6 Justices To Hear Judicial Nomination Commission Case

HELENA, Mont. (AP) — Six members of the Montana Supreme Court will consider a legal challenge to a new Montana law that would eliminate the state's judicial nomination commission and allow the governor to appoint judges to fill vacancies between elections, the court ruled Wednesday.

Republican Gov. Greg Gianforte signed the bill on March 16 and a legal challenge was filed asking the Montana Supreme Court for an injunction to block the law from taking effect and to declare it unconstitutional.

Montana’s 1972 Constitution states that Supreme Court and District Court judges must be elected, with the exception of vacancies where “the governor shall appoint a replacement from nominees selected in the manner provided by law.”

The legal challenge was filed by Bob Brown and Dorothy Bradley, lawmakers who voted to create the Judicial Nomination Commission during the 1973 Legislature; 1972 Constitutional Convention delegate Mae Nan Ellingson; Vernon Finley, a former chair of the Confederated Salish and Kootenai Tribes’ Tribal Council; and the League of Women Voters.

Chief Justice Mike McGrath recused himself from the case on March 24 without explanation. His appointed replacement, District Judge Kurt Krueger, recused himself after the Attorney General's Office filed a motion to remove him from the case because Krueger had participated in a Montana Judges Association poll on the legislation and said he opposed it.

“First, the court named a replacement it knew full-well had improperly pre-judged the case," said Kyler Nerison, a spokesperson for the state Department of Justice. "Judge Krueger should have never been appointed to hear this case nor should he have accepted the appointment — as evidenced by the fact he recused himself within minutes of his bias becoming public. Now, the court is changing its own rules to hear the case shorthanded.”

Attorney General Austin Knudsen also asked for the results of the judges poll, which the order states was 34-3 against the bill. None of the Supreme Court justices participated in the poll, the order said.

Gianforte was given until April 14 to file the state's response to the motion, in part because the Legislature wants to pass a resolution so it can file a motion to intervene.

The Judicial Nomination Commission is made up of four people appointed by the governor, two appointed by the Montana Supreme Court and one elected by the District Court judges. The commission interviews people who apply for judgeships and forwards three to five names to the governor, who must chose from among those nominees.

Opponents of the bill to eliminate the nomination commission expressed concern that having the governor appoint judges to fill vacancies between elections would inject politics into the the process.

Since the legal challenge was filed, the Senate has passed a bill that would add eight more lay members to the Judicial Nomination Commission, with all eight being appointed by the governor. If it passes, the governor would have appointment power over 12 spots on the larger 15-member commission.

The bill would only become effective if the bill to eliminate the Judicial Nomination Commission is found to be unconstitutional, the sponsor, Republican Sen. Cary Smith of Billings said when he introduced the bill on April 1.

The state Senate has yet to consider measures to confirm three District Court judges who were appointed by former Democratic Gov. Steve Bullock.

Hearings were held in the Senate Judiciary Committee in late March, but the committee has not voted on the nominations. There was no indication during those hearings that Gianforte opposed their nominations.

If the Senate rejected their nominations, the new law could allow Gianforte to appoint replacements.