The Montana Legislative branch, led by Republican leadership, is stepping into a dispute in the Montana Supreme Court, where an internal poll capturing judges' opinions on a new law has stirred concerns about impartiality in a legal challenge against the governor.
Senate President Mark Blasdel and Speaker of the House Wylie Galt issued a joint letter to Montana Supreme Court Administrator Beth McLaughin on Friday requesting all communications between McLaughlin and members of the judicial branch regarding their responses to a poll soliciting judges' opinions on Senate Bill 140.
That bill, now law, granted the governor expanded appointment power of a vacancy in the state district courts and Montana Supreme Court and has been challenged as unconstitutional. On Thursday, the Montana Attorney General's Office filed in the Supreme Court an email chain containing the poll responses from 18 district court judges, including the judge who was presiding over the legal challenges before saying he'd step aside.
Blasdel and Galt, both Republican legislative leaders, sent a joint statement on the request to the Montana State News Bureau on Friday.
"The Legislature recently learned that the Montana Judge’s Association asked judges to comment on pending legislation via an online survey. We have serious concerns about how the judges’ responses to this survey may harm the appearance of judicial impartiality. We are requesting information from the Supreme Court Administrator so we can determine the scope of the judges’ comments on legislation that may be challenged in the courts. 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," the statement reads.
The letter requests a response by April 7.
Republican Gov. Greg Gianforte signed SB 140 in March, eliminating the longstanding Judicial Nomination Commission and granting himself direct appointment power over vacancies in state district courts and Supreme Court, despite a great angst on the matter from the State Bar of Montana and the Montana Judges Association, through testimony by Yellowstone County District Court Judge Greg Todd. Supporters of the bill argued the commission was already a liberal-leaning body and abolishing the commission would merely pull the curtain back on the partisan process, while opponents called the proposal a "power grab."
Within 24 hours of Gianforte signing the bill into law, former state lawmakers and officials and the Montana League of Women voters petitioned the Supreme Court to find the law unconstitutional. Gianforte is the only named defendant in the case.
"Montanans must have confidence that judges who hear their cases are impartial and fair," a spokesperson for Gianforte said in an email. "Recent reports that members of the judiciary are taking positions on matters that will appear before them in the courtroom are troubling."
A week later, Supreme Court Chief Justice Mike McGrath recused himself from the case; McGrath told MTN News he recused himself because he had met with Gianforte to urge him against signing SB 140. Silver Bow County District Court Judge Kurt Krueger, assigned to replace McGrath on the case, recused himself Friday, as well, after the Montana Attorney General's Office included in court filings an emailed poll for the Montana Judges Association that Krueger had "adamantly" opposed the bill in January. In the court filings from the Attorney General's Office, 18 judges responded to the poll.
The wide majority of judges who responded to the poll opposed SB 140, fearing its passage would only deepen the shade of partisanship in the process of appointing judges to the bench. Ravalli County District Court Judge Jennifer Lint said she "loathe(s) to place the power of review of potential judges in one person's hands."
A handful of the judges suggested changes to the Judicial Nomination Commission, and one proposed an entire "overhaul," citing inappropriate and strange questions from committee members during the process. One judge said he was grilled about his religion, and another said a layperson on the committee asked if her husband had approved of her applying to be a judge.
"It does appear some improvements in the process may be advisable, but if the main concern is politicization, this bill goes the other direction," Lake County District Court Judge James Manley wrote in response to the poll.
Krueger told the Montana State News Bureau on Thursday he would recuse himself to avoid any questions about impartiality in the case. Attorney General Austin Knudsen, in the same filing that called for Krueger to be removed from the case, called for all judges to issued an opinion in that poll to be disqualified from the case.