A second judge in two weeks has recused himself from presiding over a case challenging the constitutionality of a law passed last month giving the governor expanded appointment power when judicial vacancies occur in the state District Court or Supreme Court.
Silver Bow County District Court Judge Kurt Krueger will recuse himself Friday, he told the Montana State News Bureau late Thursday. MTN News first reported Krueger's decision to step away from the case.
Court documents filed by the Montana Attorney General's Office on Thursday showed Krueger had opposed the law in a poll among judges when it was introduced to the Legislature in January.
"I don’t want any question about impartiality so I'm recusing myself," Krueger said in a phone interview Thursday night.
The Montana Attorney General on Thursday asked to disqualify Krueger, who had been appointed last week to preside over the last in the Montana Supreme Court.
Last week Montana Supreme Court Chief Justice Mike McGrath recused himself from a case in which former lawmakers and state officials challenged Senate Bill 140. Republican Gov. Greg Gianforte, who signed the bill into law, is the only named defendant in the case.
Montana Attorney General Austin Knudsen late Thursday issued a press release that included his filing with the state Supreme Court to disqualify Krueger from the case for taking part in a poll conducted in January among judges for their positions on SB 140, which also eliminated the Judicial Nomination Commission. The commission selected nominees to send to the governor for appointment.
Krueger, according to the email chain included in the filing, wrote from his state email account, "I am also adamantly oppose[sic] this bill."
The poll, according to the email chain, was sent out by Montana Supreme Court Administrator Beth McLaughlin, using her state email account. The original email states the poll was sent out because Yellowstone County District Court Judge Gregory Todd had asked the Montana Judges Association to weigh in on SB 140.
McLaughin's voicemail message Thursday said she was out of the office until April 6.
The Montana Judges Association has registered as a lobbyist principal this session and is registered as opposed to SB 140. Todd is the president of the association and has testified against several bills introduced this session to revise the process of the judicial branch. He has referenced in testimony in a poll of judges that found opposition to another bill, as well, House Bill 342, which would have turned judicial elections into partisan races.
Knudsen's filing invokes the Montana Code of Judicial Ethics, which prohibits judges from making statements on pending or impending cases and compels judges to be recused when their impartiality falls into question. The filing also cites the due process clauses in U.S. and Montana Constitution.
Knudsen argues Krueger's response was public because it was sent to all those who received McLaughlin's original email, which totals dozens of judges across the state. Those judges, too, Knudsen wrote in the filing, should be disqualified from presiding over the case.
Three judges appointed by former Democratic Gov. Steve Bullock are pending Senate confirmation. If rejected, Gianforte could fill their positions.