011GINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 22-0229 

SISTER MARY JO MCDONALD; LORI MALONEY; 

FRITZ DAILY; BOB BROWN; DOROTHY 

BRADLEY; VERNON FINLEY; MAE NAN 

ELLINGSON; and the LEAGUE OF WOMEN 

VOTERS OF MONTANA, 

Plaintiffs and Appellees, 

v . 

CHRISTI JACOBSEN, 

Montana Secretary of State, 

Defendant and Appellant. 

-j 

JUN 1 4 2022 

Bowen Cirefinwood 

Clerk of Supreme Cour• 

Stato of tylo,,trA,.., 

ORDER 

Defendant and Appellant Christi Jacobsen, Montana Secretary of State, via counsel, 

has moved to disqualify the Chief Justice and the six Associate Justices of this Court from 

hearing this appeal. Plaintiffs and Appellees Sister Mary Jo McDonald, Lori Maloney, 

Fritz Daily, Bob Brown, Dorothy Bradley, Vernon Finley, Mae Nan Ellingson, and the 

League of Women Voters of Montana oppose Jacobsen's motion. 

This appeal involves a constitutional challenge to HB 325 which, if approved by 

voters, would change how Montana Supreme Court Justices are elected. In Reichert v. 

State, 2012 MT 111, 365 Mont. 92, 278 P.3d 455, this Court considered the same issue 

when the State appealed from a district court order that directed the decertification of a 

legislative referendum that likewise sought to change how Montana Supreme Court 

Justices are elected. The Court concluded that the fact that the Justices could potentially 

run for reelection did not establish that their impartiality might reasonably be questioned. 

Reichert, ¶ 50. The Court thus concluded that recusal was not warranted. Reichert, ¶ 51. 

We recently reaffirmed Reichert's reasoning, relying on it in part in denying the 

Legislature's motion for disqualification of all Justices in McLaughlin v. Mont. State 

06/14/2022

Case Number: DA 22-0229
Legislature, 2021 MT 120, 404 Mont. 166, 489 P.3d 482, a case involving the Judicial 

Branch's Court Administrator. In McLaughlin, we relied on § 2.7 of the Montana Code of 

Judicial Conduct and on the "Rule of Necessity," which applies "[w]hen the matter to be 

decided affects the interests of every judge qualified to hear it[.]" 

McLaughlin, ¶ 14. We explained that "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.' 

McLaughlin, ¶ 14 (citations omitted). 

We have determined that Reichert and McLaughlin govern the outcome of the 

present motion. For the same reasons that disqualification of the Justices of this Court was 

not warranted in those cases, it is not warranted here. As we noted in Reichert, "the 

potential" that any given member of this Court could seek re-election and "the potential" 

that a district judge called in to substitute also could decide to run for the Supreme Court 

meant that "no judge in this state—indeed, no otherwise qualified person with "the 

potential" to run for Supreme Court justice—could sit on [the] case," thereby invoking the 

Rule of Necessity. Reichert, ¶ 37. That "potential" also did not amount to the "direct, 

personal, substantial, and pecuniary" interest requiring disqualification. Reichert, ¶ 38 

(quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825-26, 106 S. Ct. 1580, 1587-88 

(1986)). The same holds true here. 

Because we have determined that disqualification of the Justices is unnecessary, we 

need not reach Jacobsen's argument that certain District Court Judges should be excluded 

from the pool of potential replacement judges. 

Furthermore, on May 26, 2022, Jacobsen moved for leave to file a reply to her 

motion to disqualify and subsequently filed an amended motion for leave to file a reply 

because the first filing apparently failed to comply with M. R. App. P. 16(1). Under 

M. R. App. P. 16(3), no reply to a motion shall be filed. In this instance, Jacobsen already 

requested, and was granted, leave to file an overlength motion that was more than triple 

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Rule 16's 1,250-word limit. She now requests up to an additional 1,500 words in reply. 

We do not believe such filing is warranted or nccessary. 

THEREFORE, 

IT IS ORDERED that Jacobsen's Motion to Disqualify is DENIED. 

IT IS FURTHER ORDERED that Jacobsen's Amended Motion to File Reply is 

DENIED. 

The Clerk is directed to give notice of this Order to all counsel of record. 

Dated this 1 Li day ofJune, 2022. 

(?i L_ A-(e, 

424 ,y7 • 

Justices 

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