February 25 2009
DA 08-0149
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 58
_________________
STATE OF MONTANA,
Plaintiff and Appellant, OPINION
v. and
WILLIAM BRUCE ELLIS, JR., ORDER
Defendant and Appellee.
_________________
¶1 William Bruce Ellis, Jr. (Ellis) has filed a motion to disqualify the Honorable Mike
McGrath from presiding over and participating in the above-described proceeding. Ellis
notes that the appeal in this matter was initiated by the State of Montana while Chief Justice
McGrath was still serving as the Montana Attorney General.
¶2 Rule 2.12(A)(5) of the Code of Judicial Conduct addresses the situations under which
a Judge should disqualify himself/herself. The Rule provides:
(A) A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited
to the following circumstances:
. . .
(5) The judge:
. . .
(b) served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public official
concerning the proceeding, or has publicly expressed in such capacity an
opinion concerning the merits of the particular matter in controversy[.]
¶3 Under the above Rule, Chief Justice McGrath, having previously served as the
Attorney General, is only required to disqualify himself from cases in which he, as Attorney
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General, participated personally and substantially or in which he expressed an opinion
concerning the merits of the matter in controversy.
¶4 The vast majority of criminal appeals that come before this Court are initiated by
defendants. The fact that Chief Justice McGrath’s name appears on the State’s answer brief
as the Attorney General, does not itself serve to trigger a disqualification of Chief Justice
McGrath. Rather, he must, on a case-by-case basis, determine whether he, personally and
substantially, participated in the case in question.
¶5 The Ellis case presently before us presents a different issue in that the State of
Montana, rather than the defendant, initiated the appeal. As Attorney General, McGrath
oversaw and approved the filing of all criminal appeals by the State of Montana. We
conclude that this oversight and approval constitutes “personal and substantial participation”
under Rule 2.12(A)(5)(b) of the Code of Judicial Conduct.
¶6 Although Chief Justice McGrath, for the above-stated reasons, has already agreed to
disqualify himself in this matter, we deem it appropriate to issue a published order to clarify
the application of Rule 2.12(A)(5)(b) in future criminal appeals.
¶7 Accordingly,
¶8 IT IS HEREBY ORDERED that in cases such as the present appeal, in which then-
Attorney General McGrath approved the filing of an appeal by the State of Montana in a
criminal case, Chief Justice McGrath shall disqualify himself from participation in the
appeal.
¶9 IT IS FURTHER ORDERED that the Clerk is directed to mail a true copy hereof to
all counsel of record.
¶10 IT IS FURTHER ORDERED that a copy of this Order be electronically published on
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the State Bar of Montana website, http://www.montanabar.org, and on the website for the
Judicial Branch, http://www.courts.mt.gov, and that notice of this Order be published in the
next available issue of The Montana Lawyer.
¶11 IT IS FURTHER ORDERED that notice of this Order be provided to the Executive
Director of the State Bar of Montana, the editor of The Montana Lawyer, the State Law
Librarian, the Clerks of the District Court with the request that they provide copies to all
District Court Judges in their county.
Dated this 25th day of February, 2009.
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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