Montana's judicial branch at center of power struggle

Kelly Laco
·5 min read

Power over Montana's judicial branch is at the center of a debate over the constitutionality of a new law that gives the governor more options to fill midterm vacancies on the state bench.

Senate Bill 140, which Republican Gov. Greg Gianforte signed into law last month, eliminated the Judicial Nominating Commission, an unelected body that greatly limited the governor's nominating power by requiring that all judicial candidates be selected from a pre-approved list.

With the passage of the new bill, Gianforte can now fill vacancies, with state Senate approval, without having to select candidates that are recommended by an unelected Commission.

At the bill signing, Gianforte committed to transparently appoint judges who are well qualified and have diverse legal backgrounds. In addition, proper constitutional checks and balances remain in place.

All interim judges nominated by the governor must be approved by the state Senate and run in the next election.

Critics claim that giving the governor more power would weaken judicial independence and make the nominating process more partisan. However, according to Lt. Gov. Kristen Juras, who assisted in drafting the legislation, the partisan concern is moot because Commission members donated almost exclusively to Democratic candidates in the past.

The Montana ACLU, the State Bar of Montana, Montana trial attorney associations and former state legislators are a few of the groups opposing the law at the Montana Supreme Court.

The issue for Montana judiciary intensified further once the issue reached the state's high court.

According to local reports, Chief Justice McGrath of the Montana Supreme Court had to recuse himself from the case because he lobbied against S.B. 140 when it was still working its way through the state legislature.

Not long after, District Court Judge Kurt Krueger, who was appointed to serve in McGrath's place, also had to recuse himself from the case. Prior to his appointment, he took a position on the legislation by participating in an online poll, calling into question his ability to impartially rule on the constitutionality of the law.

Before the bill was passed, the Montana Supreme Court Administrator conducted a poll sent via email to members of the Montana judiciary asking for their position on S.B. 140. Nearly all of the judges who replied expressed opposition to the bill.

DEMOCRATS TO PROPOSE LEGISLATION EXPANDING THE SUPREME COURT

When a member of the judiciary weighs in on legislation that may come before the court in the future, it can raise serious concerns about judicial impropriety due to the potential pre-judgement of a case.

"This is a truly exceptional occasion where judges have, on a broad scale, clearly taken a position on a bill that unsurprisingly now is law and unsurprisingly has now come before them for challenge," Judicial Crisis Network President Carrie Severino told Fox News.

"What we're seeing here underscores the importance of S.B. 140 and the need for a more accountable process for judicial nominations and illustrates the problem with activism in the judiciary in the first place."

The integrity of Montana's judicial system is also being called into question by those who believe the behavior of the judges is unfitting for their position.

Montana Republican Party Chairman Don "K" Kaltschmidt expressed that there is "grave concern that improper judgment and behavior within our High Court goes against the principles of our Party and threatens the public’s confidence in our judicial system."

"The Montana Supreme Court appears to be working to protect the questionable decisions that members of the judiciary took in prejudging legislative actions, and Montanans deserve a thorough investigation from the legislature to ensure there is accountability."

Due to concerns that the judges could improperly pre-judge the ongoing case, the Montana state legislature opened an investigation and issued a subpoena to obtain emails in the state computer system used to conduct the poll.

In a striking move, the Montana Supreme Court denied the subpoena to block the legislature from receiving the information.

Montana State House Majority Leader Rep. Sue Vinton, R-Billings, called it a "disturbing pattern of behavior from Montana’s judiciary that calls into question the fairness and impartiality of our judicial system" in a statement to Fox News.

"The Legislature formed a Special Select Committee to continue investigating these serious matters and create legislation to fix problems in the judiciary. We need to get to the bottom of this and the judicial branch of government needs to come clean with the citizens of Montana."

This week, the Montana Department of Justice, which is representing the legislature in court, stated that the subpoena is valid and would be enforced, despite the order from the state Supreme Court.

The Montana DOJ wrote in a court filing defending the subpoena, "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."

Severino also weighed in on the state Supreme Court's order to block information telling Fox News, "seeing the refusal to comply with the subpoena, simply to find out which judges had already expressed an opinion, seems to be very clear that the judge who takes a position against the law should be not the one sitting in judgement on it. This is an illustration of how activists in the judiciary are apparently unwilling to even abide by judicial standards for recusal."

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Meanwhile, the Montana DOJ is doubling down on their filing, signaling that they will not back down.

"The Supreme Court is trying to put the cash back in the vault after they got caught robbing the bank," Montana DOJ spokesperson Kyler Nerison said in an emailed statement.

As of Thursday night, all of the state Supreme Court justices had been served with a legislative subpoena and must produce information by Monday.