR GRANTING THE PETITION

I. The Montana Supreme Court’s decision to

judge its own case conflicts with this Court’s

due process precedents.

The decisions below made a mockery of this

Court’s well-settled proscription that “no man can be

a judge in his own case and no man is permitted to

try cases where he has an interest in the outcome.”

In re Murchison, 349 U.S. 133, 136 (1955). In fact,

the Montana Supreme Court did both. It reached out

to facilitate a case brought by its appointee to conceal

its misbehavior. It even sua sponte ruled to quash

the legislative subpoenas issued to the court’s members. Manifold conflicts arose at every step of litigation, and the court ignored them all. Due process

protections exist to prevent the very judicial behavior

displayed below.

19

This petition challenges the Montana Supreme

Court’s unconstitutionally biased actions in a Montana state case. But its ramifications extend nationwide. In recent years, this Court has reminded state

judiciaries that they, too, are bound by the strictures

of the Due Process Clause. See Caperton v. A.T.

Massey Coal Co., 556 U.S. 868, 876–81 (2009); Williams v. Pennsylvania, 136 S. Ct. 1899, 1907–10

(2016). That’s largely because due process failures by

state courts—and particularly state courts of last resort—undermine “the public legitimacy of judicial

pronouncements and thus … the rule of law itself.”

Williams, 136 S. Ct. at 1909. If state high courts

can—by fiat—commandeer state disputes, breeze

past disqualifying conflicts, and rule in their own favor, then there is no guarantee to a fair state tribunal.

The Fourteenth Amendment says otherwise. This

Court should grant the petition and reaffirm its basic

guarantees of due process.

A. The Fourteenth Amendment’s Due Process Clause guarantees the Montana Legislature’s right to a fair and impartial

state tribunal.

The Montana Legislature was party to the lawsuit

below. Its rights, powers, and actions were adjudicated. It therefore possesses the same due process

protections as any other litigant. This must be, for

no court could exercise jurisdiction over a government party to resolve a substantive legal question

20

while depriving that same party of the process due

any disputant. The Legislature, moreover, may appeal to the Fourteenth Amendment because it is not

the State of Montana. See South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966) (States are not

persons under the Fifth Amendment’s Due Process

Clause); Pennsylvania v. New Jersey, 426 U.S. 660,

665 (1976) (same). And the Legislature is unaware of

any authority that excludes it from the fair tribunal

guarantees of the Fourteenth Amendment.

Constitutionally ensured due process was born in

1215. And it was achieved by a proto-legislative English baronage pursuing lasting protections from the

capricious abuses of the King and his courts.

Magna Carta, ch. 39 (1215); Chambers v. Florida,

309 U.S. 227, 235-237 (1940). The Due Process

Clause “was intended to guarantee procedural standards adequate and appropriate” to ensure fair tribunals “free of prejudice, passion, excitement, and tyrannical power.” Id. at 237; see also id. at n.10 (noting Magna Carta’s influence on the eventual abolition of the Court of Star Chamber). This Court’s decisions make clear that these ancient protections extend to all parties in litigation. See Bracy v. Gramley, 520 U.S. 899, 904–05 (1997). From the beginning, due process was closely connected to the separation of powers. The barons—and later, Parliament—understood due process to protect their right

to fair, unbiased tribunals. The same must be true

for American legislatures, today.

21

B. The Court violated due process by assuming jurisdiction and ruling in a case over

which its members had direct institutional and personal interests.

Due process principles are first principles. “No

man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment,

and, not improbably, corrupt his integrity. With

equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.”

FEDERALIST No. 10, p. 56 (R. Scigliano ed. 2000)

(Madison). A “fair trial in a fair tribunal,” In re Murchison, 349 U.S. at 136, “requires an absence of actual bias in the trial of cases.” Id. The Due Process

Clause originally incorporated the common law rule

that a judge must recuse himself when he has “a direct, personal, substantial, pecuniary interest in a

case.” Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 876 (2009).

“The Due Process Clause of the Fourteenth

Amendment establishes a constitutional floor.”

Bracy, 520 U.S. at 904. And while most judicial disqualification claims are resolved “by common law,

statute, or the professional standards of the bench

and bar,” the “floor established by the Due Process

Clause clearly requires a … a judge with no actual

bias against the defendant or interest in the outcome

of

his

particular

case.”

Id.

at

904–

05 (quoting Withrow v. Larkin, 421 U.S. 35, 46

(1975)). The Constitution requires recusal where

“the probability of actual bias on the part of the judge

or decisionmaker is too high to be constitutionally

tolerable.” Withrow, 421 U.S. at 47.

22

This Court applies objective standards to determine whether the average person in the judge’s position is likely to be neutral or whether there exists an

unconstitutional potential for bias. See Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 881 (2009).

“Every procedure which … might lead him not to

hold the balance nice, clear and true between the

State and the accused, denies the [accused] due process of law.” Tumey v. Ohio, 273 U.S. 510, 532

(1927).

Applying these objective standards, it’s hard to

imagine a clearer exhibition of bias than the one displayed by the Montana Supreme Court below. Most

obviously, in the April 16, 2021 order, the court

stayed the legislative subpoenas issued to the nonparty Justices themselves. App.8. The very Justices

signing the order directly benefited from it. They

granted themselves relief. In one stroke, the court

both revealed “a direct, personal, substantial … interest in [the] case,” Caperton, 556 U.S. at 876, and

acted to advance it. That’s “actual bias,” plain and

simple. See Gramley, 520 U.S. at 904. The Justices’

refusal to disqualify unequivocally violated due process. 7

7 In the court’s opinion refusing to self-disqualify, it faulted the

Legislature for failing to allege “a member of this Court has an

actual bias, prejudice, or is otherwise unable to adjudicate these

proceedings fairly and impartially” in violation of this Court’s

precedents. McLaughlin I, App.23. It continued: “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.” App.21. In addition to being untrue, these statements—a panegyric to insincer-

23

Quashing Administrator McLaughlin’s subpoenas

reveals the same actual bias at work. After all, the

various subpoenas were all targeting the same documents—illicit judicial communications. In fact, the

entire legislative inquiry began after learning of

troubling and inappropriate judicial emails that

McLaughlin merely facilitated. And to the extent the

Legislature specifically investigated McLaughlin’s

individual conduct, that too implicates the Montana

Supreme Court. See e.g. App.223–26 (Montana Legislature’s Motion to Disqualify Justices in the Supreme Court in the State of Montana). By law, the

Justices define McLaughlin’s duties and direct her

work. MCA, § 3-1-702(10); see also App.547 (Justice

Baker’s testimony that “the Chief Justice works with

[McLaughlin] day in and day out” and that “on legislative matters, the Chief is the direct contact for the

Court Administrator.”). Any ruling by the Montana

Supreme Court, therefore, involves judgment over

the Court’s own actions. Adjudicating the dispute

arising from an investigation into McLaughlin’s conduct necessarily requires the Justices to pass judgment on their own (non-judicial) conduct and (nonjudicial) decisions. And that of course preys upon the

weakness of human nature in a way this Court has

warned against: “there remains a serious risk that a

judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result ….

[T]hat his or her own earlier, critical decision may

have set in motion.” Williams, 136 S. Ct. at 1907.

ity—came after the nonparty Justices stayed their own subpoenas.

24

But the due process violations don’t stop with the

orders slapping down legislative subpoenas directed

to themselves and McLaughlin.

Look how the

McLaughlin case started—with an unnoticed, weekend motion and court order, facilitated by stillundisclosed ex parte communications, in a case to

which neither McLaughlin nor the Legislature were

parties. See App.358–78; App.115–19; App.379–81.

Atop that, the court accepted original jurisdiction—

which may only be invoked to resolve purely legal

questions—and presumed to settle sharply contested

factual disputes. McLaughlin II, App.64–65, 74–75

(absolving themselves and McLaughlin of any

wrongdoing; for example, concluding that McLaughlin’s actions were not prohibited lobbying and that

the subpoenaed public records contained confidential

information); see Hernandez v. Bd. of County

Comm’rs, 189 P.3d 638, 641 (Mont. 2008) (the Montana Supreme Court will accept original jurisdiction

when, among other things, “the case involves purely

legal questions of statutory and constitutional construction”). And then, the court refused to relinquish

the case after the Legislature withdrew the subpoenas. App.31–39. Perhaps that’s why Justice Rice—to

his credit—recused when McLaughlin was filed, and

challenged his subpoena in a different court. App.8. 8

From the first, the six McLaughlin Justices determined to pilot this dispute to their desired outcome. The Chief Justice’s communications showed

that the fix was in. In its April 16 order, the court

stated some of the subpoenaed documents “may very

8 In that case, the Montana Legislature did not seek to disqualify any judge on the grounds of impermissible bias.

25

well be reachable by legislative subpoena.” App.6.

But in a letter that same day, the Chief Justice informed the Montana Legislature that “the subpoenas

issued this week broadly seek confidential judicial

communications that we cannot divulge.” App.631.

And the six McLaughlin Justices acknowledged

that they faced disqualifying interests. McLaughlin

I, App.27. Undeterred however, they invoked the

Rule of Necessity: “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

disqualified, none are disqualified.” App.27. (internal

quotation marks and citation omitted). That the

Montana Supreme Court accepted the premise of the

Rule of Necessity—that “all judges are disqualified”—says it all. App.27.

The Justices below harbored direct interests in

the outcome of McLaughlin. Under any objective

standard, the court’s actions presented not only an

unconstitutional potential, but a guarantee, of bias.

See Caperton, 556 U.S. at 881.

C. The McLaughlin Justices violated due

process by refusing to withdraw where

their interests created the appearance of

bias and a probability of unfairness.

Yet due process will not tolerate “even the probability of unfairness.” In re Murchison, 349 U.S. at

136; cf. Mistretta v. United States, 488 U.S. 361, 407,

109 S. Ct. 647, 102 L. Ed. 2d 714 (1989) (“The legitimacy of the Judicial Branch ultimately depends on

its reputation for impartiality and nonpartisanship.”); Williams, 136 S. Ct. at 1909 (“A multimember

court must not have its guarantee of neutrality un-

26

dermined, for the appearance of bias demeans the

reputation and integrity not just of one jurist, but of

the larger institution of which he or she is a part.”).

“[T]he Due Process Clause has been implemented

by objective standards that do not require proof of actual bias.” Caperton, 556 U.S. at 883 (citing Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 825

(1986); Mayberry v. Pennsylvania, 400 U.S. 455, 46566 (1971); Tumey, 273 U.S. at 532). This Court’s test

is “whether ‘under a realistic appraisal of psychological tendencies and human weakness,’ the [judge’s]

interest ‘poses such a risk of actual bias

or prejudgment that the practice must be forbidden if

the guarantee of due process is to be adequately implemented.’”

Caperton,

556

U.S. at

883–

84 (quoting Withrow, 421 U.S. at 47). So if there exists a “probability of unfairness,” due process mandates a “stringent rule” that requires the recusal of

judges “who have no actual bias and who would do

their very best to weigh the scales of justice equally.”

In re Murchison, 349 U.S. at 136.

This probability of unfairness “cannot be defined

with precision,” because “[c]ircumstances and relationships must be considered.” Id.

But nonpecuniary conflicts “that tempt adjudicators to disregard neutrality” offend due process. Caperton, 556

U.S. at 878. A judge must withdraw where she participates in the accusatory process, see In re Murchison, 349 U.S. at 137, “becomes embroiled in a running, bitter controversy” with one of the litigants, Mayberry, 400 U.S. at 465, or becomes “so enmeshed in matters involving [a litigant] as to make it

appropriate for another judge to sit.” Johnson v.

Mississippi, 403 U.S. 212, 215–16 (1971).

27

For the reasons set forth above, Petitioners respectfully submit that after a review of “all the circumstances of this case, due process requires

recusal.” Caperton, 556 U.S. at 872. But additionally, the nature and heated rhetoric of this interbranch

dispute created an intolerable “risk of actual bias and

prejudgment.” Caperton, 556 U.S. at 883–84; see

App.381 (“The Legislature will not entertain the

Court’s interference” into the Legislature’s investigation); App.226 (“The Justices are [] umpiring their

own game”); App.230–40; McLaughlin I, App.22;

McLaughlin II, App.99 (McKinnon, J., concurring);

App.100–02 (Sandefur, J., concurring); Brown,

App.163,173 (Rice, J., concurring). This is a “running, bitter controversy” if there ever was one. Mayberry, 400 U.S. at 465. The six McLaughlin Justices

should have done what Justice Rice did: withdraw.

In sum, the Montana Supreme Court acted

with actual bias and prejudice; a fortiori, the court’s

behavior and surrounding circumstances created a

“probability of unfairness” so strong, recusal was

mandatory. In re Murchison, 349 U.S. at 136. But

the six McLaughlin Justices refused to withdraw.

They charged ahead, ensuring a result that bailed

themselves out of an investigation prompted by their

own inappropriate behavior. App.630 (Chief Justice

McGrath admitting he “inappropriately indicated a

personal preference to oppose” pending legislation).

And that violated the rights of the Montana Legislature guaranteed by the Due Process Clause and this

Court’s precedents. This Court should grant the petition and reaffirm that—even in Montana—“no man

can be judge in his own case.” Walker, 388 U.S. at

320.

28

II. Montana’s Supreme Court Justices improperly invoked the Rule of Necessity to justify

retaining jurisdiction in a case where they

had disqualifying conflicts.

The Montana Supreme Court admitted to its disqualifying conflicts but invoked the Rule of Necessity

to avoid recusal. App.27. But as a matter of law, the

Rule doesn’t apply to a situation like this; and as a

matter of fact, there was no necessity.

The court’s invocation of the Rule of Necessity

conflicts with this Court’s decision in United States v.

Will, 449 U.S. 200 (1980). There, this Court invoked

the Rule to hear a case involving whether the Compensation Clause, Art. III, § 1, prohibited Congress

from modifying the annual cost-of-living increases for

federal judges. Id. at 217. This Court applied the

Rule—and all the parties agreed it applied—because

the case necessarily implicated the financial interests

of every federal judge and Supreme Court Justice.

Id. at 212. Without overcoming that inherent disqualification, no federal court could have heard the

case, and the litigants “would be denied their right to

a forum.” Id. at 217. Will differs markedly from this

case.

First, the case below didn’t involve the interpretation of a provision affecting judicial compensation, it

involved potential judicial branch misconduct. If the

conflict truly implicated the entire judiciary—and judicial review was the only feasible path to resolution—the Montana Supreme Court could have selected impartial retired judges to hear and decide the

case. See MCA § 19-5-103(1)(a)–(b); MONT. CONST.

art VII, § 3(2). The Montana Supreme Court has also

29

routinely appointed mediators and special masters.

See Mont. R. App. P. 7 (“Mandatory appellate alternative dispute resolution”).

Second, the parties below did not agree that the

Rule of Necessity applied. And this is especially important because the case arose from a high-stakes

and acrimonious interbranch dispute. App.203–21.

The court’s insistence on skipping negotiation and

immediately coopting that dispute into the judicial

process—over the Legislature’s objections—presents

separation-of-powers problems not extant in Will.

App.236–39. Unlike Will, a nonjudicial forum was

(and remains) available to resolve this dispute between Montana’s Legislature and Judiciary—

negotiation and accommodation—but the Montana

Supreme Court flatly refused to pursue it. Will, 449

U.S. at 217 (invoking the Rule where there was no

other forum). App.55.

Third, the Court in Will interpreted the Compensation Clause—which was intended to protect “the

public interest in a competent and independent judiciary.” Will, 449 U.S. at 217. Here by contrast, refusing to relinquish the case primarily served the

unique interests of the Justices. It permitted them to

resolve the legal question of legislative subpoena

power, and by emasculating that power, to conceal

judicial branch misbehavior from the light of day.

The Justices proved it over and over again: when

they initially acted on their appointees’ motion in the

wrong case, when they quashed their own subpoenas,

when they refused to recuse, and when they issued

an ultimate decision “aggrandizing [the judicial

branch’s] power at the expense of [the legislative]

30

branch.” Zivotofsky v. Clinton, 566 U.S. 189, 197

(2012) (internal quotation marks and citation omitted); App.8; App.27–29; App.42–82.

The Montana Supreme Court’s application of the

Rule of Necessity adulterates the Rule as Will described and applied it.

The Rule also could not apply below because the

Montana Legislature is not a vexatious litigant who

seeks to manipulate the normal processes of judicial

review. Again, the Legislature was dragged reluctantly into the case below as a respondent. So the

cases principally relied upon by the Montana Supreme Court to invoke the Rule don’t apply. See Ignacio v. Judges of the United States Court of Appeals

for the Ninth Circuit, 453 F.3d 1160 (2006); Haase v.

Countrywide Home Loans, Inc., 838 F.3d 665, 666–79

(5th Cir. 2016); Bolin v. Story, 225 F.3d 1234, 1238

(11th Cir. 2000); Switzer v. Berry, 198 F.3d 1255,

1257 (10th Cir. 2000); Tapia-Ortiz v. Winter et al.,

185 F.3d 8, 10 (2d Cir. 1999). In Ignacio, for instance, the plaintiff transparently named every

Ninth Circuit Judge in an attempt to obtain judicial

review outside that circuit. Ignacio, 453 F.3d at

1165. The Ninth Circuit felt the Rule necessary to

prevent Ignacio from “destroy[ing] the only tribunal

with power” and exercising “a veto right over sitting

judges.” Id. It was both erroneous and disingenuous

for the court to compare the Legislature to litigants

employing these dodgy tactics.

McLaughlin I,

App.26–28.

It bears repeating: the Montana Supreme Court’s

own actions—not the Legislature’s—created and

deepened the Justices’ disqualifying interests.

31

The Montana Supreme Court improperly invoked

the Rule of Necessity to sidestep their obligation to

recuse. What’s left then? Only the court’s premise

that all the Justices possessed disqualifying interests. And absent the Rule of Necessity, the Justices’

only choice under this Court’s precedents was to

withdraw. Failing to do so violated due process.

CONCLUSION

What was axiomatic for James Madison must today be reaffirmed in Montana. The Court should

grant the petition and reassert the basic promise of

due process—that no one can be the judge in his own

case.

Respectfully submitted,

AUSTIN KNUDSEN

Attorney General

KRISTIN HANSEN

Lieutenant General

DEREK OESTREICHER

General Counsel

DAVID M.S. DEWHIRST

Solicitor General

Counsel of Record

BRENT MEAD

Assistant Solicitor General

MONTANA DEPARTMENT

OF JUSTICE

215 N Sanders

Helena, MT 59602

David.Dewhirst@mt.gov

(406) 444-2026

Counsel for Petitioners