Lawmakers plan to join Gianforte in lawsuit on judge appointment

Attorney general asks for longer so lawmakers can be added to suit

By: - April 2, 2021 5:54 pm

Montana Speaker of the House Wylie Galt at a floor session of the state’s House of Representatives. (Photo by Eric Seidle of the Daily Montanan)

The Montana Legislature wants into a battle at the state’s Supreme Court regarding whether recently passed legislation can refashion the way judges are appointed in the Treasure State.

Legislative leaders from the Republican Party have asked the state’s top court for an extension in the case, which would allow the GOP-controlled Legislature to pass resolutions and join Gov. Greg Gianforte’s side.

Also on Friday, those same leaders told Lee Newspapers that they wanted the results of polling done among the judges on Senate Bill 140 to be public, and any judge who voiced an opinion on the informal poll to be recused from deciding the case.

The motions and requests filed on Friday took place against a backdrop of three judges whose nominations were submitted by former Gov. Steve Bullock, a Democrat, for confirmation, as required by the state’s Constitution. These “hold over” appointments have traditionally been confirmed by the Senate. However, this session, GOP lawmakers have turned down appointments to boards and committees made by Bullock in favor of candidates supported by Gianforte. The three judges, who have each been serving since last year, are Peter Ohman of Gallatin County, Michele Reinhart Levine of Cascade County, and Christopher Abbott of Lewis and Clark County.

Two other judges have recused themselves from overseeing the case since the lawsuit was brought less than 24 hours after Gianforte had signed the law into effect. Justice Beth Baker last week ordered Gianforte and Attorney General Austin Knudsen to respond to the filing in 14 days. However, on Friday, the Attorney General’s Office asked until April 14 to respond because the Legislature needs to “introduce a legislative resolution for the purpose before it can file its motion to intervene.”

A letter dated April 1 and signed by House Speaker Wylie Galt, R-Martinsdale, and Senate President Mark Blasdel, R-Kalispell, was attached to Assistant Attorney General Derek Oestreicher’s filing.

“The Legislature strongly supported SB140, and we intend to join your office and the Governor in defending it,” it said.

SB140 was supported along party lines in both chambers of the Legislature, passing the Senate 31-19 while passing the House 67-32. The bill changed the way judges are appointed, abolishing the judicial nomination commission, in favor of the governor directly appointing judges.

The Montana Judges Association polled judges for their comments and thoughts on the pending legislation as it went through the Legislature. Lawmakers now want to see the correspondence and the results of those polls, arguing that any judges who responded may not be impartial as the case comes to court.

Lee Newspapers also reported that Galt and Blasdel made the public records request of the court administrator and asked for a response by April 7, the date the court has currently set as the date the responses are due.

Chief Justice Mike McGrath recused himself previously and appointed Silver Bow County Judge Kurt Krueger to take his place. However, after it was learned that Krueger had “adamantly” opposed the aims of SB140, Krueger recused himself for sitting on the case.

Knudsen’s office said 18 judges responded to the poll.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.