I recently looked at Senate Bill 140, Montana’s new law eliminating the state’s Judicial Nominating Commission — an unelected body that severely limited the governor’s options to fill state court vacancies. The law is being challenged in the Montana supreme court by activists, former state legislators, and Montana’s League of Women Voters as a violation of the state constitution.
The litigation has raised a judicial recusal issue on a scale that is truly exceptional. The first judge to recuse himself, shortly after the challenge was filed against Governor Greg Gianforte in court, was Chief Justice Mike McGrath, who had lobbied the governor and Lieutenant Governor Kristen Juras against the bill. District Judge Kurt Krueger was designated to take McGrath’s place on the case.
But the perception of McGrath’s lack of objectivity was just the tip of the iceberg. As it turns out, on January 29, Beth McLaughlin, the Montana supreme court administrator, had sent emails to every supreme court and district court judge in the state requesting them to “review and take a position on” Senate Bill 140. McLaughlin’s email asked the judges to “use the voting buttons (accept/reject) on your toolbar” or to “just shoot me a note” if they could not find the voting button.
Thirty-seven judges responded to the poll — a majority of the state’s district court judges — and they opposed the bill by a margin of 34 to 3. Eighteen of the judges replied by email with their opinions as to the legislation, nearly all of them stating they opposed it. That number includes only those who sent their emails with a “reply-all” feature, which subjected it to being seen by every Montana judge. One of the replying judges was Kurt Krueger, who stated that he “adamantly oppose[d] this bill.” Governor Gianforte moved for Krueger’s disqualification, and the judge immediately recused himself.
The governor has moved for disqualification or recusal of other judges who took a position on the bill and to stay the case until all the relevant judicial communications and poll results are released to the parties. In the meantime, the Montana legislature has sought the same information by a subpoena to the Gianforte administration to retrieve McLaughlin’s emails from the state computer system. But McLaughlin hired her own lawyer and on Sunday obtained from the supreme court an order quashing the subpoena.
The next day, the Montana Department of Justice, representing the leadership of the legislature, flatly refused to recognize the court order as binding, asserting, “The Legislature will not entertain the Court’s interference in the Legislature’s investigation of the serious and troubling conduct of members of the Judiciary. The subpoena is valid and will be enforced. All sensitive or protected information will be redacted in accordance with law.”
Opponents of Senate Bill 140 who argue that it will make the courts partisan may fail to appreciate the one-sided judicial partisanship behind this spectacle, but it goes to why the law was appropriate in the first place. It remains to be seen how transparent the state judiciary is willing to be and how seriously judges take the rules regarding disqualification when their objectivity is in grave doubt.