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Another judge steps away from case deciding Gianforte’s judicial appointment powers

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Posted at 6:41 PM, Apr 01, 2021
and last updated 2021-04-02 12:04:07-04

HELENA — A state judge chosen to fill in for Montana Supreme Court Chief Justice Mike McGrath said Thursday he’ll withdraw from deciding the constitutionality of a new law giving Republican Gov. Greg Gianforte sole discretion on filling judicial vacancies.

District Judge Kurt Krueger of Butte told MTN News that he’ll formally recuse himself Friday, after it was revealed that he said in a January email that he “adamantly opposes” the bill that created the new law.

The email was in response to a poll by the Montana Judges Association, asking members where they stood on the bill, which has since passed the Legislature and been signed into law by Gianforte. The association opposed the bill during the Legislature.

Within 24 hours of Gianforte signing the bill on March 16, several people and one organization sued the governor, asking the Montana Supreme Court to declare the law unconstitutional.

McGrath took himself off the case last week and the court appointed Krueger to sit in his place.

McGrath told MTN News Thursday that he withdrew from the case because he had met with Gianforte and Lt. Gov. Kristen Juras earlier this year and tried to talk them out of introducing and supporting the bill that changed how judicial vacancies are filled.

“Obviously they didn’t listen to me,” he said.

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Montana Supreme Court Chief Justice Mike McGrath

McGrath also said it’s possible the seven-member high court will decide the issue wh only six justices and no replacement for him, because all state district judges may have taken a prior position on the bill.

Also Thursday, Attorney General Austin Knudsen filed a motion that asked for public disclosure on how judges voted on the Judges Association poll – and said the case should be delayed until the high court can seat “an impartial and independent judicial panel to decide this case.”

The motion also asked to disqualify Krueger – now, a moot point.

The bill creating the new law passed the Legislature on straight party-line votes, with Republicans in favor.

The new law gives Gianforte the power to appoint whoever he chooses to fill vacancies on the Montana Supreme Court or for state district judgeships.

Under the prior law, in force since the early 1970s, a state Judicial Nominating Commission solicited applications for open judgeships and forwarded three to five finalists to the governor – who had to choose from among those finalists, who to appoint.

The new law abolished the Judicial Nominating Commission.

The lawsuit filed March 17 says framers of Montana’s 1972 state constitution did not intend for the governor to have sole discretion to appoint judges, and that their “entire thrust” was to create a system that forwarded a list of qualified nominees to the governor.

Gianforte and Juras, an attorney, have argued that the state constitution gives the Legislature the discretion to design the process to fill judicial vacancies.

While Gianforte is defending the lawsuit, a Republican lawmaker also has introduced a bill that is a backup plan should the new law be overturned.

Senate Bill 402, sponsored by Senate Majority Leader Cary Smith, R-Billings, would expand the Judicial Nominating Commission from seven to 15 members and allow the governor to appoint 12 of the members.

The old commission had seven members, with four appointed by the governor.

The bill, which had its first hearing Thursday, says it would take effect only if the new law is declared unconstitutional.