IGWAL 11/10/2020
IN THE SUPREME COIJIT OF THE STATE OF MONTANA
Case Number: PR 20-0011
R 20-0011
FILED
STATE OF MONTANA, NOV 1 0 2020
CI Bowen
Greenwood
erk of Supreme
Court
Plaintiff, State of
Montana
v. ORDER
.WILLIAM E. CUNNINGHAM,
Defendant.
Defendant William E. Cunningharn, via counsel, has filed an affidavit in support of his
request to disqualify the Honorable Gregory R. Todd from presiding in Cause No.
DC-14-640 in the Thirteenth Judicial District Court, Yellowstone County, pursuant to § 3-1-
805, MCA.
Section 3-1-805, MCA, provides Ithat an affidavit for disqualification for cause must
allege facts showing personal bias or prejudice ofthe presiding judge. Section 3-1-805(1)(b),
MCA,provides in part that an affidavit Will be deemed not to have been made in good faith
ifit is based solely on rulings which can die addressed on appeal. Section 3-1-805(1)(c), MCA,
provides in part that an affidavit that does not allege facts showing personal bias or prejudice
rnay be set aside as void. Cunningharn's:affidavit alleges that the prosecuting attorneys in his
case had ex parte communication with ;Judge Todd, as evidenced by e-rnails obtained by
Cunningham's counsel that indicate that the prosecuting attorneys communicated ex parte
with Judge Todd's law clerk, including providing the law clerk with legal authority in
anticipation of arguments the prosecuthig attorneys expected Cunningham's counsel might
make in an upcorning hearing. Cunningham contends that these ex parte cornrnunications
created bias against his defense and rna9 have caused Judge Todd to issue adverse orders, to
fail to issue other others, and to place different requirements upon Cunningham's counsel than
upon the prosecuting attorneys.
Cunningham has provided evidence of ex parte communications, but he has provided
only vague allegations regarding the bias he maintains Judge Todd exhibited in this case. For
example, he maintains that Judge Todd issued a sua sponte order which "paralleled a recent
intercepted conversation between [defense counsel] and the defendant." Cunningham does
not further describe the order, the conversation he had with his attorney, or what either of
these things had to do with ex parte communications. Likewise, Cunningham alleges that ex
parte communications may have caused the court to "issu[e] orders that require[d] action by
defense counsel without the same requirements for the prosecutors[1" However,
Cunningham does not describe the order, the requirements, or why he believes such allegedly
different treatment arose from ex parte communications. Aside from nonspecific references
to adverse rulings, Cunningham provides nothing that demonstrates personal bias or
prejudice. The rulings in the case to which Cunningham refers can be addressed on appeal if
necessary, as can his claims of prosecutorial misconduct. As a result, it is unnecessary to
appoint a district judge to hear this matter.
IT IS THEREFORE ORDERED that the rnotion to disqualify District Judge Gregory
R. Todd from Yellowstone County Cause No. DC-14-640 is DENIED.
The Clerk is directed to provide copies of this Order to the Clerk of the District Court
of Yellowstone County for notification to all counsel of record in Cause No.
DC-14-640, and to the I-Ignorable Gregory R. Todd.
DATED this I 0 day of November, 2020.
Chief Justi e
2