(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Attorney General says Supreme Court justice should be removed from transgender case • Daily Montanan [1] ['Darrell Ehrlick', 'Keila Szpaller', 'More From Author', '- May', '.Wp-Block-Co-Authors-Plus-Coauthors.Is-Layout-Flow', 'Class', 'Wp-Block-Co-Authors-Plus', 'Display Inline', '.Wp-Block-Co-Authors-Plus-Avatar', 'Where Img'] Date: 2024-05-29 The Montana Attorney General’s Office has filed a motion at the Montana Supreme Court asking one of the sitting justices to be removed or recuse herself from presiding over a controversial, long-running case that centers on how transgender individuals can change their gender on a birth certificate or driver’s license. But how to change a birth certificate has little to do with the argument Assistant Attorney General Thane Johnson has forwarded in a bid to oust Supreme Court Associate Justice Laurie McKinnon. Knudsen’s office wants McKinnon removed from the case because she was the moderator at a continuing legal education conference for a session called, “Profiles in Courage,” which highlighted several attorneys who were noted for standing up for the judiciary. The petition, filed last week at the Montana Supreme Court, accuses McKinnon of violating the state’s canon of judicial ethics and said she should have intervened to stifle comments made by three attorneys and one retired state district court judge, all of whom were critical of either sitting Gov. Greg Gianforte, a Republican, and Knudsen, also a Republican. Gianforte is named in his official capacity in the court case, Marquez vs. State of Montana, and Knudsen’s office is statutorily required to defend the state and the Legislature’s actions. The Daily Montanan reached out to the Supreme Court for comment on the case, but justices do not comment on pending cases. During the session of the 2024 Bench Bar Continuing Legal Education, former Yellowstone County District Court Judge Michael Moses is reported to have said during the panel discussion: “I will follow up on (attorney) Randy (Cox’s) comment saying we aren’t going to follow that order because I had the same problem in the LBGTQ+ (sic) case that we talked about earlier.” The case in which Moses is referring is the Marquez case, but attorney Randy Cox had previously referenced a case in which he represented Montana Courts Administrator Beth McLaughlin and the lawmakers’ attempts to seize her email. During the course of a protracted court battle, Knudsen told the Supreme Court he would not follow its order to return the email. Johnson is the same attorney who had to defend Knudsen and the Gianforte administration’s decision not to follow Moses’ order during the trial to revert back to a previous policy of changing birth certificates. Moses threatened to hold the state in contempt for violating the order, for Johnson apologized, saying he was appearing before Moses with “hat in hand,” and could not explain why neither Knudsen or the administration had complied with the order. Moses then told Johnson, who was representing the state: “The court respects the candor of the new defense counsel to finally come before this court with ‘hat in hand.’ However, defense counsel could not provide a legitimate explanation of any kind for the continued noncompliance of his clients. There is no legal justification for defendants’ continued refusal to follow court orders after numerous clarifications by this court and the Supreme Court of Montana.” In the latest Supreme Court filing to remove McKinnon, Johnson said, “Whether defendants failed to follow Judge Moses’ orders in the district court case is a central issue of this appeal.” The attempt at removing McKinnon also focused on criticism some of the other attorneys made of Gianforte and Knudsen, including a comment by attorney Jim Goetz who referred to Gianforte as “Governor Gianforeskin.” “While Justice McKinnon did not make these comments herself, she failed to take measures to cease the offending discussion, nor did the honorable justice act in any manner to remove herself form the extremely questionable discussions,” the Supreme Court filing said. “Silence and inaction are often the most powerful speech.” McKinnon was serving as the moderator of the panel. “McKinnon was the leader of the continuing legal education with not only the responsibility but the ability to control the course and conduct of the (continuing legal education). It is one thing to be a member of the audience, but it is much different to be the moderator,” the brief said. However, in a reply filed at the Montana Supreme Court last week, attorneys for the American Civil Liberties Union, which is part of a group of attorneys representing the plaintiffs in the Marquez case, filed a brief that opposed removing McKinnon. “Justice McKinnon acted with the dignity and decorum befitting a justice of the Supreme Court, and never spoke or encouraged others in a manner that would come close to violating the Code of Judicial Conduct,” said the response written by Montana ACLU legal director Alex Rate. “If appellants can disqualify a justice merely by alleging that a justice heard speech related to a case pending before the court, there would be virtually no limit to a party’s ability to disqualify members of the court in high-profile cases. “The request is particularly hollow coming from the Attorney General, who has repeatedly engaged in exactly the kind of speech he now says merely hearing leads to bias. The canons recognize that justice is not so delicate, or manipulable.” The attorney general’s office cites several codes or canons of judicial conduct it believes McKinnon violated, including Canon 1: “A judge shall uphold the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety,” the canon said. It also contends McKinnon violated another section which says: “Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.” Johnson said that Montana Judicial Conduct Rule 2.12 also said that a judge should be disqualified “whenever the judge’s impartiality might reasonably be questioned.” However, the ACLU contends that had McKinnon commented or curtailed the conversation that she would have found herself in a Catch-22. “Appellants argue that Justice McKinnon should have inserted herself into the debate more, and actively weighed in on the statements by panelists to which Appellants object. Of course, doing so would lead to exactly the kind of problem the appellants are trying to manufacture here,” it said. 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