Second judge recuses himself from case challenging judicial appointment process

The recusal comes after Montana DOJ filed a motion seeking his disqualification

By: - April 1, 2021 7:57 pm

District Judge Kurt Krueger has become the second judge to recuse himself from a case that will determine if a law giving Gov. Greg Gianforte heightened ability to fill judicial vacancies is constitutional, according to MTN news.

The recusal comes after the state’s top cop filed a motion on Thursday revealing Krueger expressed a negative opinion on Senate Bill 140 — the law at the center of the case — which would eliminate the Judicial Nominating Commission and give the governor the power to fill judicial vacancies directly.

Citing the Montana Judicial Code of Ethics, the state’s Department of Justice filed a motion to the Montana Supreme Court on Thursday seeking to disqualify Krueger and other judges who commented on Senate Bill 140 in an email poll among judges.

Because Krueger wrote, “I am also adamantly oppose this bill [sic]” in a private email sent to dozens of judges, the lawsuit alleges he violated the code of ethics by making a public statement that demonstrated bias.

“The Montana Code of Judicial Conduct requires a judge to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” read a statement from Attorney General Austin Knudsen’s office announcing the court filing.

Almost immediately after being signed into law, SB140 was challenged in court. Krueger was selected to preside over the case after Supreme Court Justice Mike McGrath recused himself.

“The Governor first respectfully moves for the immediate recusal or disqualification of Krueger and any Montana judicial officer who ‘voted’ on or expressed public approval or disapproval of Senate Bill 140,” read the court filing.

In addition to requesting the disqualification of judges, the motion asks the lawsuit to be put on hold until “the court can seat an impartial and independent judicial panel to decide this case,” according to the release.

The motion stated that Montana Supreme Court Administrator Beth McLaughlin emailed every Montana Supreme Court justice and every Montana district court judge — using government email domains — requesting they “take a position” on SB140 in an email poll.

While the email chain did not reveal the poll results, it did indicate that Judge Krueger and 17 other court Judges responded to McLaughlin, according to the release. The motion requests public disclosure of all judges who voted in the poll.

While the fate of SB140 is unknown, the Senate Judiciary Committee voted Thursday to advance Senate Bill 402, which serves as a backup plan if SB140 is found unconstitutional.

The bill, sponsored by Sen. Cary Smith, R-Billings, would change the Judicial Nominating Commission’s makeup.

Currently, the commission consists of four lay members appointed by the governor, two active attorneys and one district judge. Under Smith’s bill, there would be 12 lay members appointed by the governor, giving political appointees a much stronger majority.

According to the bill, it would become “effective on the date that the clerk of the Montana supreme court certifies to the code commissioner that Senate Bill No. 140 is found unconstitutional or otherwise invalid.”

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Keith Schubert
Keith Schubert

Keith Schubert was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. Keith is no longer a reporter with the Daily Montanan.

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