2nd judge recuses himself in nomination commission case

Monday, April 5, 2021

HELENA (AP) — A second judge is recusing himself from hearing a legal challenge to a new Montana law to eliminate the Judicial Nomination Commission and allow the governor to appoint judges to fill vacancies between elections because the judge participated in a judicial survey about the bill in January.

Republican Gov. Greg Gianforte signed the bill on March 16 and a legal challenge was filed asking the Montana Supreme Court for an injunction blocking the law from taking effect and to declare the law unconstitutional.

Montana’s 1972 Constitution states that Supreme Court and District Court judges must be elected, with the exception of vacancies where “the governor shall appoint a replacement from nominees selected in the manner provided by law.”

The challenge was filed by Bob Brown and Dorothy Bradley, lawmakers who voted to create the Judicial Nomination Commission during the 1973 Legislature; 1972 Constitutional Convention delegate Mae Nan Ellingson; Vernon Finley, a former chair of the Confederated Salish and Kootenai Tribes’ Tribal Council; and the League of Women Voters.

Chief Justice Mike McGrath recused himself from the case on March 24 without giving a reason and District Court judge Kurt Krueger of Butte was assigned to replace him.

Attorney General Austin Knudsen filed a motion Thursday to disqualify Krueger and any Montana judicial officer who expressed an opinion on the bill during a poll of Supreme Court and District Court judges compiled by the Supreme Court’s administrator.

Krueger had responded to the poll with an email saying he “adamantly” opposes the bill.

Eighteen District Court judges responded via email, rather than using a voting toolbar, with 12 saying they opposed the bill. Another six said they would like to see some improvements to the judicial nominating process.

“It sounds like this bill should be studied and reconsidered in two years,” District Judge James Manley of Polson wrote in response to the poll, according to Knudsen’s motion. “It does appear some improvements in the process may be advisable, but if the main concern is politicization, this bill goes in the other direction.”

The Judicial Nomination Commission is made up of four people appointed by the governor, two people appointed by the Montana Supreme Court and one person elected by the District Court judges. The commission interviews people who apply for judgeships and forwards three to five names to the governor, who must chose from among those nominees.

Knudsen’s motion asked for disclosure of the results of the judicial poll and said “the Governor respectfully moves for a stay of this proceeding until such time as the Court can seat an impartial and independent judicial panel to decide this case.”

Montana Senate President Mark Blasdel and House Speaker Wylie Galt, both Republicans, on Friday also asked for information about the poll, the Montana State News Bureau reported.

Their letter said, in part: “The integrity of the judicial branch is critical to maintaining public confidence in government. It is our duty to investigate whether cases coming before the court can be heard in a fair and impartial manner.”

Opponents of the bill to eliminate the Judicial Nomination Commission expressed concern that having the governor appoint judges to fill vacancies between elections would inject politics into the the process.

The state Senate has yet to consider measures to confirm three District Court judges who were appointed by Democratic Gov. Steve Bullock.

Hearings were held in the Senate Judiciary Committee in late March, but the committee has not voted on the nominations. There was no indication during those hearings that Gianforte opposed their nominations.

If the Senate did not approve their nominations, the new law could allow Gianforte to appoint replacements.