A legal challenge to a law recently signed giving the governor direct appointment power over judicial vacancies in state courts will be heard by six of Montana's seven Supreme Court justices, the court determined in an order filed Wednesday.
The reduced court is the result of judges having issued opinions on Senate Bill 140, the legislation Republican Gov. Greg Gianforte signed in March that eliminated the Judicial Nomination Commission and gave Gianforte the power to pick judges to fill vacancies on in state district courts and the state Supreme Court. Gianforte's picks would still have to be confirmed by the Senate and run for election in the next cycle.
The six Montana Supreme Court justices wrote in the order Wednesday they had not responded to a poll on SB 140, the new law at the center of the legal challenge against Gianforte.
Chief Justice Mike McGrath recused himself from the case in March; he told MTN News he had urged Gianforte not to pursue the legislation. Silver Bow County District Court Judge Kurt Krueger, who was selected to fill McGrath's place in the case, also recused himself after the Montana Attorney General's Office revealed in court filings a judges' poll in which Krueger had indicated he adamantly opposed SB 140.
The Supreme Court's order came in response to Gianforte's motion to delay the case until the full scope of the poll could be released, so that any other judges who issued a response could be potentially disqualified from the case. The Montana Department of Justice decried the high court's decision Wednesday to move forward.
“The Supreme Court is trying to put the cash back in the vault after they got caught robbing the bank," department spokesperson Kyler Nerison said in an emailed statement. "First, the court named a replacement it knew full-well had improperly pre-judged the case. Judge Krueger should have never been appointed to hear this case nor should he have accepted the appointment — as evidenced by the fact he recused himself within minutes of his bias becoming public. Now, the court is changing its own rules to hear the case shorthanded.”
Republican legislative leadership last week issued a request to the Montana Supreme Court to turn over the poll results. Senate President Mark Blasdel and Speaker of the House Wylie Galt said in a joint statement they were investigating whether cases coming before the court could be heard in an impartial and fair manner.
The Supreme Court wrote Wednesday it had learned the final tally of district court judges who responded to the poll showed 34 opposed the bill, while three supported it.
Former state Republican and Democratic officials, along with the Montana League of Women Voters, took the legal challenge to the Supreme Court in March, one day after Gianforte signed SB 140 into law. Montana Judges Association President Greg Todd, a district court judge in Yellowstone County, opposed the bill throughout the legislative process, as did the State Bar of Montana.
The Senate on Wednesday also passed Senate Bill 402, a safety net to be triggered if the Supreme Court finds SB 140 unconstitutional. The bill, sponsored by Senate Majority Leader Cary Smith, would reinstate the Judicial Nomination Commission, but with 12 governor-appointed lay members rather than four. The bill would also restore to the commission two attorneys and one sitting district court judge, the same number as the original panel.
The confirmations of three district court judges appointed last year by former Democratic Gov. Steve Bullock have been stalled in the Senate Judiciary Committee, a panel that typically vets appointments before sending them on for confirmation or rejection in the Senate. The Senate resolutions carrying the confirmations for judges Peter Ohman in 18th Judicial District in Gallatin County, Chris Abbott in the 1st Judicial District in Lewis and Clark County and Michele Levine in the 8th Judicial District in Cascade County were held off the committee schedule until SB 140 was signed into law. Those resolutions were first heard by the committee two weeks ago. Senate Chair Keith Regier, R-Kalispell, said Wednesday he had not yet scheduled the resolutions for a vote.