“The litigation has raised a judicial recusal issue on a scale that is truly exceptional. The first judge to recuse himself, shortly after the challenge was filed against Governor Greg Gianforte in court, was Chief Justice Mike McGrath, who had lobbied the governor and Lieutenant Governor Kristen Juras against the bill. District Judge Kurt Krueger was designated to take McGrath’s place on the case.
But the perception of McGrath’s lack of objectivity was just the tip of the iceberg. As it turns out, on January 29, Beth McLaughlin, the Montana supreme court administrator, had sent emails to every supreme court and district court judge in the state requesting them to “review and take a position on” Senate Bill 140. McLaughlin’s email asked the judges to “use the voting buttons (accept/reject) on your toolbar” or to “just shoot me a note” if they could not find the voting button.
Thirty-seven judges responded to the poll — a majority of the state’s district court judges — and they opposed the bill by a margin of 34 to 3. Eighteen of the judges replied by email with their opinions as to the legislation, nearly all of them stating they opposed it. That number includes only those who sent their emails with a “reply-all” feature, which subjected it to being seen by every Montana judge. One of the replying judges was Kurt Krueger, who stated that he “adamantly oppose[d] this bill.” Governor Gianforte moved for Krueger’s disqualification, and the judge immediately recused himself.”