The Montana Supreme Court has agreed to hear a case that challenges the constitutionality of a new law that abolished the judicial nominating commission and lets the governor directly appoint judges.
The state’s highest court also said that six of the members of the court will hear the case and denied Gov. Greg Gianforte’s motion to disqualify judges based on the state’s association of judges holding an informal poll on the bill as it wound its way through the Legislature.
The governor and the Legislature now have until April 14 — or one week from Wednesday — to file a response to the petitioners, which include 1972 Constitutional Convention delegate Mae Nan Ellingson, former Democratic legislator Dorothy Bradley, and former Republican Secretary of State Bob Brown, as well as the Montana League of Women Voters.
Gianforte and Montana Attorney General Austin Knudsen had filed a request to extend the original response deadline to allow the lawmakers to join the lawsuit. Joining a lawsuit would require legislation by both houses. They also asked that the high court stay any of the court proceedings so that they could learn more about the judges who voted in the poll. They had argued that any judge who participated in it should be disqualified from hearing the case because of possible prejudice.
However, on Wednesday, the six-justice panel of the court released the polling results, which show that 34 judges opposed the legislation while three supported it. While the names of those judges were not released, an email that shows the vote tally and had been sent by court administrator Beth McLaughlin to Supreme Court Justice Mike McGrath, lobbyist Ed Bartlett and Yellowstone County District Judge Gregory Todd was released.
McGrath had recused himself of sitting on the case, and he then appointed Silver Bow County Judge Kurt Krueger. Krueger also recused himself after it was revealed that he had voted in the informal poll.
The Supreme Court said in its order on Tuesday that none of the remaining justices had participated in the poll, and denied Gianforte’s motion to disqualify other judges.
“The Montana Judges Association opposition to the bill was presented to the Legislature and is a matter of public record,” the order said.
The order also said that the six-member panel will determine whether to call for more extensive briefing, oral arguments or decide the matter upon the original filings.
The six justices who will sit on the case are Beth Baker, James Jeremiah Shea, Laurie McKinnon, Dirk Sandefur, Ingrid Gustafson, and Jim Rice.
Senate Bill 140 abolishes the judicial nomination commission, which was established after Montana’s current state constitution was adopted in 1972. The change would allow the governor to appoint judges directly, without using the commission. No judge appointed since the new Constitution was adopted has failed to gain Senate support.
Gianforte signed the bill, and less than 18 hours later, the petitioners had challenged the new law, saying it flies in the face of the Constitution.
The legislation is especially critical because three judges, all of whom were “hold over” appointments from former Gov. Steve Bullock, a Democrat, are awaiting confirmation after having hearings in the Senate. Their fate is still uncertain, and if they’re not confirmed, it would leave three vacancies in high-volume courts. Those three judges, which have been serving for around six months, are Michele Reinhart Levine of Cascade County; Peter Ohman of Gallatin County; and Christopher Abbott of Lewis and Clark County.